Home>Legal>Ninth Circuit Takes Teeth out of Arizona City Anti-Homeless Ordinance

Ninth Circuit Takes Teeth out of Arizona City Anti-Homeless Ordinance

McMahon: Panhandlers comprise a ‘vulnerable, protected class’

By Steve Kirwan, September 16, 2023 5:49 pm

Fountain Hills Councilmember Peggy McMahon is quoted as saying panhandlers are a ‘vulnerable, protected class.’ (Photo: fountainhillsaz.go)

Maricopa County, Arizona’s largest in area and population, conducts an annual survey of the homeless. Although the percentage of those deemed “unsheltered” dipped slightly (2%), the overall number grew over 7% since last year’s tally. That number has nearly doubled since 2017.

The growth of the homeless population is a serious concern with potentially dire consequences. A 2016 report by the Association of Schools and Programs of Public Health shows a high correlation between unsheltered homeless and crime, one that disproportionately impacts suburban neighborhoods. Some cities have taken action to reduce that impact by outlawing “urban camping.”

In Fountain Valley, Arizona, the affluent suburb of Scottsdale, the city council did just that, along with passing a separate ruling prohibiting “standing or stopping in the roadway, medians, or areas adjacent to roadways where the speed limit is 35 mph or greater,” with exemptions for emergency and maintenance workers. The measures passed 5-2 and 4-3, respectively.

According to a story posted on azcentral.com, Councilmember Peggy McMahon took offense to the bills in light of previous attempts to reduce panhandling.

She stated, “I think this is indirectly targeting panhandlers,” McMahon said in the August meeting. “I think we have to be very, very careful about that because they are a vulnerable, protected class.”

McMahon’s quote about panhandlers being a “protected class” warrants further exploration. According to WestLaw, the term  “protected class” refers to “A group of people with a common characteristic who are legally protected from employment discrimination on the basis of that characteristic.” Those include race, gender, age, disability, and sexual orientation. These groups are protected by both federal and in some cases state laws, but they apply specifically to workplace discrimination.

The Arizona Globe reached out to Councilmember McMahon to ask what ‘protected class’ panhandlers belong to. This story will be updated with her comment if she chooses to respond.

McMahon’s argument may have received unexpected backing from the Ninth Circuit Court of Appeals. In the 2018 appeals case, Martin vs. City of Boise, 920 F. 3d 584, the court determined that cities could not enforce local laws against outdoor camping if they didn’t offer enough shelter beds for people living on the street. The ruling appears to shear the teeth from the city’s new rule.

In the meantime, the city, like others around the valley, is scrambling for solutions. According to Mayor Ginny Dickey, they’re looking to partner with an organization to provide shelter space. Only then will the ordinance be enforceable.

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