A judge ruled that Phoenix must clean up ‘The Zone’ — a biohazard where crime is rampant and laws are enforced arbitrarily.
The gunshots rang out just before midnight in mid April — pop, pop, pop, pop.
Joel Coplin and his wife, Jo-Ann, were sleeping in their home above their downtown Phoenix art gallery when they were awakened by the loud blasts in front of their building. But they did not rush to the window to see what was happening. They didn’t call the police.
“It’s gotten to the point where you just roll over and put the pillow over your head,” Coplin said of living on the edge of “the Zone,” one of the nation’s largest homeless encampments.
More than 1,000 people now call this site of drugged-out bacchanalia their home. In the Zone, addicts freely shoot up heroin and smoke meth and fentanyl, littering the grounds with needles and foil packets. They wander the streets like ghosts, lost in their delusions, and trade pills for sex, often in plain sight. They relieve themselves where they please, filling storm drains with human waste, rotten food, and garbage that flushes into the Rio Salado River Parkway.
They beat one another, rob one another. Sometimes they kill one another — at least four people were killed in the Zone last year, according to news reports. There have been multiple burned bodies in the encampment, including the burned body of a newborn found dead in the street.
Police rarely enforce the law. Instead, they provide vagrants around Phoenix with “courtesy rides” into the Zone, allegedly to get services at a Human Services Campus on the grounds.
It’s become so bad over the last several years — the gunshots, the misery, the death — that Coplin and his wife, both painters, shuttered their gallery. They can’t risk bringing groups of people to the neighborhood for shows, even if they wanted to come.
Coplin and his wife are among the plaintiffs who sued the city last year, seeking to force Phoenix leaders to clear the Zone. In late March, Arizona Superior Court Judge Scott Blaney released a preliminary ruling in their favor; the city has until July 10, the next court date, to clean up the mess that it helped to create and to perpetuate.
But lawyers who spoke to National Review said Blaney’s ruling could have implications outside of Phoenix and far beyond Arizona’s borders. The reasoning in his 23-page ruling, they said, could serve as a legal pathway for addressing the massive homeless encampments sprouting in parks and on sidewalks in big cities across the country, particularly on the West Coast.
The ruling, they said, is significant for two reasons: One, it makes the case that the city can legally take action to enforce anti-camping laws, despite a 2018 ruling out of the Ninth Circuit Court of Appeals that put limits on enforcing camping bans on the homeless. And two, it makes clear that the city must take action to “abate the nuisance” it has allowed to grow.
In his ruling, Blaney declared that the city of Phoenix is illegally “maintaining a public nuisance in the Zone” — a biohazard where crime is rampant and laws are enforced arbitrarily.
He also took aim at one of the city’s prime excuses for not clearing the camp — Martin v. City of Boise, a Ninth Circuit ruling that concluded that prosecuting people for sleeping or camping on public property when they have no home or shelter to go to is a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
In his ruling, Blaney wrote the city “erroneously applied the Martin case,” and misinterpreted Martin’s “narrow holding as precluding the enforcement of public camping laws whenever the homeless population in Phoenix exceeded the number of available shelter beds.”
Neither Martin nor a follow-up case, Johnson v. City of Grants Pass, “precluded municipalities from enforcing prohibitions against fires, stoves, or structures that do not provide ‘the most rudimentary precautions against the elements,’” he wrote. “Nor do the cases preclude municipalities from abating a nuisance, arresting violent offenders, enforcing the laws against drugs and violence, or enforcing laws against biohazards and pollution of public waters, etc.”
“But the most glaring misinterpretation of the Martin and Grants Pass opinions is the inference that anyone who has erected a tent or other structure in the public right of way is intrinsically unable to otherwise obtain shelter,” Blaney wrote.
It is likely that some residents of the Zone are there by choice, and have at least some ability to shelter themselves. “Plaintiffs are not required to establish that each person in the Zone is service resistant or voluntarily homeless before the City must act,” the judge wrote.
Pushing Back on Martin v. City of Boise
Timothy Sandefur, vice president of legal affairs for the conservative Goldwater Institute, said West Coast city leaders regularly use Martin as an excuse for not clearing out homeless camps.
In 2019, a Los Angeles Times article pointed at Martin as a primary reason “why L.A. can’t legally clear its streets of homeless encampments.” Other cities without enough shelter space have directed their police officers not to enforce camping bans. In December, Magistrate Judge Donna Ryu cited Martin to justify a ruling prohibiting the city of San Francisco from sweeping homeless camps, according to the San Francisco Examiner.
“This case really offers a road map for how to begin fixing this problem,” Sandefur said of Blaney’s ruling. “This decision is by no means a panacea, even in Arizona, let alone elsewhere. But it is the first step toward fixing the problem because it pushes back on that misinterpretation of [Martin].”
John DiLorenzo, a Portland, Ore., lawyer who sued the city last year for allowing homeless camps to take over sidewalks needed by disabled residents, said Blaney’s argument might apply in his community as well. In mid April, the Oregonian newspaper reported that a “perfect storm” of “petty crime, open drug use and general lawlessness” has taken hold in a 30-block section of downtown. While city leaders have taken efforts recently to ban homeless camping outside city-sanctioned sites, DiLorenzo said Multnomah County is focused on a “housing-first” strategy that doesn’t prioritize building temporary shelters or structured campgrounds.
“I think this decision is useful in two ways,” DiLorenzo said of Blaney’s ruling. “I think it points out something I think the city attorneys in Portland already know, that Martin v. City of Boise is not as expansive as the advocates suggest. And secondly, it shows a successful use of common-law and statutory public-nuisance claims against the government authority.”
Sandefur said no court order will “fix the homeless problem.” But, he said, “by declaring the city is operating a public nuisance and has a legal obligation to resolve that problem, you at least open the door to basically forcing city officials to comply with their responsibilities.”
A ‘Significant’ Ruling
Ilan Wurman, a constitutional law professor at Arizona State University who is representing the plaintiffs in Phoenix, told National Review that many of the people living in the Zone are “service resistant” — they won’t go into a shelter where they must give up drugs or alcohol, or can’t bring their pets or piles of belongings. He acknowledged that Phoenix does not have enough shelter beds for everyone living in the Zone, but that’s not the point.
“[Martin v. City of Boise] doesn’t say if there are only 200 beds but there are 1,000 people, you don’t enforce it at all,” he said of city camping bans. The Martin ruling, he said, “allows the city to go and say, ‘Okay, will you take a bed?,’ until the 200 are filled. And quite frankly, you have to ask five people for one bed to get filled, and those four people who are service-resistant and don’t want the bed, well now you can actually enforce camping bans on them, you can arrest them, you can relocate them, because there was a bed available for them, and therefore they are not involuntarily homeless.”
Cities have latched onto an expansive view of the Martin ruling promoted by far-left homeless “advocates,” who threaten lawsuits against cities that dare to clear encampments. If the cities were to lose in court, they could be liable for damages and attorneys’ fees, Wurman said.
“A risk-averse city, it makes perfect sense for them to just bend and buckle to the progressive advocates here,” he said. Wurman, too, said Blaney’s ruling is “significant.”
“These cities have basically acquiesced to the advocates who claim that the Ninth Circuit decision precludes basically doing anything to the unsheltered population,” Wurman said. “And what we’ve shown is, that’s not the case, that there are numerous laws that the cities can enforce and can comply with, while also being in compliance with the Ninth Circuit decision.”
Lack of Political Will to Shelter the Homeless
Andrea Suarez founded the nonprofit We Heart Seattle to clean and reclaim the city’s parks. She said homeless encampments proliferated after the Martin ruling and during the Covid-19 pandemic and the racial-justice protests of 2020. An advocate for shelter-first strategies, Suarez said she believes that some far-left housing-first advocates and city-council members lean on an expansive reading of Martin in part to keep the homeless on the streets and visible.
“Just keep people alive, just keep them there until we can get them a house, give them more tarps and blankets and peanut butter and jelly sandwiches,” she said. “Because, if we keep moving people around, move them out of sight, move them back under the underpass, the argument . . . is, me, as a voter, won’t ever vote for permanent, supportive housing because I can’t see the problem.”
“I am loathed by my city council and our activists because I pick up the trash,” said Suarez, who credited newly elected moderate Democrat mayor Bruce Harrell with making progress on cleaning up encampments and restoring the city’s parks and public spaces.
Mary Theroux, chairwoman of the Oakland-based Independent Institute, which has sought policy changes to address the homeless crisis, said there is chaos on the streets of the Bay Area. Last week, Governor Gavin Newsom called in the California Highway Patrol and the National Guard to help break up open-air drug markets in San Francisco. Homeless residents have been filing hundreds of questionable $10,000 claims with the city of San Francisco for expensive property they claim was in their tents during announced sweeps of their camps.
Theroux said San Francisco leaders don’t have the “political will” to shut down the drug markets and homeless encampments on their own. “If they did, then they would create shelters and say, ‘Okay, we have shelter available. You can’t sleep in the street,’” she said.
Theroux believes the massive shift of resources away from emergency shelters is the biggest reason for the explosion of people camping on the streets. Some cities, she said, have used the Martin ruling to justify building or acquiring more shelter space. “If a city wants to end street homelessness, they can use Martin to help them do so,” Theroux said.
San Francisco leaders have floated a proposal to spend $1.5 billion over three years to shelter all of the city’s homeless. Theroux is skeptical. She noted that San Francisco leaders – including Newsom, the former mayor – have been making similar pronouncements for decades.
“It’s not going to happen,” she said. “Look at what they’ve been saying for the last 40 years, and you will join me in my skepticism.”
‘Just Like the Nuthouse’
In his ruling, Blaney strongly hinted at his preferred solution for clearing out the Zone — structured campgrounds with bathrooms and hygiene facilities built on vacant city lots.
“Structured campgrounds on vacant City lots would be an effective solution to the issues in the Zone,” he wrote, adding that city-sanctioned campgrounds “would eliminate any legal prohibition on the enforcement of anti-public camping laws.”
The city has acknowledged it could work. But, Blaney wrote, “City leaders are not considering the creation of controlled, outdoor camping spaces on vacant City property because they would prefer to provide air conditioning and heat to homeless shelters.”
“But the Court notes that the privately-owned tents and makeshift shelters that individuals have illegally constructed in the Zone also do not have air conditioning or heat and are largely in disrepair, providing little in the way of shelter to those residing in them,” he added.
Other western cities, including Denver and Santa Rosa, Calif., have already built city-sanctioned campsites to address their homeless crises. During the Covid-19 pandemic, Maricopa County maintained a structured campsite near the Zone in Phoenix.
Wurman said the city has been opposed to reestablishing structured campgrounds in Phoenix because they won’t solve the homeless problem. But, he said, “this is not about solving homelessness. This is about solving the humanitarian crisis, disaster, that is the Zone.”
Coplin said he’s become desensitized to the scenes of depravity outside his home. He used to paint pictures of the misery in the Zone but stopped. It’s no longer shocking.
“You get used to stepping over people passed out on the sidewalk,” he said. “You get used to people doing goofy things. You get used to the gunshots. And all of a sudden it becomes normal. And when it becomes normal, then that’s a sign that something’s very wrong.”
He said he was happy with Blaney’s ruling. “Sure, big cheers,” he said, but added, “What’s going to happen? How’s it going to work? What are they going to do?” He’s heard few details.
Wurman said the city intends to comply with the ruling, though city lawyers may appeal it over the summer — they don’t like the precedent it sets. In the meantime, the ruling is binding.
But in the month since the ruling, Coplin said he’s seen no changes.
“It’s still dangerous as hell. And summer is coming, and it’s going to be even more dangerous,” he said. “People are getting shot. People are overdosing, they’re dehydrating.”
“You wouldn’t believe what we see,” he added. “It’s just like the nuthouse.”