May 26, 2023

In Brief: A Legal Strategy for Tackling Homelessness

The Ninth Circuit’s Boise ruling doesn’t invalidate state laws against public nuisances.

Ilan Wurman, an associate professor of law at the Sandra Day O'Connor College of Law at Arizona State University, explains how he worked to force Phoenix officials to address the city’s growing homelessness problem. He observes that there are practical legal avenues to effectively address the problem, which too often city officials ignore. And why do they ignore them?

The problem, we were told, was the Ninth Circuit Court of Appeals’ 2018 decision in Martin v. City of Boise, which held that it was unconstitutional under the Eighth Amendment to criminalize sleeping in public when a city has an insufficient number of shelter beds available. Since that decision, homeless encampments have proliferated in western U.S. cities, where the Ninth Circuit’s ruling governs.

In Phoenix, the business, property, and homeowners we represent in our lawsuit testified that after the Boise decision, they witnessed buses arriving downtown filled with tents, which homeless advocates then passed out to the more than 1,000 individuals living on the streets in what is now called “the Zone.” Our plaintiffs would call the police, but they were told that the Boise decision tied the city’s hands.

However, those officials were wrong. Wurman explains that the Boise decision did not invalidate the city’s behavior laws for public property.

Our legal theory was simple: the Ninth Circuit decision did not preempt or invalidate the numerous state laws against public nuisances. In Arizona, state law defines “[a]ny place, condition or building that is controlled or operated by any governmental agency and that is not maintained in a sanitary condition” as a “public nuisance … dangerous to the public health.” Likewise, “[a]ny condition or place in populous areas that constitutes a breeding place for flies, rodents, mosquitoes,” “[a]ll sewage, human excreta, wastewater, garbage” that have the potential to transmit disease, and any “obstruction to the free use of property” are defined as public nuisances. Not once did the city question the existence of a public nuisance on public property in the Zone. In most jurisdictions, municipalities are required by law to abate these problems, especially when they occur on public property.

While focusing his case on holding city officials accountable by enforcing the laws on the books didn’t solve the homelessness problem, it significantly diminished it.

Our lawsuit was never about solving homelessness. It was about solving the humanitarian crisis that these encampments create. And solving that crisis would provide at least some temporary relief for the unsheltered population.

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