The city rain conjures a foul river of garbage, used needles, drug paraphernalia, and fetid human waste. It flows lazily through filthy streets, by vacant shops, in front of restaurants, and between the huddled shanties of a forgotten population, before finally expiring into the Rio Salado River Parkway—a source of drinking water for thousands of citizens. Following the course of putrid runoff will likely expose you to any number of human horrors. Those who live in the area are desensitized to the sight of fist fights, stabbings, sexual assault, and even murder. On several occasions, police officers have been summoned because residents have discovered the burning corpse of a man or a woman and, on at least one occasion, a baby.
This is not a description of war-ravaged Mariupol or a politically destabilized region of the Middle East. These descriptions come directly from the “findings” section of a recently published ruling from the Superior Court of Arizona in Brown v. City of Phoenix. This is the reality in an area now infamously known as “the Zone”—a government-manufactured homeless encampment in downtown Phoenix.
The Zone is the product of intentional policy decisions that are becoming distressingly common in cities across the United States. Faced with rising homelessness, government officials select for sacrifice an unfortunate few blocks and proceed to compress the entire homeless population within that condemned location. The court in Brown observes that Phoenix officials have plainly and intentionally created “the Zone” by offering homeless individuals “courtesy rides” from other areas of the city, concentrating citywide homelessness resources to the area, and locally suspending the rule of law. As the court’s findings make clear, these policy decisions have allowed the area to devolve into a haven for drugs, violent crime, and public health hazards which neither the property owners nor the homeless population are equipped to navigate on their own. Crime has spiked, endangering the lives of the already vulnerable population who inhabits the Zone, and businesses watch helplessly as their customers are no longer willing to enter the area.
After finding local officials entirely unresponsive to the quickly deteriorating conditions since the Zone’s creation in 2019, local residents joined together in Brown to seek refuge in the Arizona state courts. They argue that the City of Phoenix has intentionally created a public nuisance in their backyard—a statutory tort in Arizona with longstanding roots in common law doctrine. They seek an injunction against the city policies that have turned their backyards into a living nightmare and destroyed the businesses that represent their life’s work. Residents in other states have attempted similar theories with little success. However, Arizona is unique because state legislators have codified the nuisance tort and arguably clarified that state actions can create a nuisance that is remediable by court intervention.
According to the City of Phoenix, the policy change and resulting conditions are a direct result of the Ninth Circuit’s 2019 ruling in Martin v. City of Boise. Martin narrowly held that criminalization of squatting on public property when homeless individuals cannot otherwise obtain shelter is a violation of the Eighth Amendment when the crime is an “unavoidable consequence of his or her status.” Yet the City of Phoenix cites the holding in Martin as carte blanche to govern the Zone with no regard to numerous state nuisance laws that Martin does not preempt. Furthermore, Martin is silent on criminal laws unrelated to camping and does not remotely suggest that homeless individuals are immunized from law enforcement in any capacity. “There are numerous ways cities can comply both with public nuisance laws and the Boise decision, whether by asking as many individuals to take beds as possible, enforcing other criminal laws, or creating organized structured campgrounds like other cities have done,” says Ilan Wurman, a professor at Arizona State University’s Sandra Day O’Connor College of Law and the lead attorney in the Brown case. “Nothing in Boise allows let alone compels the City to manage the problem in a way that creates a public nuisance.”
In a massive victory for local residents, the court recently agreed with the plaintiffs and rejected the city’s motion to dismiss, imposing an injunction against the city policies that resulted in the Zone’s creation. While the injunction is temporary pending the final disposition of the litigation, it strongly signals a plaintiff victory because likelihood of success is one of the key factors when courts consider temporary injunctions at this phase of litigation.
But the battle is far from over in Phoenix and dozens of other cities across the United States. Application of the nuisance theory in this context is still quite novel, and there is no telling how it will play out should the case proceed through the process of trial and appeals. While Zone residents have cause to celebrate the immediate relief provided by the court, victory with long lasting impacts here and elsewhere will require political intervention. In addition to providing immediate relief to Zone residents, Brown is already spurring political action that may produce more lasting and comprehensive solutions than injunctive relief could.
Solving the root causes of homelessness was and remains a political question, even if the city cannot legally address the problem by concentrating the homeless population in lawless encampments in a single neighborhood. One of the politically appealing features of confining a city’s homeless population to a small, sacrificial area like the Zone is that it can fool voters in other areas into believing that city officials are effectively combating rising homelessness. The stomach-turning findings section in Brown make such subterfuge much more difficult, and local politicians are already responding to the backlash.
During the course of the Brown litigation, the Arizona legislature drafted and advanced SB1024, a bill that would have prevented individuals from pitching tents in public right-of-ways. The bill was vetoed by recently elected Governor Katie Hobbs. But where this bill failed, others may succeed. Should similar bills continue to die on the Governor’s desk, citizens of Arizona may decide to register their dissatisfaction with homelessness policy at the ballot box.
The common law nuisance theory advanced by litigants in Brown has struck a tremendous blow for common sense in Arizona and is an effective step in pushing this issue back into the view of the general public and into the political process where it can be addressed. The chilling realities exposed by the court have clearly resonated with the voting public, and we can be hopeful that this will result in better policy.
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