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Constables have 'responsibility' to forcibly evict tenants from mobile homes, Pima County Attorney says

Opinion upends long-standing statewide policy, risks 'escalating' evictions of residents who won't leave homes they own, constable warns

The Pima County Attorney's Office told constables last week they have a legal "responsibility" to forcibly remove tenants from mobile homes they own when evicted from rented lots, upending a long-standing policy recognized across the state.

Last week, Pima County Constable George Camacho, of Justice Precinct 9 on Tucson's South Side, asked for guidance from the County Attorney's Office about whether constables could forcibly enter an owned mobile home and remove residents when serving an eviction notice for a rented lot.

In an email, Camacho was told by Deputy County Attorney Sean Holguin that a writ of restitution issued by a court "does authorize a constable to enter by force if necessary to remove tenants who do not voluntarily leave." Holguin wrote that after discussing the issue with fellow Deputy County Attorney Dan Jurkowitz, "we also believe this authority exists with mobile homes owned by tenant as well as residential structures owned by the landlord (sic)."

The opinion runs against the county's long-standing policy that people cannot be forcibly physically removed from homes they own, even if they sit on rented property from which they've been evicted. The change also contradicts training that constables receive from the state-level Arizona Constables Association, and could "escalate" situations in which an owner of a mobile home is being evicted from a rented lot in a park.

The Pima County Attorney's Office defended Holguin's opinion, writing that the office "must advise based on what Arizona law may allow." 

There are nine constables in the county, who are limited law enforcement officials elected from each justice precinct to serve orders of protection, evictions and other court documents from the justices of the peace.

The change comes as Pima County strives to mitigate evictions throughout the county through legal aid programs.

Holguin not only serves as a deputy county attorney, but also as a legal advisor to the Pima County Sheriff's Department, and wrote in his email that he was recently assigned to advise and assist the constables. In his email to Camacho, Holguin wrote that "the purpose of the writ is to return possession of the premises to the landlord and the language in the writ directs the constable to do so."

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"Consequently, we believe it is the constable’s responsibility to make all reasonable efforts to remove the tenant(s) when serving the writ," Holguin wrote. He added that if "an element of danger is expected, the constable may request assistance from police."

"Once the constable has removed a tenant, if the tenant returns without permission it can be treated as a criminal trespass and directed to police for appropriate action," he wrote.

"I understand this opinion is contrary to longstanding practice and training that the constables have received," Holguin wrote, adding that he wanted to schedule a meeting with all of the constables to discuss the opinion.

Constable Michael Stevenson, who represents JP 10 and serves as the presiding constable, thanked Camacho for researching the issue in an email. "This will help with the more difficult situations at the mobile home parks," Stevenson wrote.

However, JP8 Constable Kristen Randall said that the former policy was "successful for decades" in protecting the property rights for both lot owners and residents, and called the new policy "a risk with very few benefits." JP 8 covers much of midtown Tucson, running from County Club Road east to Wilmot Road, and from River Road south to Golf Links Road.

"A policy that Arizona constables would generally not make forcible entry into a privately owned home was successful for decades in respecting the private property rights of both the lot owner and the owner of the residence," she said, adding that the previous policy allowed constables to de-escalate the eviction process, making it "safer for all parties."

"A policy change such as this hurts our community and jeopardizes the safety of all involved," Randall said. "Escalating a civil matter such as this is a risky fix for a policy that is not broken. I fear that a constable escalating a situation that does not even guarantee the evicted residents will remain off property as the constable drives away, is a risk with very few benefits."

On Monday, Randall announced that she was resigning from the constable's office, telling the Pima County Board of Supervisors that her last day will be Feb. 13.

Randall said the County Attorney's Office was right in offering the opinion, writing by text that "their advice should reflect what the state may allow, but that community context matters."

But "just because we 'may' do something, it is not our responsibility that we 'must' do it," she said. 

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The training manual for constables, issued by the Arizona Constables Association, specifically tells them not to make a forcible entry into an owned residence on a lot subject to eviction. "Do not make forcible entry into the mobile home," the document simply states.

Later, the manual tells constables that if a landlord pushes for the home to remain in place, the constable may enter the home and remove all the occupants and leave the home in its place. However, "constables should not enter forcibly and should remove the occupants peacefully."

Randall told the Sentinel that calling the police for backup in such a situation isn't always possible, and that the Tucson Police Department declines to take part in such evictions.

Owners have incentives to evict, re-sell

Complicating some situations are mobile homes in such disrepair that they cannot be moved. If they remain on a lot from which a resident has been evicted, those homes can be treated as abandoned property — taken over by the lot owner, and rented or re-sold to new tenants who must pay rent on the lot, as well as paying for a dilapidated mobile home.

That can create a cycle of evictions and abandoned sales, with mobile home park owners — profiting from each transaction — essentially given incentives to evict people, housing advocates have said.

In a statement, PCAO officials defended the shift in advice to constables.

"In order to protect attorney-client privilege, the Pima County Attorney’s Office cannot comment on policies in which an agency may have sought our advice," wrote Joe Watson, a PCAO spokesman. "Generally speaking, PCAO must advise based on what Arizona law may allow. However, we always take the extra step to train and consult on what is actually safe, healthy and advisable."

Arizona law states that after termination of a lease, a landlord "may have a claim for possession of the mobile home space and for rent and a separate claim for actual damages for breach of the rental agreement." Additionally, when a law enforcement officer, including a constable or sheriff's deputy, is given a writ of restitution by the court, a landlord may "provide written instructions" telling them not to remove the mobile home from its space. In this event, the official may execute the court's order by "removing all occupants and their possessions from the mobile home and from the space it occupies."

But, state law does not state that a constable "shall" carry out an eviction by removing a tenant from their owned residence. In legal terms, only a provision indicating someone "shall" do something is a requirement.

Constable faces possible criminal probe

Camacho, the constable who requested the opinion from PCAO, faces two complaints about his conduct — one of them potentially a criminal investigation.

A complaint was filed with the state's Constables Ethics Standards and Training Board following allegations that Camacho — who was prohibited from carrying a firearm in 2020 after he was accused of harassing a woman who worked in the Constables Office on multiple occasions — threatened former constable Joe Ferguson late last year at a South Tucson bar.

Ferguson, a former reporter for the Arizona Daily Star and a now member of TucsonSentinel.com's Board of Directors and spokesman for the Pima County Assessor's Office, was appointed as a constable in January 2020 and lost to Camacho during the Democratic primary later that year.

A separate complaint, alleging that Camacho has posted "simulated eviction notices" on the home of people who had actually been ordered evicted by a judge, was sent to Maricopa County for review, to avoid potential conflicts of interest in Pima County, said Mark Napier, the assistant county administrator and former Pima County sheriff, in a memo to the Board of Supervisors on Jan. 20.

"This matter is potentially criminal," Napier wrote.

Plans to blunt eviction wave

For much of the COVID-19 pandemic, evictions were placed on hold by a federal moratorium put into place by the CDC in March 2020. The CDC argued that evictions could be "detrimental to public health control measures" designed to slow the spread of SARS-CoV-2, the virus that causes COVID-19.

However, CDC Director Dr. Rochelle Walensky issued an order that ended the moratorium on Oct. 3, 2021. As the moratorium headed toward its eventual end, Pima County announced the creation of Emergency Eviction Legal Services as part of a larger effort to mitigate or prevent evictions in the county, backed in part by federal funding under the American Rescue Plan Act, passed by Congress in March.

As part of the $1.86 trillion bill, the federal government allocated $21.6 billion for emergency rental assistance. Of that, an estimated $787 million went to Arizona to cover housing expenses, and about $102 million went directly to Pima County, with another $102 million expected.

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By August, Pima County and the Tucson city officials have managed over 16,000 prevention requests and earmarked nearly $21.5 million in funding to cover rental payments and utilities.

In December, the Board of Supervisors agreed to spend $425,000 on the program, approving a one-year contract with four private law firms to try to keep people in their homes by seeking rent assistance, negotiating with landlords, and offering legal advice.

In 2021, there were 6,608 eviction filings in Pima County's courts, slightly down from a year earlier, when the courts reviewed 6,569 cases. In 67 percent of cases, the court enter a judgement for plaintiffs. In another 1,589 cases, the court dismissed the filing, and in just 2 cases, the court found in favor of defendants.

The court also issued 1,981 writs of restitution, and of those, nearly 63 percent were executed by constables, according to figures from Pima County.

Evictions Lab, based at Princeton University, found that since the pandemic began in March 2020, landlords have filed over 720,000 evictions in just six states, and 31 states, including around 9,200 just this week. Evictions Lab also noted that Tucson is among the top 25 cities by eviction rate, hitting around 6 percent. In comparison, the worst city in the U.S. is North Charleston, South Carolina, which hit 16.5 percent.

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2 comments on this story

2
77 comments
Feb 4, 2022, 10:00 am
- +

Maybe it’s time for a new Pima County Attorney.

1
197 comments
Feb 2, 2022, 8:07 pm
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Horrible.

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Paul Ingram/TucsonSentinel.com

An eviction notice left on an apartment window.

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