Earlier this month, a lawsuit against the city of Phoenix for facilitating a crime-riddled homeless encampment in the downtown area dubbed “the Zone” received a legal boost. The Zone has over 1,000 individuals, making it the largest homeless encampment in the state and one of the largest homeless encampments in the country.
The Goldwater Institute, a Phoenix-based public policy think tank and litigation organization, submitted an amicus brief in support of the lawsuit in early October. They petitioned the court to require the city to clean up The Zone.
The brief summarized that the city’s dereliction of duty violated multiple laws, including a 1985 Arizona Supreme Court decision constituting the invitation of vagrants into an area as an illegal nuisance as well as state law forbidding cities from maintaining activities that pollute public waterways.
In a press release, the Goldwater Institute’s vice president for legal affairs, Timothy Sandefur, contested that it was “outrageous” that the city would withhold police protection from the property and business owners within The Zone.
“It’s not compassion to let people live on the streets, in an atmosphere riddled with unpoliced gang violence,” wrote Sandefur. “Hardworking Phoenicians should be able to rely on the public services their tax dollars pay for — and their elected officials owe them a duty to enforce the laws.”
Sandefur highlighted one of the businesses harmed by the city’s facilitation of The Zone: Arizona Rock Products Association (ARPA), a trade organization for the mining and rock industry. Sandefur relayed how the homeless started fires, left used needles and condoms, defecated and urinated, broke into cars, trespassed, and stole food from a refrigerator on ARPA property.
“ARPA is one of the many crucial contributors to Arizona’s economy, all of whom deserve to have their public officials enforce the law and protect their rights,” wrote Sandefur. “Yet thanks to this nuisance the city has created, ARPA is finding it increasingly difficult to do business at all in Arizona.”
.@GoldwaterInst today filed a brief in support of business & property owners challenging the City of Phoenix's maintenance of one of the nation's largest homeless encampments-a nuisance that is destroying businesses in the area. https://t.co/kQjSANKUAX
The case, Brown v. City of Phoenix (CV2022-010439), was filed in August in the Maricopa County Superior Court and will be heard by Judge Alison Bachus.
The 19 plaintiffs represent property and business owners located within The Zone: Freddy Brown, Joel and Jo-Ann Coplin, Joseph and Deborah Faillace, Karl Freund, Gallery 119, Michael Godbehere, Jordan Evan Greeman, Rozella Hector, Daniel and Dianne Langmade, Ian Likwarz, Matthew and Michael Lysiak, Old Station Sub Shop, PBF Manufacturing Company, Phoenix Kitchens Spe, and Don Stockman.
In their lawsuit, the plaintiffs accused the city of Phoenix of concentrating the homeless population within The Zone. The plaintiffs noted that city officials had full authority to adopt “irrational” policies, but asserted that those policies couldn’t cause nuisance and damage to civilians.
“In short, instead of seeking to solve the homelessness crisis, the City has effectively invited this population to construct semi-permanent tent dwellings on the public sidewalks and rights of way in Plaintiffs’ neighborhood, and to make the Zone their home,” stated the lawsuit. “The City has not only permitted this illegal conduct and maintained it on public lands within its control, but it has also encouraged it through a policy of directing other homeless persons from around the city to the Zone.”
The plaintiffs noted that a “substantial portion” of the homeless residents within The Zone were mentally ill or addicted to drugs, and consistently in violation of quality-of-life ordinances prohibiting loitering, disturbing the peace, drunken and disorderly conduct, drug use, domestic violence, and obstruction of streets, sidewalks, and other public grounds.
“In the Zone and its environs, laws are violated with impunity; residents are subject to violence, property damage, and other criminal and civil violations of laws designed to protect the quality of life of residents; property values have been erased; trash and human waste litter streets and yards; and, most tragically, a great humanitarian crisis unfolds as homeless residents of the Zone die on daily basis,” read the lawsuit.
BREAKING NEWS:
Neighbors file major homeless lawsuit vs. City of Phoenix.
Phoenix has long pushed homeless into Neighborhoods. People are fed up and taking matters into their own hands. (1/2) pic.twitter.com/55FXJtQ5oW
A lawsuit filed this week by several residents, business owners, and property owners within a multi-block “zone” of downtown Phoenix seeks a court order requiring city officials to do something about the unabating homelessness crisis impacting the 19 plaintiffs.
According to the lawsuit, the largest concentration of homeless persons in Arizona has developed on properties owned by or operated by the City of Phoenix in an area between 7th and 15th Avenues and between Van Buren and Grant Streets.
Many of the persons who have constructed semi-permanent tent dwellings on public sidewalks and rights of way are experiencing mental health problems and / or drug and alcohol addiction, but city officials have enacted policies which essentially ignore those issues to the detriment of the community, the plaintiffs allege.
“Not only is the City of Phoenix failing to provide these individuals with housing and needed services, it refuses to enforce in and around the Zone quality-of-life ordinances prohibiting loitering, disturbing the peace, drunken and disorderly conduct, drug use, domestic violence, and obstructing streets, sidewalks, or other public grounds,” the lawsuit contends. “The City’s policies are not rationally designed to address any of the social ills facing the residents of the Zone and are exacerbating rather than alleviating their problems.”
Those policies not only permit illegal conduct on Phoenix-controlled public lands but city officials further encourage problems by directing homeless persons from around the city to the Zone, according to the lawsuit.
“In the Zone and its environs, laws are violated with impunity; residents are subject to violence, property damage, and other criminal and civil violations of laws designed to protect the quality of life of residents; property values have been erased; trash and human waste litter streets and yards; and most tragically, a great humanitarian crisis unfolds as homeless residents of the Zone die on a daily basis,” the lawsuit notes.
The plaintiffs seeking an order from Judge Alison Bachus of the Maricopa County Superior Court that the public encampments in Zone has created a public nuisance for which plaintiffs have a constitutional right to seek abatement of the nuisance
In addition, the lawsuit seeks an order from Bachus prohibiting city officials from taking any further action that will exacerbate the current nuisance and a separate order requiring the city to immediately abate the nuisance.
The lawsuit even points to several options available to city officials, including removal of the encampments to other public lands where they would not constitute a nuisance. Another option permitted by a 2019 federal ruling from the Ninth Circuit Court of Appeals is to create “structured camping grounds” on city property where cleanliness could be maintained along with compliance of laws and ordinances.
A more traditional option would be the availability of enough shelter space so that public camping could be prohibited. However, the lawsuit concedes the Ninth Circuit ruling currently prohibits enforcement of a public camping ban because City of Phoenix officials have failed to provide sufficient resources to address the homelessness issue.
That 2019 ruling requires municipalities to allow homeless individuals to camp on some public lands if there are not enough shelter beds. But nothing in the ruling, Martin v City of Boise, prohibits officials from enforcing quality of life ordinances and criminal laws, the plaintiffs argue.
Those plaintiffs are represented by Michael Bailey, Stephen Tully, and Ilan Wurman. They contend city officials are using the Ninth Circuit ruling “as an excuse to completely wash its hands of this crisis, leaving the homeless individuals and the surrounding neighborhood in an unimaginably horrific situation.”
The lawsuit adds Phoenix officials are entitled to adopt “irrational policies but if its policies create a nuisance and cause damage to the residents, workers, and property owners in the Zone, as they have, then the City is liable for those damages and the court may enjoin the nuisance.”
Our Country is based on the rule of law. From the rights and liberties protected by our Constitution to the statutes enacted by federal and state governments, we are a nation of laws. Unfortunately, the Biden administration has abandoned this principle. The most shocking example is the administration’s refusal to enforce federal immigration laws on our southern border. This dangerous “Open Border Policy” has placed the health and safety of Arizonans in grave danger. The Biden administration has reduced our southern border to a zone of lawlessness run by criminals making billions of dollars from illegal immigration — $7,000 to $8,000 per illegal immigrant. Further, these lawless crooks profit off the sale of lethal drugs such as fentanyl and methamphetamine, all the while raping women, molesting children, and assaulting and murdering thousands of victims.
We have petitioned, complained — and, at times, begged — for the federal government to help, but to no avail. The sad reality is that there is no help on the way. We are on our own.
But all is not lost. Embedded in our Constitution is the principle of federalism. Specifically, under the Tenth Amendment, powers not delegated to the federal government are reserved to the States (and the People). Federalism provides states with the power and authority to protect the safety and welfare of their citizens through new and innovative solutions without relying on the federal government.
Thus, we do not have to rely on the federal government to secure our border with Mexico. Rather, we can use state law and resources to address it on our own. We can begin securing our border by enforcing state laws that protect our citizens and their property. This can be accomplished by creating a state enforced No Trespassing Zone along the border.
The No Trespassing Zone is a simple concept. First, persons entering the country illegally must, at some point, enter private or state land. If given reasonable notice that such entry constitutes trespassing (through the posting of “No Trespassing” signs), they can, and will, be arrested for trespassing. In addition to trespass, those entering the No Trespassing Zone may be arrested and prosecuted for the criminal damage they cause to state and private property. Additionally, the trespassers and the cartels will be prosecuted for any illegal drugs and weapons they carry into the Zone.
Second, entry into the No Trespassing Zone is detected by placing a “virtual wall” along the Zone. This technology, which employs hidden cameras placed in strategic locations, provides crystal-clear, real-time images of persons entering a surveilled area. This “virtual wall” technology is already in place on the border in Cochise County and has been funded by the Arizona legislature to extend to Yuma County.
Third, the policy requires the local county attorney’s offices and the Attorney General’s office to commit to a “zero-tolerance policy” regarding violations occurring in the No Trespassing Zone. Simply put, a “zero-tolerance policy” means that these agencies will dedicate staff and resources to prosecuting crimes committed in the Zone when there is sufficient evidence to do so.
Posting no trespassing signs would, of course, require the consent of private landowners. Additionally, much of the border includes locations, such as federal and reservation land, where state law enforcement and prosecutors have no jurisdiction. Thus, in some areas, the No Trespassing Zone will have to extend inside the state to the nearest adjacent private or state property where entry is made.
It is time for Arizona to act. As Arizona’s Attorney General, I will aggressively use the power of the Office to develop creative legal strategies to solve the problems we face together. The “No Trespassing Zone” initiative will put the law on our side to ensure border security.
Andrew W. Gould was appointed as a Justice to the Arizona Supreme Court in 2017 after serving 5 years on Division One of the Arizona Court of Appeals. He retired from the Supreme Court in March 2021. Prior to his appointment to the Court of Appeals, Justice Gould spent 11 years as a Judge of the Superior Court in Yuma County, where he served as both Associate Presiding Judge and Presiding Judge.
Andrew received his J.D. from Northwestern University School of Law in 1990. He began his legal career in Phoenix, Arizona, practicing in the field of civil litigation. In 1994, he became a Deputy County Attorney, prosecuting major criminal cases for Yuma and Maricopa Counties. He served as Chief Civil Deputy for the Yuma County Attorney’s Office from 1999-2001. Justice Gould has previously served on the Arizona Supreme Court Commission on Technology, as the President of the Arizona Judges’ Association, and has taught at the Judicial Conference and New Judge Orientations.
