Cities nationwide are struggling under a homelessness epidemic, but the situation is particularly grim in Phoenix, Ariz., where city leaders set aside a section of downtown as an unofficial open-air shelter known colloquially as "The Zone." Over 1,000 people now reside there, sleeping in tents on the sidewalks, where the city effectively ceased to enforce laws against drug use, public sex, defecation and urination on public and private property, and even violent crimes. Now things might begin to change, thanks to a decision by a state court judge who on Monday ruled that The Zone constitutes an illegal public nuisance.
That ruling came after law-abiding business and property owners of the neighboring area sued the city on the grounds that by inviting homeless people to reside there — and even transporting them there from other neighborhoods — Phoenix was effectively operating a giant homelessness facility.
But state law requires such facilities to protect the rights of neighbors. If a church or other community organization invites people into a neighborhood to loiter, commit crimes and violate anti-pollution laws by using the gutters as toilets, it can be held liable for operating a nuisance.
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That’s precisely what happened in a famous 1985 state Supreme Court case involving a church that offered daily meals to the homeless. The homeless people remained in the area, ruining property and committing other crimes, and the court ruled that although the church’s motives were "entirely admirable," it was illegally imposing "the costs of a charitable enterprise … in their entirety upon the residents of a single neighborhood."
The same rule should apply to the city, and Monday’s decision made clear that it does. Phoenix "created and maintains the dire situation that currently exists in The Zone through its failure, and in some cases refusal, to enforce criminal and quality of life laws," the court declared.
Indeed, police officers testified that "The Zone is off-limits to [law] enforcement," which led to a "dramatic increase in violent crime" as well as a "biohazard," due to the discharge of sewage in the streets. The judge ordered the city to remove illegal structures in the area and gave it until July 10 to prove that it had eliminated the nuisance.
Phoenix leaders had claimed their hands were tied by a 2019 Ninth Circuit ruling that held that the city of Boise, Idaho, violated the U.S. Constitution’s "cruel and unusual punishment" clause by arresting people for sleeping on sidewalks. "Human beings are biologically compelled to rest," that court reasoned, so punishing them for "involuntarily sitting, lying, and sleeping in public" was cruel — akin to punishing them for "an illness or disease." If a city lacks sufficient bed space in its shelters to accommodate the homeless, the Ninth Circuit said, it’s unconstitutional to arrest them for sleeping on the streets.
But whatever one thinks about that case, it hardly applies to Phoenix’s situation, which doesn’t involve people "involuntarily" sleeping on sidewalks for lack of shelter space. The Zone’s residents are living there indefinitely, not because they’re biologically compelled to, but because they choose not to seek other arrangements.
For example, in a different case involving the Zone, one resident testified that she has credit cards, income from Social Security, and keeps stores of food, water, and clothing in her tent. Another admitted to living on the streets for 23 years. These are hardly the "universal and unavoidable consequences of being human," which is how the Boise decision defined "involuntary." Worse, Zone residents frequently refuse to take spots in homelessness shelters when offered — preferring to remain in their tents.
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What’s more, the Ninth Circuit said in the Boise case that it was not denying cities the power to ban public camping. "Even where shelter is unavailable," it said, "an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible." Politicians in Phoenix and other cities ignored these words because they found the Boise case a handy excuse for their own inaction — but Monday’s ruling put an end to that, finding that city officials were engaged in a "glaring misrepresentation" of what that case means.
Monday’s decision offers hope for the homeless themselves; regions like The Zone are hardly humane conditions in which to live, riddled as they are with arson, pollution, infectious disease, and violent crime.
Those who need help should get it, instead of being left to destroy themselves in public. But the decision also offers hope for the unmentioned victims: the hard-working business owners in the neighborhood, whose taxes are supposed to support law enforcement efforts to protect their rights, but who are instead compelled to struggle to make a living in the face of pollution, property destruction, and mentally ill people scaring away their customers and threatening their employees.
By neglecting their duties, city officials are imposing The Zone’s costs "in their entirety upon the residents of a single neighborhood."
The Phoenix ruling says: no more.
