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Lawsuit against Tucson homeless ordinance dropped, but could resurface

Posted 9/4/23

PHOENIX — Three organizations advocating for rights for the homeless have quietly dropped their lawsuit to prevent “sweeps” of encampments by the city of Tucson.

The move last …

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Lawsuit against Tucson homeless ordinance dropped, but could resurface


PHOENIX — Three organizations advocating for rights for the homeless have quietly dropped their lawsuit to prevent “sweeps” of encampments by the city of Tucson.

The move last week came after U.S. District Court Judge Scott Rash said nothing has been done in the lawsuit against the city since February. In fact, the judge said, the city had never responded to the claim that its actions were illegal and the challengers did not push for court action.

Paul Gattone, the attorney who filed the suit, declined comment. Instead, he referred calls to Will Knight, an attorney who has been collaborating with those who sued.

Knight, the decriminalization director at the National Homeless Law Center, said he still believes the ordinances being challenged are illegal. And he told Capitol Media Services he thinks the issue will come to a legal head, if not through this litigation — this case was dismissed without prejudice, meaning it can be refiled — then through a challenge to similar restrictions in Phoenix currently working its way through federal court.

The lawsuit, filed in January, was a bid to keep Tucson from sweeping homeless encampments ahead of the Gem, Mineral & Fossil Showcase.

According to the claim, the city planned to “hide the region’s unhoused population from public view by trespassing them from public parks in the coming weeks” ahead of the event. And the groups — Community on Wheels, Community Care Tucson and the People’s Defense Initiative — said they had learned from undisclosed sources the focus would be on the downtown Santa Rita Park.

The gem show came and went without court action.
But that still leaves the question of the constitutionality of two underlying ordinances.

One makes it illegal to camp, lodge or sleep in a park between 10:30 p.m. and 6 a.m. without “special written permission,” which has to be obtained 72 hours in advance from the parks director.

The other prohibits entering or remaining in any park or leaving any items in the park if it is posted as “closed to the public” or “no trespassing.” It also makes it illegal to “use or abet the use of any park or facility in violation of posted notices” without permission of the city’s parks director.

What’s wrong with all that, the lawsuit states, is it essentially makes being homeless a crime. And that, it says, violates the Eighth Amendment against unusual punishment.
More to the point is the question of whether making it a misdemeanor to camp in parks effectively makes criminals out of the homeless as there is no other place to go.

At best, the lawsuit states, there are 859 emergency shelter beds in the Tucson area. But even that number, it says, is overstated, with the former Radisson Hotel converted into a 350-bed Gospel Rescue Mission requiring lengthy screening and enrollment and two former motels have waiting lists.

“Whether deemed to be ‘emergency’ or not, these 859 beds are almost always occupied,” the complaint says. And that is where the challengers say the problem lies.

“These two ordinance contain no exceptions or qualifications for houseless individuals who, on a given day or night, cannot practically obtain indoor shelter or lawfully rest on an alternative parcel of land,” the complaint says.

The city, while not responding in court to the lawsuit, has cited its “homeless encampment protocol & reporting tool” to explain its actions.

That is supposed to kick in when a homeless camp, whether or public or private property, “poses a threat to public safety, causes a major criminal or health concern, or when there is camping in any city park after hours.” It is supposed to help identify camping locations and response, “including outreach, clean-up and enforcement.”

Knight said, though, none of that addresses the legal issues with the underlying ordinances.

There have been federal court rulings that have struck down similar laws in other communities. Those ordinances have allowed people to be charged with crimes for sleeping in a public place if there’s a lack of shelter beds.

But the law may not be all black and white. And communities have sought ways around it.

One recent case involves the city of Grants Pass, Oregon. Its ordinance is modeled after an Oregon law that says local government can enact time, place and manner restrictions for sleeping on public property as long as they are “objectively reasonable.” So, in that case, the city said people generally can sleep in parks — but only at night.

That raises the issue of whether it is “reasonable” to force people to pack up and move each day — a variant on the Tucson ordinance that has hours during which sleeping and camping is illegal.

The last word on that whole question is now before the U.S. Supreme Court, with the justices being asked by attorneys for Grants Pass to rules that enforcement of generally applicable laws about camping on public property does not constitute the “cruel and unusual punishment’’ prohibited by the Eighth Amendment.

The justices have not said whether they will take the case.
In the meantime, Knight said, there is a case closer to home that may help resolve the situation in Tucson.

He cited a lawsuit filed in federal court late last year by the American Civil Liberties Union for the Fund for Empowerment against the city of Phoenix seeking an immediate stop to what it calls “unconstitutional raids the city subjects unhoused community members to.”

Much of that is focused on “The Zone,” an area near the Capitol that had become the city’s largest homeless encampment. But clearance has begun after a state court judge, ruling in a lawsuit brought by nearby businesses and property owners, said the area had become a “public nuisance” and ordered the city to remove tents and other makeshift structures from the sidewalks and public rights of way.

Knight said, though, there are parallels with the case that had been filed against Tucson over its ordinances.

“They are being challenged for the same reason of illegality,” he said. “The Phoenix statutes are unconstitutional for the same reason the Tucson statutes are unconstitutional.”
Knight said there have been negotiations to resolve that Phoenix case. And he said that could end with a stipulation against Phoenix enforcing its ordinances about where homeless people can sleep.

“That would make it much, much easier for the lawyers in Tucson to win their case,” he said. And Knight said while an agreement in another case before another federal judge would not be legally binding, it would be “really persuasive” in what is and is not legal in Arizona.
But possible settlement of that Phoenix case is complicated by the fact that it’s not just that city which is defending its actions.

The residents and business owners who earlier got the state court judge to declare the area a public nuisance have intervened in the case and are asking that the ACLU lawsuit be dismissed.

According to their attorney, the two individuals named as plaintiffs in the lawsuit have no standing to challenge the ordinance or the city’s actions because they are not “involuntarily homeless,’’ something he said is a prerequisite for being able to file a claim under the earlier federal court precedents. And Steve Tully said neither has been convicted under any relevant ordinance.

Arizona lawmakers have tried to wade into the issue on a statewide basis.

Citing the problems in Tucson, Sen. Justine Wadsack, R-Tucson, pushed through legislation earlier this year to require local governments, on hearing of any homeless encampment, to notify everyone on the site they have 24 hours to leave and take their property with them. If someone refused, the city or county could take possession of the items and dispose of them if they weren’t claimed within 14 days.

Another provision said anyone camping on private property is guilty of trespassing and could be prosecuted.
The measure was vetoed by Gov. Katie Hobbs who said the proposal fails to understand there are multiple reasons people become unsheltered and remain that way.

“This legislation addresses none of those root causes, offers no pathways to assistance, and effectively criminalizes homelessness,” the Democratic governor wrote in vetoing the bill.

A different measure sponsored by Sen. John Kavanagh, R-Fountain Hills, met the same fate.

He sought to make it illegal to erect or maintain any sort of housing enclosure on any public street, highway, alley, land, parkway, sidewalk or other right of way. And that was defined to include a tent, tarp, box or similar object.

“Rather than solving these issues in a meaningful way, this bill only makes them less visible,” Hobbs wrote in vetoing the measure.