A compromise to keep 20 beds open at all times in a Phoenix homeless shelter could be used as a loophole that allows police to ticket people for camping on sidewalks, a legal advocate for homeless people warns.
The deal was made last week to help the Phoenix City Council pass a fiercely contested expansion of homeless shelter beds near downtown. Proposed by homeless service providers who said the beds would allow them to get more people of the streets, the expansion idea was opposed by some neighbors who worried it would draw more people to the area.
To placate neighbors' concerns, the council attached a number of stipulations to its approval of the zoning change that will allow 275 new beds at the the Human Services Campus, a 13-acre one-stop-shop for people experiencing homelessness. One of those stipulations is that 20 of the beds must be held open for police to use for homeless referrals.
While the idea is to guarantee a resource for police to offer to people they find living outdoors, Tristia Bauman, a senior attorney at the National Homelessness Law Center, said similar requirements have been used in other cities to evade one of the few protections that people living on streets have against being ticketed for sleeping on public property.
The protection comes courtesy of a federal court case known as Martin v. Boise, which the law center filed against the city of Boise, Idaho, in 2009. Under the ruling from the 9th U.S. Circuit Court of Appeals, which covers western states like Arizona, people cannot be criminally sanctioned just for living outside when there is nowhere for them to go. Since shelters in Phoenix and most western cities are perennially full, this has created a de facto right to public camping.
Now that Phoenix police have a dedicated pool of shelter beds available for them to refer people to, that may no longer be the case.
“When there are indoor alternatives, there is more leverage to force people out of public space,” Bauman said. said. She said holding shelter beds open for police is an old tactic that local jurisdictions have used to make sure their policing of people living outdoors doesn't fall on the wrong side of the law.
This isn't the first time such concerns have been raised in Phoenix. The idea of developing a tool to offer a live inventory of regional shelter capacity sparked unexpected furor last summer after activists and some service providers alleged it would allow police to get around Martin v. Boise.
However, spokespeople for police and the city attorney's office were adamant that nothing would change with the reserved beds.
"The purpose for reserving bed space at the Human Services Campus [is] for Phoenix PD is to assist officers when they encounter individuals experiencing homelessness. As officers encounter these individuals, they will have the ability to contact the HSC and connect these individuals with services," police spokesperson Sgt. Mercedes Fortune said in an email. "Officers will not operate any differently. They will continue to lead with services."
But what if someone declines those services? After Martin v. Boise became the law of the land, Tempe said it would no longer ticket people for urban camping, but Phoenix lagged behind, with officials eventually telling New Times last February that police would not arrest people for violating the city's urban camping ordinance, and the city would not prosecute such violations.
Not everyone got the memo. In June, a homeless woman was ticketed for camping in a midtown alleyway by Phoenix police. But city prosecutors dismissed the ticket at the time and spokesperson Nickolas Valenzuela confirmed that the office was not prosecuting tickets under the ordinance.
In an email exchange with New Times this week, Valenzuela and Fortune responded to repeated questions about urban camping tickets by saying that every situation was unique, and that the city would follow the law.
Fortune later said that the policy had evolved since last February, and the department is once again issuing urban camping tickets. She said it is only done in limited cases, such as if there is criminal activity occurring or officers spot drug paraphernalia.
Asked about Fortune's comments, Valenzuela denied that there had been a change in approach and once again repeated that the city would continue to offer services and follow the law.
"Homelessness is not a crime and we have no intention to criminalize it," he wrote in an email. "However, where the Phoenix Police Department finds it appropriate and necessary based on the subject activity to issue a citation, as permitted by Boise, the Phoenix City Prosecutor’s Office would evaluate the citation for factual and legal sufficiency for prosecution when appropriate."
Even if there are shelter beds available, it may still not be enough to meet the bar of Martin v. Boise, Bauman said. To qualify, beds have to be not only available but reasonably accessible. Bauman's organization is currently pursuing a case in San Diego, arguing that beds in congregate settings are not accessible to people with disabilities like post-traumatic stress disorder.
The Centers for Disease Control and Prevention's COVID-19 guidelines currently recommend allowing people who are living unsheltered or in encampments to remain where they are if no individual housing options are available. Nadeen Bender, the woman ticked for camping in an alleyway over the summer, told New Times at the time that she felt unsafe entering a congregate shelter during COVID-19.
While CASS has spread out beds, and the county secured some hotels for people during the pandemic, Bauman said that people who didn't want to go to a congregate setting during the pandemic may have an argument in court — albeit one that hasn't been tested yet.
It's likely the additional beds won't be available until this summer, said Human Services Campus Executive Director Amy Schwabenlender. Even then, it's probable that the shelter still remain at capacity.
“275 more beds is 275 more people,” Schwabenlender said, but their last count found 400 unsheltered people in the neighborhood. She sees her job as tracking the progress being made with the new beds so that there's a record that it exists, even if things seem the same from the outside.
As for the beds reserved for police, she believes the idea behind them is good and they could be helpful.
“The idea is to avoid criminalizing homelessness — to avoid having people being arrested by ensuring there’s a shelter option for them," she said. With that being said, “we can’t stipulate intent,” she said.
Elizabeth Venable, treasurer of the Fund for Empowerment advocacy group, said that she hadn't seen urban camping tickets lately, but instead, people she spoke with faced citations for trespassing on public property, sleeping at bus stops, and other small criminalizations of their status.
"My impression is they do not want to have an explicit violation of [Martin v. Boise] so they have moved on to other citations," she said.
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