Judge Finds Phoenix Homeless Encampment “The Zone” Is An Illegal Public Nuisance

phoenix homeless
The City of Phoenix is accused of concentrating the homeless population in the area between 7th and 15th Avenues and between Van Buren and Grant Streets.

The need for security guards on garbage pickup day. Police officers who are discouraged from arresting criminals. And a dead baby found in a street.

Those are just some of the facts Judge Scott Blaney of the Maricopa County Superior Court had to consider when ruling on the role the City of Phoenix has played in creating a burgeoning homeless camp for more than 1,000 people that has experienced a dramatic increase in violent crimes and public health biohazards.

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Blaney ruled Monday that the City of Phoenix “shall abate the nuisance it presently maintains” in the Zone, a series of semi-permanent tent encampments that encroach on the public sidewalks, public grounds, and public rights of way between 7th and 15th Avenues and Van Buren and Grant Streets.

The ruling in a lawsuit brought last year by several property owners, residents, and business owners in the Zone comes less than a week after a man died from being set on fire inside a garbage dumpster in the Zone.


Two Arrested For Death Of Man Set On Fire In “The Zone” Dumpster

City officials testified they have discretion in which city policies to adopt, how to enforce those policies, and how to allocate resources. The City even went one step further, arguing the issues presented in the lawsuit are not open to judicial review.

“The City therefore argues that its discretion on how to address the situation in the Zone precludes Plaintiffs from seeking relief from the Court,” Blaney wrote. “The Court disagrees.”

According to Blaney’s order, the City has the ability to abate the public nuisance through enforcement of current statutes, ordinances, and codes. This includes maintaining city-owned property in the Zone in a condition free of tents and other makeshift structures in the public rights of way and free of biohazardous materials such as human feces and urine, drug paraphernalia, and other trash.

City officials must also remove individuals who are committing offenses against the public order, reversing a policy that has allowed most homeless persons within

the Zone to avoid arrest for disturbing the peace, drunken and disorderly conduct, illegal drug use, domestic violence, and obstruction of streets, sidewalks, and other public grounds.

“The City shall be prepared to demonstrate to the Court at the July 10, 2023 Bench Trial in this matter the steps it has taken and the material results it has achieved toward compliance with this Order,” Blaney ruled.

The judge’s factual findings leading up to his ruling about the Zone included police calls that take 30-40 minutes for a response, confrontations and attacks against local businesses, and the graphic description of a “burned, deceased newborn baby found lying in the street.”

Blaney also rejected the City’s assertion that security officers are sent along with sanitation workers into the Zone in an effort to protect the homeless, noting he “does not find that reasoning to be credible.”

“The Court instead finds that the City attaches security guards to sanitation crews as a necessary precaution for the protection of the sanitation workers,” he wrote.

A critical element of the lawsuit involves the massive semi-permanent encampments that have sprung up in the Zone in recent years around the Human Services Campus, a 13-acre complex of seven buildings where non-profit organizations and government agencies offer services to homeless individuals who wish to avail themselves of assistance.

Prior to 2018, there was some limited homelessness in the area around the Human Resources Campus but no widespread encampments. Residents agree the area was generally considered safe back then.

By 2019, city officials intentionally stopped –or at least materially decreased– enforcement of various criminal, health, and other quality of life statutes and ordinances in the Zone. This decision, Blaney noted, was based in part on the City’s interpretation of the Ninth Circuit U.S. Court of Appeals’ ruling in Martin v. City of Boise.

The landmark Martin case barred cities from enforcing anti-public camping laws against homeless individuals who do not have access to adequate temporary shelter. The Martin ruling held that because people “are biologically compelled to rest” it was cruel and unusual punishment to arrest people for “involuntarily sitting, lying, and sleeping in public.”

Blaney ruled, however, that the City erroneously applied the Martin case to mean there could be no enforcement of anti-public camping laws if the homeless population in Phoenix exceeded the number of available shelter beds.

The Martin case did not involve a situation in which persons were permitted with impunity to live indefinitely on public property even if they refuse to accept a bed in a homeless shelter, the judge noted.

Blaney also addressed the refusal of the City to create “structured campgrounds” as other large cities like Denver and Los Angeles have done on vacant city land to help regulate the type of public nuisance, crimes, and biohazards seen at the Zone.

“Thus, structured campgrounds would eliminate any legal prohibition on the enforcement of anti-public camping laws, the judge wrote. “But the city has refused to pursue this viable, cost-effective option despite admitting its viability.”

His ruling also addresses the City’s policy to have Phoenix police officers provide “courtesy rides” to homeless persons from other areas to the Zone.

“City officials testified that the transportation to the Zone is for the purpose of assisting the homeless to obtain services from the (Human Services) Campus; not to encourage them to camp in the area,” Blaney wrote. “But the City simply drops the homeless off in the area and thus the City’s ‘courtesy rides’ to the Zone inevitably result in more homeless individuals residing on the streets of the Zone.”

Another City argument related to the Phoenix Police Department was soundly rejected by the judge.

There was testimony that it is the City’s preferred strategy to keep homeless persons accused of breaking the law out of the criminal justice system. Yet during the trial, Phoenix PD Commander Brian Freudenthal contended officers have discretion in deciding whether to arrest someone from the Zone.

His testimony, however, was contradicted by several patrol officers and by the City’s own policies. Most importantly, according to Blaney, the Commander’s testimony was “greatly undermined by the actual conditions in the Zone” and by the fact those “appalling conditions…continue to deteriorate.”

Although the judge gave City of Phoenix officials several weeks to demonstrate what steps have been taken to comply with his order, it is possible nothing will change any time soon.

That is because the City has the option to appeal some or all of Blaney’s ruling. There is also concern city officials will renew the legal challenge that a judge does not have standing to overrule city policy priorities.

Among those praising Blaney’s ruling is the Goldwater Institute, which filed a critical amicus brief with the Court in support of the plaintiffs. Attorney Timothy Sandefur said the organization knows the order “will not cure the problem overnight” but it is a welcome and long-overdue first step.

“Today’s ruling offers hope not just for the homeless themselves -who, after all, don’t deserve to be left in a ghettoized section of the city’s roads- but to the ignored small-business owners in the area, who are forced to try to earn a living in the midst of such chaos,” said Timothy Sandefur, Vice President for Legal Affairs at the Goldwater Institute.

Sandefur added that the plaintiffs and others in their same situation pay the city for police services to protect their rights. Instead, “their rights have been disregarded by a city policy that allows homeless people -many of them mentally ill or addicted to drugs- to scare away their customers, assault their employees, and pollute their property.”