City of Tucson argues it can't be sued over homeless camp

The city of Tucson is arguing that neighbors of the Navajo Wash have no legal right to sue it for allowing homeless people to camp in the area.

"The city is immune from liability for its policy determinations,'' Bernardo Velasco, an attorney for the city, told Pima County Superior Court Judge Greg Sakall in response to a lawsuit brought by three residents of the Hedrick Acres neighborhood.

Velasco said that under state law, Tucson can't be sued for deciding "fundamental governmental policy,'' which he said includes not only whether to provide resources but whether and how to spend them.

In this case, Velasco said, Tucson has adopted policies that determine when it will intervene in situations where there are homeless people camping on city property. Only when that activity reaches a certain level does the city intervene.

There will be implications if the judge grants the neighbors the relief they want, he also said.

"Plaintiffs ask the court to enjoin the city to implement their preferred policy: a zero-tolerance for camping in public spaces,'' versus decisions made by City Council members, Velasco wrote.

He warned it would lead to a spate of similar lawsuits, citing a comment made by Ilan Wurman, the lead attorney for the Navajo Wash neighbors in Hedrick Acres, when they filed suit in September.

"We're hoping to get a court judgment and a court precedent that others can use around Tucson,'' Wurman told the Arizona Daily Star then.

Velasco told Sakall he needs to be aware of that goal.

"By placing the city under such an injunction, plaintiffs would be entitled to preferential treatment to compel the city to clear the wash on their whim, or face the contempt of this court, with the long-term intent to enable all property owners across the city to commandeer city resources to drive people living in public space out of sight (even though they admit thee are not sufficient shelter beds) or out of the city altogether,'' Velasco wrote in court documents. 

"Leaving aside the inhumanity of such an approach — a question properly reserved for the city's administration — any individual plaintiff with a chip on their shoulder could take over policy decisions throughout the cities, towns, and unincorporated areas of Pima County," he said. 

No date has been set for a hearing, though there is a closed-door settlement conference between the parties set for Jan. 11.

Neighbors: City created nuisance

The city has a three-tiered policy.

In Tier 1 are former encampments that have no individuals living there, where the city cleans up the sites.

Sites designated Tier 2 are those Tucson calls "self-governing encampments,'' where residents are "able to govern themselves and keep the area free from disruptive activities.'' There, outreach services are offered and there is a schedule for trash pickup.

"High problem encampments'' are in Tier 3, areas with violence and crime towards both the surrounding community and the camp residents. That area is cleared out after residents are given 72-hour notice to vacate.

And while Velasco acknowledged the Hedrick Acres/Navajo Wash site had been designated Tier 3 at least twice, there was no such designation in place when the lawsuit was filed on Sept. 20.

He suggested the lawsuit was filed that day because that is the same day Wurman, in a separate case representing businesses in the Phoenix area, got a judge to order Phoenix to clean up an area known as "The Zone'' as a public nuisance — the same argument being used in the Tucson lawsuit.

Wurman, however, said the issue is simpler than that.

In his response to the city's request that Sakall throw out the request for an injunction, he said Tucson, in setting up the tier system, has admitted it is creating a nuisance.

He said state law prohibiting the maintenance of a nuisance applies to all landowners. And in this case, Wurman said, the city owns the park.

"It admits that it allows on its land, with its knowledge, the erection of public camps so long as they are not too obnoxious from its perspective, even if those encampments otherwise constitute nuisances,'' the neighbors' attorney told the judge. 

"As far as plaintiffs can tell, the city has no argument for why it cannot permanently ban camping in Navajo Wash notwithstanding the history nuisances there, except for a misguided ideology that unsheltered individuals have a right to camp in public, even if there are sufficient shelter beds available for them,'' Wurman wrote.

"But that ideological preference cannot trump the laws of the state of Arizona, which declare conditions such as those in Navajo Wash to be a nuisance," he said.

Velasco, however, said there are several problems with that conclusion.

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He said the law defines "nuisance'' as "an unreasonable interference with a right common to the general public.''

But not all interferences with public rights are public nuisances that allow someone to sue for damages, Velasco said.

"The law does not concern itself with trifles, or seek to remedy all of the petty annoyances and disturbances of everyday life in a civilized community or even from conduct committed with knowledge that annoyance and inconvenience will result,'' he said.

No injury caused, city says

Velasco also said that for the city to be liable, those filing suit must show that it "engaged in conduct that set in motion forces that resulted in an injury.''

So, for example, a city can be held liable for operating a sewage treatment plant that frequently broke down and spilled waste, causing noxious odors to spread to nearby property which, in turn, made them physically ill, caused them to loose sleep and destroyed the value of their property, he said.

Ditto, he said, of a soup kitchen whose daily meals resulted in people frequently trespassing onto residents' yards and engaging in behaviors such as urinating, defecating, drinking and littering on their property.

Here, however, Velasco said the city did nothing to attract people to gather in or near Navajo Wash.

He also said there is a significant difference between what is happening here and the case that Wurman won against Phoenix.

In the Phoenix case, Velasco said, police brought people to the area so they could receive services. Not so here, he said.

Tucson "has not designated Navajo Wash as a place for encampments, does not bring people there, and does not inform them that they will receive lenient or preferential treatment in the Wash,'' Velasco told the judge. "To the contrary, the city regularly deters residents from camping in Navajo Wash, cleans up refuse in and around the Wash, and evicts individuals from Navajo Wash as needed.''

"People are not nuisances"

The lawsuit could get more complicated. Community Care Tucson and Community on Wheels, both of which provide services for the homeless, want Sakall to let them intervene in the case.

"Critically absent from the lawsuit ... is anyone speaking for the vulnerable unsheltered people at the core of this dispute,'' wrote attorney Paul Gattone.

He told Sakall their interests need to be represented because any decision he reaches would have "grave constitutional implications'' for them.

"Without adequate alternative shelter, houseless persons have a constitutional right to be free from criminalization for unavoidable human activity, like sleeping and sheltering from the elements,'' Gattone wrote.

He also said they have a property interest in their belongings, "even those left temporarily unattended in public spaces.''

Gattone said there's an even more basic concept the judge needs to consider.

"People are not nuisances,'' he wrote. "Full stop.''

Neighbors chopped down trees

There's a side issue facing Sakall.

Velasco said the three plaintiffs, through the Hedrick Acres Neighborhood Association or some other manner, have participated in or paid for the recent unauthorized destruction of 75 trees in Navajo Wash. That, he said, is "gross misconduct'' which weighs against the judge ruling in their favor.

Wurman does not dispute the tree cutting. But he called it "totally irrelevant'' to the lawsuit.

Even if it were relevant, Wurman said, the association's volunteers have cleaned and landscaped the wash for years in coordination with Tucson Clean and Beautiful. And Wurman said the action is consistent with a "master plan'' that says the area cannot host a high volume of vegetation because that could hinder or divert water flow.

"And, of course, the overgrowth was leading to severe fires as a result of the encampments, and the association had every right to take acts consistent with the master plan to mitigate that risk, and the risk of public camping," he wrote.