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Pima County Attorney pivots on eviction advice to constables

Walks back recommendation about forcible entry when mobile home owners delay vacating rented lots

Constables serving court orders on the owners of mobile homes should not forcibly enter to carry out an eviction, Pima County Attorney Laura Conover said, walking back advice about a shift in longstanding procedures provided last month.

"Most certainly we do not, in any way, recommend a radical change to decades of training and protocol, and certainly not during a pandemic, especially regarding forcible entry," Conover wrote in a memo.

Constables — elected officials who serve orders from justice courts, including evictions and orders of protection — should "refrain from any thinking or communicating any false sense of policy change" before they attend a training session suggested by the County Attorney's Office, she said in the statement, which was addressed to all of the constables. Conover cautioned about "avoiding extreme personal and county liability," in her memo.

The statement — in which Conover said "we have been apprised of a possible misunderstanding that occurred regarding our legal advice" — comes a week after Tucson Sentinel broke the story about the shift in legal advice about evictions. The memo also follows a meeting between two of the constables and Conover and her staff last week about the shift in legal advice regarding how such evictions are handled.

One of the constables who publicly came out against the changes, Kristen Randall, said Tuesday that she is "pleased with the fast response from PCAO to clear up what the Constables Office has interpreted as a dramatic and dangerous need to change a policy that would not have served the community in any way."

Legal opinion justified 'forcible entry' into owned mobile homes

The County Attorney's Office told the constables late last month that 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.

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

In a Jan. 28 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)."

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That 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 initially defended Holguin's opinion when questioned about it by the Tucson Sentinel, writing that the office "must advise based on what Arizona law may allow." 

As the Sentinel reported last Wednesday, 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."

"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 JP10 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.

'Risky fix for a policy that is not broken'

One of the constables, Randall in Justice Precinct 8, pushed back, saying the change in handling evictions from rented lots could potentially be dangerous for both tenants and the constables.

The former policy was "successful for decades" in protecting the property rights for both lot owners and residents, she said, calling 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, and has seen some of the largest numbers of evictions in the past two years.

"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 told the Sentinel last week, adding that the previous policy allowed constables to de-escalate the eviction process, making it "safer for all parties."

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"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."

Last 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 changed opinion, saying 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.

Constables trained to not force entry into owned mobile homes

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 last week that calling the police for backup in such a situation, as suggested by the email from PCAO, 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 last week, 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," Joe Watson, a PCAO spokesman, told the Sentinel last week. "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.

Conover disavows setting 'policy' for constables

In her memo Tuesday, County Attorney Conover reminded the constables of the "critical" fact that "we don't create, edit, control or set Constable policy in any way."

"Rather, we provide each of you legal advice," Conover wrote. "Our legal advice is just that – advice. Our advice does not constitute policy."

"If an extreme set of circumstances is presented to us, we will do our utmost to provide you with sound legal advice," she wrote. "Such advice is to be applied to the set of circumstances presented us, as you see fit, but should only apply IN THAT PARTICULAR CASE and ONLY THAT CASE that was the subject of the requested advice."

"Most certainly we do not, in any way, recommend a radical change to decades of training and protocol, and certainly not during a pandemic, especially regarding forcible entry," Conover told the constables. "Thus, we will be engaging with you immediately on a county-wide training that is critical to your work going forward. With an eye toward avoiding extreme personal and county liability, again we urge you to refrain from any thinking or communicating any false sense of policy change before you can attend this forthcoming training."

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Randall welcomed Conover's memo.

"Constable (Esther) Gonzalez and I met with County Attorney Laura Conover and her staff last week, and we discussed how clearer client management and more thoughtful dialogue between parties will yield better results for all seeking legal counsel," she told the Sentinel on Tuesday.

"I’m grateful that Ms. Conover instantly understood the importance of this issue and quickly identified the breakdown in communication so that tenants who own their homes would maintain some property rights after the Constables Office abruptly changed their policy," she said. "Moving forward, I believe both offices will be more mindful of how they disseminate advice and how it is applied."

TucsonSentinel.com’s Paul Ingram contributed to this report.

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Pima County Attorney Laura Conover