Judges shouldn't be deciding homeless policy

Phoenix is caught in the crossfire between federal and state judges. Which may be where the city wants to be.

I was cheering while reading Superior Court Judge Scott Blaney’s blistering takedown of the City of Phoenix’s mismanagement of the homeless encampment known as The Zone. And I agree with his conclusion that conditions there constitute a public nuisance that the city has a legal obligation, under state law, to abate. 

However, satisfaction over the resolute action of a state judge is lessened by the general belief that the knotty issue of how to respond to urban homelessness isn’t best, or appropriately, resolved in the courts. After all, The Zone is, in substantial part, a creature of a federal judicial decision by the 9th Circuit, Martin v. City of Boise. This decision was an exercise in judicial vanity and impracticality. 

The heart of the decision found that enforcing an anti-camping ordinance against the homeless violated the Eighth Amendment’s ban on cruel and unusual punishment, unless there were adequate shelter spaces as an alternative. This flunks an originalist test. The country has had anti-vagrancy laws of various sorts throughout our history. Some past laws would be considered unduly harsh today. But government has always had the right, and obligation, to take action to preserve and protect order and safety in public spaces, and for the enjoyment of private property. There’s never been anything unusual about it. And the consequences of  today’s laws are generally limited to the minimum required to clear and secure public spaces and protect the enjoyment of adjacent private property. Enforcement is rarely gratuitously punitive.  

Even outside an originalist framework, the Martin decision is clear constitutional nonsense. According to the decision, municipal governments cannot execute their responsibility to preserve and protect order and safety in public spaces unless they have also acted fully as a provider of last resort for housing. There is nothing in the federal Constitution that remotely compels, or justifies, such a condition to use a municipality’s police powers. 

The Martin decision has been widely regarded as enunciating a straightforward test: if the number of homeless exceeds the number of available shelter spaces, a city cannot prevent the homeless from sleeping in public spaces. That’s a standard, however constitutionally suspect, that could, as a practical matter, be implemented, if with predictable knock-on effects that lead to The Zone. 

However, that’s not what Martin really held. A footnote in the case indicates that the question of whether an anti-camping ordinance can be enforced has to be decided on an individual basis, rough sleeper by rough sleeper.

The footnote is worth quoting at length:        

Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible…. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. 

So, according to the 9th Circuit, if a rough sleeper has relatives or friends willing to take him in, or enough cash to pay for a hotel room, an anti-camping ordinance can be enforced against him, irrespective of whether there is, overall, a surplus of homeless to shelter beds. And how is a street cop coming across a rough sleeper in violation of a local ordinance supposed to divine whether the person has relatives or friends willing to take him in, or enough cash to pay for a hotel room? The learned jurists didn’t bother to explicate. 

Judge Blaney relied strongly on this footnote to find that Phoenix could and must clean up The Zone. But Martin with the footnote establishes an impractical policy regarding enforcement of the city’s anti-camping ordinance. The city is caught in the crossfire between federal and state judges. And that may be where the city wants to be.

The ACLU has filed a federal lawsuit seeking to curtail what enforcement and cleanup activity Phoenix has been conducting in The Zone. In December, a federal district court judge allowed the city to conduct a planned cleanup but enjoined any enforcement of anti-camping ordinances. So, a state judge has ordered the city to clear out The Zone and a federal judge has enjoined the city from doing so.

Reportedly, Phoenix and the ACLU have reached a settlement in the federal lawsuit. The city may use that settlement, which undoubtedly won’t involve clearing out The Zone, to escape compliance with Blaney’s order to abate the public nuisance conditions there, arguing that settlement of a federal constitutional claim trumps enforcement of a state public nuisance law. 

The adjacent property owners who brought the state lawsuit want the city to establish a homeless encampment elsewhere and enforce the anti-camping ordinance and other criminal laws in The Zone. Blaney’s decision supports that remedy. 

The city doesn’t seem keen on it. Mayor Kate Gallego has expressed a preference for additional indoor shelter spaces. The two, of course, aren’t mutually exclusive.

This is a particularly knotty issue because so many of the homeless are mentally ill or substance addicted. Even if available, convincing them to get help is difficult and the standard for compelling them is high. Lowering that standard is a knotty issue in its own right. Even if shelter spaces are available, many prefer living independently on the streets.

Policy should be compassionate and respectful regarding the homeless. But not to the extent of failing to preserve and protect order and safety in public spaces and the enjoyment of private property. 

That’s a difficult balance to strike. And one unlikely to be found through the clash of dueling lawyers in courtrooms.

Reach Robb at robtrobb@gmail.com.