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Tucson sued over 'sweeps' of homeless camps, destruction of personal property

Tucson sued over 'sweeps' of homeless camps, destruction of personal property

Groups file lawsuit to halt city's actions before traveler influx from Gem & Mineral Show

  • Protestors, including members of People's Defense Initiative, hold signs against gentrification and rising rent costs during a Tucson City Council meeting on July 12, 2022.
    Paul Ingram/TucsonSentinel.comProtestors, including members of People's Defense Initiative, hold signs against gentrification and rising rent costs during a Tucson City Council meeting on July 12, 2022.

A coalition of Tucson-based homeless advocacy groups asked a federal judge to block Tucson police and city officials from park "sweeps," when officers forcibly remove people sleeping in public parks or camps in dry washes, citing concerns about possible plans before the yearly Gem and Mineral Show.

City officials rejected that contention, saying the enforcement of camping ordinances isn't connected to an expected influx of visitors.

In a 19-page lawsuit filed in federal court last week, the Tucson Tenants Union, People’s Defense Initiative, Community on Wheels, and Community Care Tucson argued such sweeps violate the 8th Amendment because the city does not have shelter space for an estimated 3,000 people left homeless in Tucson each night.

On Monday, with temperatures in the city plummeting below freezing, Tucson's "Operation Deep Freeze" was activated and an emergency shelter will open at the Salvation Army Hospitality House to protect people.

Paul Gattone, the attorney for the group, asked a judge to halt Tucson police from citing people for sleeping in city parks and bar officers from destroying personal property. Gattone also urged the court to declare the city's anti-camping and after-hours ordinances unconstitutional when applied to "involuntarily houseless individuals" who are "engaged in the life-sustaining activities" of sleeping or resting on blankets at a Tucson public park on nights when the city's emergency shelters are full.

Gattone filed the lawsuit before Tucson's Gem and Mineral Show, which begins on Jan. 28 and continues through Feb. 18. Gattone argued that  city officials will attempt to "hide the region’s un-housed population from public view by trespassing them from public parks in the coming weeks."

"Anticipating one of Tucson’s marquee events —the Gem & Mineral Show — the city government is scheduled to hide its homelessness crisis by forcibly removing houseless individuals from the city’s largest downtown park," Gattone wrote in a statement. "According to the lawsuit, an otherwise law-abiding houseless person cannot be evicted from a park so long as the local homeless population exceeds the number of shelter beds."

The city has around 850 emergency shelter beds, however, Gattone argued Tucson's homeless population is close to 3,000 people, based on data from Pima County.

"We challenge the city of Tucson to find adequate housing for our unsheltered neighbors," Gattone said. "History will not look kindly upon the city if it continues to disappear the most vulnerable"  while creating "only symbolic numbers of new shelter beds." 

“This could be your child, sister, or mother. We are all on the brink of homelessness. What determines the outcome is accessible supportive systems. When those do not exist we have removed someone’s livelihood,” said Glenda Avalos, a housing justice advocate. "We should bestow the same care, love, and dignity that we seek for ourselves."

City attorney: Allegation 'demonstrably false'

Tucson City Attorney Mike Rankin said late Monday he would not comment on matters in litigation, however, he added statement made previously on allegations city enforcement actions might be based on "consideration of tourist events like the Gem and Mineral Show."

"This allegation is untrue," Rankin wrote. "It is, in fact, demonstrably false. City enforcement actions are based on established protocols that prioritize enforcement based on the threat to public safety. These protocols include extensive efforts to provide services to the unsheltered persons who might be affected, in advance of enforcement."

Rankin also referred to protocols the city maintains, including a way for people to report a homeless camp. After a complaint is leveled, city officials evaluate the situation assigning three tiers to the camp, including whether people are living there and are able to "govern themselves and keep the area free from disruptive activities."

At that level, the city will offer outreach, and negotiate a trash pickup.

However, at tier three, when a camp is considered a "high problem encampment," the city will order people to leave within 72 hours because of "violence and crime towards the surrounding community, the encampment inhabitants themselves, and many environmental hazards." Personal effects and camp gear may be removed after the 72 hour notice, and Tucson Police officers "take appropriate enforcement actions" against people who haven't left the site, according to the city's protocol. And, the camp will be completely cleared within 15 days "to prevent campers from returning.

The rising homeless rate has become a major issue in Tucson and Pima County. 

During her "State of the City" speech in December, Mayor Regina Romero touted the Tucson's response, highlighting the city's efforts to distribute $53 million in federal rental assistance to 9,800 households in Tucson and South Tucson, as well as a $10 million effort to convert vacant hotels into "transitional and low barrier" shelters "to provide support services for those experiencing homelessness."

Romero also said the city is taking "concrete action" to support nearly 31,000 older adult households who are "cost-burdened" and pay more than 30 percent of their income on rent. Meanwhile, the increase in the number of unhoused people on Tucson's streets has become a core issue independent candidates for mayor — Zach Yentzer and Ed Ackerley — have highlighted as part of their campaigns against Romero.

Yentzer argued the city's plans were not scalable, and said Romero's pursuit of "housing first" policies was flawed. Instead, Yentzer said he would pursue a "shelter-first, treatment first, housing-earned" model that has worked in a few cities. Meanwhile, Ackerley promised establish what he calls "homeless transition centers" in abandoned buildings, as well as "quick strike teams" to relocate and clear homeless camps.

On Monday, Tucson officials stopped accepting applications for public housing and vouchers after the city re-opened the program on Jan. 3, after a five-year hiatus. The city has about 5,200 housing vouchers, and manages around 1,500 housing units.

Attorney: 'No end in sight'

In the lawsuit, Gattone linked evictions to increased homelessness in the city, telling the court that as federal programs sunset, more people will be left on the street.

Gattone wrote that in the years leading up to the COVID-19, the Tucson area was already experiencing unprecedented rent increases. In 2016, Princeton University's Eviction Lab, which tracked eviction court records in the U.S. called Tucson was a 'Top 25 evicting city," Gattone wrote. "Today, this pre-pandemic trend continues in more dramatic fashion," he wrote. "By some calculations, average Tucson rents have increased 30 percent since early 2020."

"Rent increases lead to evictions," Gattone wrote. He said last year, around 12,000 evictions were filed in court, exceeding the record set in 2006. "There is no end in sight. The record-breaking 2022 eviction figures occurred as federal rental assistance was being doled out to thousands of low-income Tucson renters," he said. "Put differently, Tucsonans were evicted at record levels even though a carefully-tailored government program existed for the express purpose of reducing evictions."

Federal programs will sunset this month, and 2023 eviction numbers will outstrip 2022 figures, Gattone said. He also told the court while eviction have increased, the overall number of shelter beds in the county has "only increased incrementally." In 2020, a count of homeless people in Pima County—known as a Point-in-Time count—estimated there were around 1,324 people unhoused in Pima County, and there were about 705 shelter beds. In 2022, a Point-in-Time count estimated there were 2,227 homeless people in Pima County, he said.

New data from Pima County's Homeless Management Information System show there are likely around 3,000 homeless people in the area, staying at emergency shelters, a transitional shelter, a private vehicle, outside in the elements, or "in a structure unfit for human habitation," Gattone wrote.

This does not include people who "couch surfed" or families who double up with another family, Gattone wrote. "Consequently, there is an unknown additional number of Pima County residents who are dangerously close to falling into the unsheltered category at a moment’s notice," he wrote. 

In recent months, there's been a larger push to deal with rising homeless rates in Arizona and nationwide. Earlier this month, U.S. Rep. Raúl Grijalva joined Sen. Elizabeth Warren and 47 other members of Congress to urge the Biden administration to "pursue all possible strategies to address rent inflation, end corporate price gouging in the real estate sector, and ensure that renters and people experiencing homelessness across this country are stably housed."  

"Rising rents coupled with a severe housing shortage are forcing people out on the street," Grijalva said in a statement. “I applaud the commitment of this administration to prevent evictions and to swiftly implement the Emergency Rental Assistance program as our country recovers from the consequences of the pandemic."

"The administration must expand its approach to address rent inflation and the rampant corporate price gouging that is forcing families out of their homes which is why we are calling for these additional federal actions. I’m ready to work with the Biden administration to use the tools of the federal government to stop address this crisis,” Grijalva said.

In December, the U.S. Department of Housing and Urban Development told Congress there were more than a half-million people experiencing homelessness in the U.S., and about 60 percent were staying in shelters, while the rest were living on the street, in abandoned buildings, or in places "not suitable for human habitation." And, among states that had the largest increase in homeless people from 2020 to 2022, Arizona was in the top five, just behind California, Louisiana, Tennessee, and Oregon. 

Further, Arizona had one of the worst rates of people who were homeless and lived unsheltered, according to HUD's report.

Gattone: City ordinances punish people's 'basic need for sleep'

While the city and county lacks shelter space even before an increase in evictions, Tucson maintains two misdemeanor statutes that "have the effect of punishing a houseless person’s basic need for sleep and rest," Gattone wrote.

The city's anti-camping ordinance prohibits people from camping or sleeping in city parks from 10:30 p.m. to 6 a.m. without special written permission, including sleeping in a tent or temporary shelter. The city also prohibits people from entering or remaining in a public park that's closed to the public, and Gattone told the court that all city parks close by 10:30 p.m. 

"Violations of both the anti-camping ordinance and the after-hours ordinance are misdemeanor offenses, punishable by up to six months in jail and a $1,000 fine," Gattone wrote. He noted that TPD officers will approach people sleeping in the early-morning hours, wake them, and issue a citation under the anti-camping ordinance. "Typically, the citation will be accompanied by a forced eviction from the park," he said.

Gattone argued the two ordinances violate the 8th Amendment. While officials may prosecute a person who "simply chooses to sleep in a public park in contravention of a clearly-stated ordinance," laws that "criminalize sleeping outside on public property implicate the protections of the 8th Amendment when applied to an individual who is involuntarily homeless and truly has no other choice."

"'To prosecute such a person would be to prosecute someone for whom “avoiding public places . . . is also impossible,'” Gattone wrote.

He also rejected the argument that because TPD officers often cite and release people for sleeping in public parks they're not violating the Constitution. "The cite and release procedure does not offer police officers an escape hatch from the 8th Amendment. It does not transform an otherwise unconstitutional form of punishment into a permissible one," he wrote. He told the court the citations require often include an arraignment, and if a person fails to appear a bench warrant is issued.

"Although the original police interaction may not have resulted in jail time, the issuance of a bench warrant increases the likelihood that the houseless individual will be physically arrested and transported to jail during a subsequent interaction with police," Gattone wrote. "In this way, even a seemingly innocuous ‘cite and release’ procedure results in a very real and tangible criminal punishment down the line."

Gattone also criticized the practice of treating personal items and camping equipment as abandoned, even if found unattended in a public park or dry wash where a "de facto camp" has been set up.

If city officials choose to remove non-hazardous personal belongings, they should account for those items in  "post-deprivation notice" and give people a chance to recover those items before they are discarded or destroyed, he wrote. "For Tucson’s houseless individuals rely on this personal property for survival. It is all they have," Gattone argued. "Compared with a houseless individual’s extremely high interest in their property, any administrative burden on the city to provide additional process is low."

The case was assigned to U.S. District Judge Scott H. Rash. The court has yet to schedule a hearing.

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