Federal judge orders stop to enforcement of camping ban at homeless zone

FILE – A large homeless encampment is shown in Phoenix, on Aug. 5, 2020. On Thursday, Dec. 15, 2022, a federal judge temporarily halted the city of Phoenix from conducting sweeps of a huge homeless encampment downtown. (AP Photo/Ross D. Franklin, File)

White dump trucks outfitted with City of Phoenix emblems and street sweepers lined the roads near the concentrated homeless camp dubbed, “the Zone,” this morning as part of their new “enhanced clean-up” effort in the area. 

A federal judge allowed the new cleaning procedure to go forward in an order issued Thursday night but barred the city from enforcing urban camping citations or disposing of property without notice and a 30-day holding period.  

The order and clean-up came after two separate cases levied against the City of Phoenix over homelessness went in front of judges this week.  

The American Civil Liberties Union sued the city, alleging constitutional violations in “sweeps.” Two plaintiffs in the suit, who were formerly unhoused, claimed they had IDs, debit cards, medications, tents and other survival gear seized from them and disposed of by the city.  

The ACLU’s request for a preliminary injunction went in front of Judge Murray Snow on Wednesday.  

On Thursday, Snow issued a preliminary injunction. As a result the city can no longer enforce camping or sleeping bans; seize the property of an unsheltered person without prior notice unless there’s an “objectively reasonable” belief that it is abandoned, unsafe, or evidence of a crime; and can no longer destroy property without maintaining it in a secure location for a period of less than 30 days.  

The enhanced clean-up plan, which temporarily clears those camped in the Zone for street cleaning, is thought to be in response to another suit filed against the city on behalf of residents and business owners, alleging the city failed in abating the “public nuisance.”  

Yesterday, attorneys for both the city and private residents and business owners fielded a barrage of questions from Maricopa County Superior Court Judge Scott Blaney.  

Attorneys for the city filed a motion to dismiss the case while attorneys for the residents asked for a preliminary injunction forcing the city to “clean up and clear out.”  

Attorneys for the residents, Ilan Wurman and Stephen Tully, want the city to vacate the area, stating the “number one thing is the tents have to be gone.”  

Wurman said they are not telling the city how to achieve this goal, though they did offer some suggestions, including a “larger police presence,” in the area. 

Aaron Arnson and Trish Stuhan, attorneys for the city, maintained they are unable to enforce urban camping bans or force people out of the area using citations under a Ninth Circuit decision making it unconstitutional to prosecute people for sleeping outside when the number of unsheltered individuals outnumbers shelter beds.  

Tully at one point in the hearing, took on somewhat of mocking tone imitating the city, saying “It’s so complicated, we can’t do anything.” 

But the federal judges’ order affirms Arnson and Stuhan’s position. The preliminary injunction bars the city from enforcing camping and sleeping bans if there are more unsheltered individuals than shelter beds. 

Tully and Wurman are seeking a nuisance abatement. Stuhan said a nuisance abatement makes sense with something like a decrepit building.  

“But we’re not talking about concrete, we’re talking about people,” Stuhan said.  

Arnson said the plaintiffs were essentially employing the ‘not in my backyard’ argument and that even if the city was able to clear out the Zone, the problem would simply be shifted to another area in the city.  

The judge argued, though, that it may not be as concentrated. A ruling on the case is expected sometime next week.  


House passes measure to thwart boycotts of Israel

Claiming boycotts are anti-Semitic, the state House voted Monday to deny public contracts to firms that refuse to do business with other companies that do business in Israel.

Athena Salman
Athena Salman

The 37-21 vote came over the often-tearful statements of Rep. Athena Salman, D-Tempe, who told her colleagues of how her family members, some now here, some still living in occupied territories, have been treated. She said the movement, formally known as BDS – for boycott, divest, sanction – is designed to put pressure on Israel to end what she said are “Israeli human rights abuses” and illegal settlements in the West Bank.

“People have a right to boycott,” said House Speaker Rusty Bowers, R-Mesa. And he said he did not doubt that there have been “immoral acts” on both sides of the conflict.

But he said these were decisions taken in the heat of battle and in the heat of self-preservation. And Bowers said that the state has a legitimate interest in using its economic power – the power to deny public contracts – to keep people from boycotting Israel and, to his way of looking at it, the right of that country to exist.

SB 1167 still needs final Senate approval of some minor House-made changes before going to Gov. Doug Ducey, who actually signed a virtually identical bill in 2016.

Last year, however, U.S. District Court Judge Diane Humetewa enjoined the state from enforcing the law. She said the state cannot use its economy power to deny people their right to speak out and act on their personal beliefs.

A federal appeals court is set to hear arguments in June.

This new version is virtually identical to the law Humetewa found flawed – but with one key difference: It applies only to companies with 10 or more employees with public contracts worth at least $100,000. That would mean that Flagstaff attorney Mik Jordahl, who filed the original lawsuit with the aid of the American Civil Liberties Union, no longer has a case because his firm and his contract with the Coconino County Jail are too small.

It would then be up to someone else to start the legal challenge over from scratch.

Salman spoke of how her father, as a child in the occupied territories, was detained and how such practices continue today. And she said that the ever-expanding Jewish settlements on the West Bank are cutting off access to family-owned land

“If that land is annexed it is no longer our land,” Salman said.

Rep. Jay Lawrence, R-Scottsdale, said he could not support putting pressure on Israel, saying the BDS movement is fueled by “its anger at Israel and its anger at the Jewish people.”

“Arizona will not be anti-Semitic,” said Rep. Warren Petersen, R-Gilbert. “We’re not going to discriminate against Israel.”

And Rep. John Kavanagh, R-Fountain Hills, said he sees the BDS movement as an impediment to peace, seeking to force terms on Israel rather than requiring both sides to recognize each other’s right to exist.

The House action comes as Israelis go to the polls to decide whether Prime Minister Benjamin Netanyahu gets another term in office. Netanyahu, facing a difficult campaign, has teased that he might annex the occupied territories – the ones at issue in the whole BDS movement – and make them permanently part of Israel, killing any chance of a two-state solution and a Palestinian homeland.

Jared Keenan: Taking the job of a public defender to a systemic level

Jared Keenan (Photo by Paulina Pineda/Arizona Capitol Times)
Jared Keenan (Photo by Paulina Pineda/Arizona Capitol Times)

Jared Keenan is the newest hire by the American Civil Liberties Union of Arizona, one of three staffing additions the organization will make thanks to a surge in donations following President Trump’s election in 2016. Keenan becomes the first ACLU staffer in Arizona based in northern Arizona – he and his wife call Prescott home – but every Wednesday the New Jersey native and Boston University law school graduate hops on his motorcycle and rides down to Phoenix to further his work as a staff attorney at the ACLU focused on criminal justice.

Cap Times Q&AWhere are you from?

I’m originally from outside of Philadelphia. I went to law school in Boston at Boston University. My first job out of law school was at the public defender’s office in Mohave County, in Kingman. My wife and I then moved back to Boston and I was a public defender there for a few years. Then the two of us moved to Prescott and we were both public defenders until I took the job with the ACLU.

How’d you end up in Arizona?

Well, I graduated law school in 2008 and there were a lot of budget freezes and hiring freezes.

Graduating during the recession was terrible timing. I would know.

Yes. So I basically just applied to any public defender’s office that had an opening, and I interviewed with the office in Mohave County and it seemed like the place to go. It was a great place to start off.

How so?

Like most public defender jobs, they really just throw you into it right away. You are in court almost immediately. You are litigating almost immediately. You are fighting legal battles and legal issues and going to trial almost immediately. Outside of prosecutors, public defenders are really the only way to do that right out of law school.

Did you always want to be a public defender?

Not when I started law school. I wasn’t sure, actually, what I wanted to be. But about halfway through I met the woman who’s now my wife and she kind’ve really convinced me that there’s really no other job to do.

And you and your wife enjoyed Arizona so much you came back.

We do like Arizona a lot. We like hiking, camping, we do all that here a bit easier than back on the East Coast. The cost of living and city life was a lot higher in Boston, and that’s the primary reason we decided to come back to Arizona. Like I said, my wife and I both were public defenders, and as far as legal careers go, they’re not the highest paid, and we needed to find a place that we could afford to do that.

How does your work as a public defender translate into your new job?

As a public defender, you’re basically on the front lines of criminal justice reform. But the difficulty is that you are representing individual clients, individual people, and not tackling systemic issues necessarily or larger issues. You’re trying to protect the rights of individual people as opposed to sort of the higher level systemic change that I’m working on now.

What do you hope to accomplish?

The ACLU affiliates and the national organization around the country are working on the smart justice campaign. They’re trying to reduce the prison population and incarceration rates by about 50 percent around the country. Arizona is a top priority in that campaign. Arizona has the fifth highest incarceration rate in the country, and there is a lot of work that can be done and needs to be done in Arizona in regards to criminal justice reform. That’s sort of how it ties in with public defense — the issues that I was working on as a public defender are now the issues that I’m working on at the ACLU.

Any issues in particular?

One issue that I’m working on now is bail reform. Specifically, reforming the cash bail system in Arizona. As a public defender, I would often represent people who were basically in jail prior to trial when they’re presumed innocent solely because they couldn’t afford to post cash bail. So there’s a movement around the country to sort of change that so that people are not being held in jail while they’re presumed innocent simply because they can’t afford bail.

Is that going to be accomplished legislatively or through litigation?

Yes. I think with all the issues I’ll be working on with the ACLU, there’s always a possibility of a litigation component, but we certainly are not opposed in any way to try and work with the Legislature and make the fix that way. In many ways, that’d be easier, but sometimes, just not the way things play out. So yes, the goal is to sort of work both angles at the same time using litigation as part of our long-term policy change goals.

There was a push for bail reform last year that didn’t make it out of the Legislature. Does that effort still stand a chance?

As far as the need for change, I think Arizona is greatly in need of some serious change to its criminal justice system. Arizona locks up far too many people for far too long, so there’s a lot of movement that Arizona can make. Arizona is an outlier when it comes to how long we incarcerate people. When you’re sentenced to prison, you have to serve at least 85 percent (of your sentence) for all crimes — violent, nonviolent, everything. There are almost no other states that require that length of time to be served before you can be released on parole for nonviolent offences. So there’s a lot of movement that can happen in Arizona… I think it’s going to be a hard fight in a state like Arizona. But like I said, because there’s so many areas that need help, I think we can move the pendulum in the right direction.

Prosecutors to create statewide list of dishonest cops


Prosecutors have agreed to create a statewide database of officers whose truthfulness or honesty may be questionable.

But an attorney with the American Civil Liberties Union says it appears to be little more than “window dressing” on what he contends is a flawed system. Jared Keenan said that still gives prosecutors a lot of leeway to refuse to add someone to the list and, more to the point, refuse to disclose to defense attorneys exactly what it is that caused that officer’s name to be added.

And the new database itself is of little use to the public who may want to know more about the police or deputies in their community.

It is searchable only by the name of an individual officer. There is no way for anyone to get a list of all the officers from any individual department who prosecutors or their own superiors have concluded may be less than honest.

In fact, even if someone has a name that scores a hit, it doesn’t show where that person is now working or whether they’re still a sworn officer.

At the heart of the issue is what is known as the “Brady list.” It is named for a 1963 U.S. Supreme Court ruling requiring prosecutors to turn over all evidence to defense that might exonerate the defendant.

That includes the officer’s own history of being truthful.

Elizabeth Ortiz, executive director of the Arizona Prosecuting Attorneys Advisory Council, said Thursday that having a statewide list makes it easier for prosecutors to have access to information, potentially about officers they do not know.

“Because law enforcement officers may change jurisdictions during the course of their career, prosecutors need to have access to information from all Arizona jurisdictions,” she said.

And Ortiz said the list will be publicly accessible.

Jared Keenan
Jared Keenan

Keenan said that’s a plus. But he pointed out that the reasons someone was placed on the list will not be in the database. For that, individuals would have to then file public records requests with individual prosecutors or police agencies.

That information may be important, he said, and not just for those who are arrested. Others may want to know about the records of officers with whom they may be dealing on a routine basis.

And that still leaves the fact that any search has to be performed on a name-by-name basis.

The guidelines adopted by the prosecutors’ council shows a variety of things should require placement of an officer’s name on the Brady list.

That includes intentionally, knowingly or recklessly making false or misleading statements on a police report or other official document. Other factors include race, gender, ethnicity or national origin bias, a pattern of excessive force, or evidence of abuse of power or acts “that could significantly diminish the public’s trust in law enforcement.”

All that, however, presumes that a prosecutor decides to put someone on the list in the first place — and, even then, whether whatever that officer did in the first place is relevant and has to be disclosed to defense attorneys.

“The list is only as good as the information put into it,” Keenan said.

Ortiz acknowledged that nothing in the newly announced changes imposes strict standards to determine whose name goes on the list and what gets released.

“Each prosecuting agency makes its own determination regarding whether information must be disclosed under the law,” she said, saying her agency has developed ” best practices” for prosecutors “to consider in addressing the issue.”

“Most of this is going to be window dressing,” Keenan said of that decision.

He said the problems are deeper than that, particularly for defense lawyers.

“Prosecutors have every incentive to keep officers off a Brady list and not to disclose information,” he said.

“Even when prosecutors disclose information they feel is required to be disclosed under Brady they often fight the use of that information during trial anyway,” Keenan said, arguing to judges that the officer’s offenses that landed her or him on the list are irrelevant to the question of whether jurors should be able to believe the testimony. “Without those things changing, this statewide list I think is going to have very little impact.”

Sometimes it’s not even an intentional desire to keep someone off a list.

There was a 2016 incident at a Marana bar where Tucson police officer Crystal Morales, off duty, had witnessed a fight involving a relative. An internal affairs investigation initially found she was dishonest with Marana police and recommended she be fired.

But no one put her name on the list. It was only after that oversight was discovered that more than 100 criminal cases in Pima County in which she was involved were placed under review.

State lawmakers have attempted to tinker with the rules involving Brady lists, but not in a way to provide for more public disclosure or put teeth into requirements for putting an officer on the list.

In 2019, Rep. John Kavanagh, R-Fountain Hills, sponsored legislation that would have allowed law enforcement officers to actually get their names removed from the list.

What wasn’t disclosed is that the request came from Rep. Anthony Kern, R-Glendale, who was placed on the list after being fired from the El Mirage Police Department for lying to his boss about the loss of a tablet computer. Even Kavanagh said he wasn’t aware of the reason Kern wanted the measure.

Earlier this year Rep. John Allen, R-Phoenix, attempted to add an appeal process for officers to use even before being placed on the list. It also sought to preclude police agencies from using the list in hiring or firing.

That measure was approved by the House but died in the Senate.


We shouldn’t have to sue to learn prosecutors use slurs


In training materials recently obtained by the ACLU of Arizona, the Maricopa County Attorney’s Office (MCAO) refers to the people it prosecutes using the slur “crazy” and paints people with psychiatric disabilities as liars and obstacles to winning a conviction – not as human beings worthy of respect.

One training presentation explains Rule 11, a court-ordered process to determine if an accused person is competent to understand court proceedings and the charges against them. It begins with a slide reading “Rule 11 OR Exactly how crazy do I need to act to get out of here?”

Another training on mental health in homicide cases is titled: “Mental Health: Look at me, I’m CRAZY!”

Jared Keenan
Jared Keenan

These documents are telling: in the Maricopa County Attorney’s Office it is apparently acceptable to train prosecutors to dehumanize some of the most vulnerable people they prosecute.

When new prosecutors are told to immediately assume the people they’re prosecuting are lying or exaggerating, it surely becomes much easier to throw them in prison, or to not care that they’re sitting in jail without access to the mental health treatment they need.

It’s particularly concerning given the statistics regarding people who are incarcerated in jails and prisons. The presenters are dehumanizing a large proportion of the people they prosecute.

According to statistics from the Arizona Department of Corrections, about 29 percent of people currently in prison require ongoing mental health services. Nationally, about 56 percent of people in state prisons currently have a mental health disability.

What is equally troubling is how difficult it was for the ACLU of Arizona to obtain these training materials.

In May, we sued former Maricopa County Attorney Bill Montgomery after he ignored our public records request for over seven months.

We asked for basic information about how the office functions: policies, procedures, staff rosters, budget figures, and data on how the office resolves criminal cases.

Once the lawsuit was filed, MCAO slowly started releasing some of these public records. But MCAO, was still withholding some critical information, including these training materials.

It wasn’t until after Gov. Doug Ducey elevated Bill Montgomery to the Arizona Supreme Court that the Office released the insensitive training materials.

It shouldn’t take a lawsuit for the public to find out how they will be treated by their elected county attorney and the prosecutors who answer to them. But across the country, prosecutor’s offices are notorious for hiding public information, and the Maricopa County Attorney’s Office is no different.

Allister Adel was recently appointed to replace Montgomery as the head of MCAO.. In one of her first statements to the press, Adel said she is a “big believer in transparency.” Yet her office continues to withhold many general office policies that guide how prosecutors do their job, thwarting the right of Arizonans to monitor the performance of the government officials in her office. Rather than continuing Montgomery’s policy of hiding what MCAO does, Adel should stand by her own advice: “If we are doing our job right, we have nothing to hide.”

In 2020, Adel will run for election along with several other candidates in what is already turning out to be a contentious race. We look forward to sitting down with Adel, and all county attorney candidates, to find out whether they will condemn the use of offensive language in training materials and forcefully reject the mindset such language reveals.

We also want to know if the county attorney candidates will commit to making the office more transparent by promptly responding to public records requests, posting policies, procedures, and sentencing data online in an easily accessible database, and implementing a plan to meaningfully communicate with the public, and more specifically, with those communities most impacted by incarceration, like those with mental health disabilities.  Ultimately, it will be up to the voters in 2020 to hold their elected county attorneys accountable.

Jared Keenan is the criminal justice staff attorney with the American Civil Liberties Union of Arizona. He can be reached at [email protected] or on twitter at @realJaredKeenan.