The Supreme Court decision that could help us take back our cities

Surging violence. Streets littered with human waste. Law and order giving way to death and destruction. The nationwide homelessness crisis has made this disturbing scene all too familiar, particularly in once-beautiful Western cities – all while progressive leaders sit back and watch. 

But one Arizona judge has had enough. In a ruling with major national ramifications, Maricopa County Judge Scott Blaney issued an order last week commanding city officials to clean up one of the nation’s largest homeless encampments: the vast swath of downtown Phoenix that locals call "The Zone." 

And now, the U.S. Supreme Court has a chance to address the underlying cause of the crisis that has struck not just in Arizona but nationwide. 

A large homeless encampment in Phoenix, on Aug. 5, 2020. (AP Photo/Ross D. Franklin, File)

Phoenix’s Zone is a scene of violence and filth – rife with gang warfare, arson, public intoxication and homicide. For well over a year now, hundreds of people – sometimes over 1,000 – have been camping out in tents in The Zone, turning the streets into violent sewers.

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And it didn’t just happen. The Zone was created by city bureaucrats, who chose not to enforce laws against public camping and loitering. Their excuse has been that a pair of decisions by the Ninth Circuit Court of Appeals ties their hands – and the hands of city leaders throughout the Western states under the Ninth Circuit’s jurisdiction – when it comes to the homelessness problem.

Those rulings – one called Martin v. Boise and the other Johnson v. Grants Pass – say that the Constitution’s "cruel and unusual punishment" clause forbids the government from arresting people for sleeping on the streets if they do so "involuntarily." 

That might seem plausible at first, except the decisions define "involuntary" to mean that any time there aren’t enough beds available in city-run homeless shelters, anyone sleeping on the streets is doing so "involuntarily."

That’s nonsense. A person acts "involuntarily" if he can’t help it – not if the government fails to give him a handout. By the Ninth Circuit’s logic, someone who drives home drunk from a bar did so "involuntarily" because the government didn’t hire him a cab. 

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To be fair, both of those rulings said cities can still enforce laws against camping on the streets. "Even where shelter is unavailable," the Martin decision declared, "an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible."

Nevertheless, bureaucrats nationwide have found the "involuntariness" rationale so confusing that some can’t figure out how to address their local homelessness problems—and others have seen the rulings as a handy way to evade responsibility. As Judge Blaney put it, "city officials that wish to do nothing while such encampments grow and fester" have viewed the Martin and Grants Pass cases as "convenient excuse[s]."

The good news is that the U.S. Supreme Court will soon consider whether to review those Ninth Circuit decisions – and a coalition of business owners, police, city officials and taxpayer advocates have joined forces to urge the justices to do so. 

The business and property owners who sued Phoenix for illegally operating The Zone submitted a brief arguing that Martin and Grants Pass "have caused widespread confusion and uncertainty," which has "led to a dramatic increase in both sheltered and unsheltered homelessness" – and the California Police and Sheriffs’ Associations agreed; they’ve filed a brief pointing out that those rulings "are infinitely more confounding from the perspective of the officer on the street." 

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Even Phoenix’s own lawyers have filed a brief urging the Supreme Court to set clear rules about what cities can do about homeless encampments.

What’s more, Judge Blaney himself has begged the Supreme Court to intervene. "The Martin and Grants Pass decisions created an unworkable mandate based upon questionable legal analysis," he wrote in his ruling. "To the extent that a state trial court judge could have any influence on the United States Supreme Court… this judge would respectfully urge the U.S. Supreme Court to review [these decisions]." 

There’s no doubt that homelessness is a complex problem, and that people suffering from economic, psychological or physical challenges need compassion. But there’s nothing compassionate about leaving them on the streets – particularly through a record-breaking Phoenix summer. 

And there’s nothing compassionate about destroying the property and livelihoods of hardworking taxpayers through a combination of federal courts’ illogic and local governments’ dereliction of duty. 

The compassionate – and the lawful – thing to do would be to overrule the Ninth Circuit and require local officials to protect the innocent and help the needy.

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Timothy Sandefur is the vice president for legal affairs at the Goldwater Institute, which filed a brief urging the Supreme Court to review and overturn the Grants Pass decision.