Homeless at Veinte de Agosto Park

Pedestrians pass Jon McLane’s wooden “dream pod” shelter on North Church Avenue in downtown Tucson.

With the downtown homeless camp rapidly expanding, both in numbers and territory, the city has filed an appeal seeking to overturn a court order officials say blocks them from doing anything about it.

On Friday, Tucson City Attorney Mike Rankin filed an appeal in the 9th U.S. Circuit Court of Appeals in San Francisco asking the court to review the December injunction in U.S. District Court in Tucson that blocked the city from interfering with camp resident’s free speech protest rights.

The city argues that U.S. District Judge David C. Bury erred in determining the protest could continue at all hours as long as five feet of the sidewalk along Church Avenue in front of Veinte de Agosto Park were left clear for pedestrian traffic.

As of Thursday, the encampment, which homeless occupants have dubbed “Safe Park,” had grown to more than 40 occupied crates, tents and other quasi-structures lining segments of Congress, Broadway and Church Avenue, in addition to those simply piling up belongings and sleeping bags on the sidewalks.

“Under the District Court’s reasoning, just as the City cannot enforce (Tucson City codes) in the face of the sit/lie exception, the City would also be precluded from enforcing its sidewalk parking ordinances against a car parked on the sidewalk, as long as the magic five feet are left open and unimpeded and the car is somehow associated with expressive conduct,” Rankin wrote.

Rankin said the activities of the homeless people in the park and on the sidewalks do not appear to fit the accepted interpretation of protected speech under the First Amendment.

“Tucson respectfully requests that this Court carefully parse the question of whether property used to support a 24-hour occupation is used for expressive purposes, and answer the question whether sleeping or sitting as part of a 24-hour encampment is expressive activity,” Rankin wrote.

Rankin also wrote the judge’s decision was made in error because city code does not permit anyone, even if exercising First Amendment rights, to “block the sidewalks at all hours of the day or night with objects — boxes, crates, hay, grain, any merchandise, bedrolls, blankets, backpacks, ice chests, bicycles, couches, storage lockers, tents, shopping carts, covered wagons, and piles and piles of blankets.”

Since the December ruling the crates, which occupants call “dream pods,” and other housing units have moved beyond the area Bury designated in his ruling.

Jon McLane, one of the homeless activists behind the movement and lawsuit, said he anticipates the 9th Circuit to reject the city’s arguments.

“They tried to bring in another Tucson City Code that they didn’t bring in the original case,” McLane said. “I’m really pleased now because this is what I’ve been wanting to happen for three years.”

He predicted the appeals judges would likely instruct the city to file future motions arguing Bury’s ruling back in district court.

City officials said they are preparing those filings.

The proliferation of people living in semi-permanent structures along sidewalks has begun to wear on some city and county leaders.

“I’m not in favor of what’s happening in the park,” City Councilwoman Regina Romero said. “The people who call themselves the organizers of this have a separate agenda.”

Romero said she supports the right to free speech but said those rights can’t outweigh other peoples’ rights in the community.

“Even though they are practicing their First Amendment rights, they are also infringing on others’ rights,” she said.

Pima County Supervisor Sharon Bronson said the city has been “derelict” with its lack of response.

She said the dream pods should be considered structures and not be permitted on sidewalks, where they encroach into public spaces. City officials should approach the pods, tents and other semipermanent residences as a violation of zoning code, she said.

Bronson, who also sits on the board of Visit Tucson, said the situation downtown has caused concern among tourism officials.

She said Visit Tucson board members were distressed “because of the negative impact it has had on the Gem and Mineral Show.”

In addition to the blocking of sidewalks, other concerns county and city officials have include unvaccinated dogs accompanying homeless residents, and increasing incidents of people urinating and defecating on sidewalks, streets and other public spaces.

The county began power-washing and sanitizing areas where human excrement was found on county property earlier this month. It also mapped the areas where the waste was found.

Romero said the city gives nearly $1.5 million each year to local nonprofits that provide services for the homeless.

“The programs are there,” Romero said, noting that people have to choose to use the services and stop abusing drugs and alcohol when living in shelters.

McLane said shelters in the region meet only a small percentage of the need; he estimates 10 to 15 percent.

He asserted most homeless-camp occupants would rather have jobs and a place to stay, but “most of these programs don’t give people jobs or go the extra mile.”

The goal, McLane said, has been to end what he considers criminalizing homelessness and to get more services for the homeless.

Contact reporter Patrick McNamara at 573-4241 or pmcnamara@tucson.com. On Twitter @pm929.