Phoenix mulls new homeless camping ban near schools, day care, despite legal perils

A group of Phoenix City Council members is considering a new partial ban on homeless encampments, a move likely to reignite moral and legal controversy about how the city navigates the homeless crisis if it advances.

Phoenix has been here before. Its ban on camping at city-owned properties, still on the books but rarely enforced, landed Phoenix in court.

Still, Councilmembers Ann O'Brien, Jim Waring and Kevin Robinson discussed enacting a limited camping ban modeled after a San Diego ordinance at Phoenix's public safety subcommittee meeting Wednesday.

San Diego City Council passed a ban in June that prevents homeless encampments in sensitive areas regardless of shelter availability.

O'Brien, chair of the subcommittee, said she was working behind the scenes to pass a similar measure in Phoenix for areas near schools, day cares and, potentially, city parks.

The councilwoman and Waring have frequently complained that parents in their north Phoenix districts feel unsafe taking kids to the park for fear of encampments or drug paraphernalia.

The potential ordinance, however, would likely come with legal complications and enforcement challenges.

O'Brien believes an amended federal court opinion paves the way for a legally permissible limited camping ban.

But Deputy City Manager Gina Montes effectively told councilmembers to tread lightly, reminding them Phoenix already has an anti-camping ban and that federal court requirements prevent the city from enforcing it unless there are available shelter beds or alternative space.

The city enforces it "on some occasions," Montes said, but they are "very careful about it," to not violate its federal court order.

The requirements stem from the Ninth Circuit Court of Appeals 2018 case, Martin v. City of Boise. The court decided anti-camping bans were unconstitutional if cities enforced them without having adequate shelter space for the cited individuals.

Office of Homeless Solutions Deputy Director Scott Hall said in the first five months after San Diego passed its ordinance, none of the 19 citations could be prosecuted. The problem? The individuals cited said there was no other shelter available and were let go, Hall said.

The U.S. Department of Justice's investigation into the Phoenix Police Department also stands to complicate the potential anti-camping rule. Among other inquiries, the DOJ is investigating whether officers who interact with people experiencing homelessness routinely violate their civil rights and improperly seize or dispose of their belongings.

The ban on encampments in new locations stands to put officers in positions to interact more with unsheltered individuals, potentially increasing cases for conflict.

Another court case: Arizona groups want Supreme Court to hear homelessness case

Montes told the subcommittee that staff would follow council's direction but warned, "It is critical that we have places for (people experiencing homelessness) to go. ... We want to make sure we don't inadvertently do something that gets our ability to address encampments restricted even further."

Derrik Rochwalik, chief of staff to O'Brien, said the subcommittee is expecting staff to bring back new ordinance language in March.

An amended federal court decision may pave the way

Rochwalik said he thinks an amended decision from the Ninth Circuit Court in Johnson v. City of Grants Pass could pave the way for the new, limited camping ban in Phoenix.

The amendment upheld the argument that enforcing anti-camping rules without another place for unsheltered individuals to go is unconstitutional. But it also changed a formula used to determine whether a city could enforce its anti-camping rule.

The initial decision's formula was based specifically on shelter beds. If there were more homeless people than beds, then the city couldn't enforce its anti-camping ordinance.

The amended opinion replaced that formula with broader language, saying it was unconstitutional for cities to enforce anti-camping rules if there "are no other public areas or appropriate shelters where those individuals can sleep.”

The inclusion of "other public areas" is key, Rochwalik said. The new ban, which would amend the city's existing anti-camping ban rather than create a new one, would only prevent camping in some city areas, not all, he said.

Broadening where unsheltered individuals can go to include "other public areas" is also what Phoenix attorneys argued for in their own appeal of a court order imposed on them by U.S. District Court Judge G. Murray Snow.

Snow ordered Phoenix to cease encampment cleanups unless there was shelter availability, after the American Civil Liberties Union of Arizona sued the city in November 2022. The ACLU claimed officers were violating unsheltered individuals' civil rights and improperly taking their belongings.

Snow's decision was based on precedent from the Grants Pass decision, so when it was amended, Phoenix successfully lobbied to have its own court order likewise broadened.

Rochwalik said O'Brien's understanding of how Grants Pass creates a pathway for a limited camping ban was based on discussions with city attorney Julie Kriegh. Kreigh declined to comment.

The ACLU, however, could take issue with the new ban depending on what "other public areas" the city makes available.

In federal filings, the ACLU has said if the U.S. District Court were to consider allowing Phoenix to enforce any camping bans, the court should "prohibit" enforcement until the city can offer an unsheltered person "immediate access to outdoor space that is reasonably suited to their individualized needs."

Accounting for individualized needs may in some cases require indoor shelter, the ACLU argued.

The ACLU also pointed out how the Grants Pass amendment "specifically proclaimed it is 'not decid(ing) whether alternate outdoors pace would be sufficient under (the Martin v. City of Boise case)."

In other words, the Grants Pass amendment allows cities to enforce anti-camping rules if there's other shelter or space, but the amendment does not clarify what "other space" is considered adequate, the ACLU argued.

What's needed for an anti-camping ban to pass

For O'Brien's anti-camping effort to succeed, the ordinance would need to pass by a majority vote from the four-member subcommittee to the full nine-member council for a vote.

Waring already said he was on board for the measure. Robinson said he was open, although he wanted to review the suggested language. Councilwoman Betty Guardado, also on the subcommittee, was absent for Wednesday's meeting.

Reporter Taylor Seely covers Phoenix for The Arizona Republic / azcentral.com. Reach her at tseely@arizonarepublic.com or by phone at 480-476-6116.

This article originally appeared on Arizona Republic: Phoenix mulls new homeless camping ban near schools, day care