By Mary Saxon.
Arizona has one of the worst homelessness crises in the country. Despite this, Senator John Kavanagh of Fountain Hills recently introduced a pair of bills, Senate Bill 1022 and Senate Bill 1024, which criminalize homelessness. Senate Bill 1022, makes it a class one misdemeanor to sell goods, solicit donations, or beg on traffic islands or medians. Senate Bill 1024 makes it a class one misdemeanor to sit, lay, or sleep on a public roadway except in circumstances where one is experiencing a medical emergency, administering medical assistance, or is subject to a permit to conduct a festival, fair, parade, or similar event. In Arizona, a class 1 misdemeanor is punishable with up to six months in jail and carries a fine of up to $2,500 as determined by the court.
These bills are a misguided attempt to address Arizona’s growing homelessness crisis and would likely be struck down as unconstitutional under current case law.
Arizona’s Homelessness Crisis
Arizona has one of the highest homelessness rates in the country with an estimated 13,000 people experiencing homelessness. U.S. Department of Housing and Urban Development data indicates that, while the national number of individuals experiencing homelessness has plateaued since the pandemic, Arizona’s homelessness crisis has gotten worse.
Nationally, the rate of homelessness increased by less than 1% since 2020, but in Arizona, the rate has increased by 23%. Additionally, 59% of the 13,000 individuals experiencing homelessness report being unsheltered meaning they are living on the street, abandoned buildings, or another place not meant for sleeping. This number is up 33% since 2020. Unsheltered individuals are those who will be most impacted by SB 1022 and SB 1024.
In addition to increasing rates of homelessness, Arizona lacks an adequate number of shelter beds. In 2021, the Maricopa Association of Governments estimated that there was a need for 770 new temporary shelter beds to reduce homelessness by 25% before 2022. Maricopa County, the largest county in the state, only has 1,800 shelter beds. In fact, at any one time, it is estimated that there are 1,000 individuals waiting for a bed outside the Central Arizona Shelter Service shelter on 12th Avenue in Phoenix. This is just one shelter and fails to factor in the lack of shelter beds in other areas across the state.
Constitutionality of Urban Camping Laws
The very type of laws that Senator Kavanagh proposes has been found to be unconstitutional by the United States Court of Appeals for the Ninth Circuit. The Court in Martin v. City of Boise found that laws banning sleeping or camping in public locations violate the Constitution in circumstances where there are no available shelter spaces. In Martin, six homeless residents of Boise were cited for violating two city ordinances. One made it a misdemeanor to use streets, sidewalks, parks, or public places for camping and the other banned occupying, lodging, or sleeping in any building, structure, or public place without the permission of the owner. The court found that the ordinances violated the Eighth Amendment which protects against cruel and unusual punishment because it criminalized homeless individuals when there weren’t alternative shelter spaces available. Like Boise, Arizona has a shortage of available shelter spaces making it likely that litigation would ensue if these bills were to become laws.
Prior to Martin, cities like Phoenix, Glendale, and Tempe had urban camping ordinances similar to those proposed by Senator Kavanagh and those ruled unconstitutional in Martin. However, following the Martin ruling, Tempe and Glendale have reassessed their ordinances while Phoenix has kept their law the same.
Phoenix City Code, like SB 1024, prohibits individuals from using a public street, highway, or similar right-of-ways for lying, sleeping, or sitting with certain limited exceptions. However, in December 2022, Chief U.S. District Judge Murray Snow issued a preliminary injunction that prevented the city from issuing tickets to individuals who are camping or sleeping in public right-of-ways unless it can be proven that they are refusing available shelter space. This ruling may foreshadow the fates of SB 1022 and SB 1024 if they were to become law.
Both bills were scheduled to be heard in the Senate Military Affairs, Public Safety, and Border Security committee on January 18th but after lengthy testimony and acknowledgement that the bills had unintended consequences, the committee did not vote on the bills and they have been rescheduled for February 8th. One amendment to SB 1022 was offered by Senator David Gowan which would allow individuals to sell items in the median after concerns that this might unintentionally criminalize activities such as teenagers advertising a car wash. Additionally, a representative of the Arizona Trucking Association identified that SB 1024, as introduced, would criminalize truckers who sleep in vehicles at rest stops. It is clear that if these bills are to gain party support, they need to be more narrowly tailored.
Since it is just the beginning of the legislative session, it is difficult to assess whether these bills will become law. Their fate is especially complicated given the slim majority held by Republicans in the Legislature and Governor Hobbs’ advocacy for individuals experiencing homelessness. In November, Governor Hobbs released a plan to address the affordable housing crisis which included promoting local zoning law changes, providing legal aid to families at risk of eviction, and investing in the Housing Trust Fund to develop affordable housing. Additional bills like HB 2284, HB 2256, and SCR 1011 have also been proposed to attempt to resolve Arizona’s shelter bed and affordable housing shortage.
Instead of criminalizing individuals experiencing homelessness, lawmakers should be focused on addressing root causes and taking housing-first approaches which have been proven to be effective. If these bills were enacted, they would likely be struck down under Martin given the lack of shelter beds in Arizona and Chief Judge Snow’s ruling on the Phoenix ordinances. Regardless of the outcome, it is important to highlight the misguided approach to addressing the growing homelessness crisis in Arizona. These attempts to criminalize individuals experiencing homelessness are likely unconstitutional and will have unintended consequences.
By Mary Saxon
J.D. Candidate, 2024
Mary Saxon is a 2L Staff Writer for the Arizona State Law Journal. Raised in Arizona, Mary attended Arizona State University, where she earned a bachelor’s in Global Health and a master’s in the Science of Health Care Delivery. Prior to law school, she worked at ASU as a researcher studying veteran’s suicide, health disparities, and health policy. She became interested in homelessness when she worked as a student director of a student-run free clinic providing health care to those experiencing homelessness in Phoenix. She is interested in pursuing a career in health law after graduation.