The U.S. Court of Appeal for the Ninth Circuit will again consider the issue of public access to public land that it dealt with in the 2018 case of Martin v. Boise when Sedona resident Sabrina Tali Beram’s lawsuit against the city of Sedona comes before it next year.
Beram moved to Sedona in April 2020 and rented an apartment at 1623 Kestrel Circle in West Sedona. Nevertheless, according to her court filings, Beram “must sleep in her car because of her disability [obsessive-compulsive disorder] at least three nights per week.”
“When Sabrina perceives unclean conditions in her residential living environment, she must perform rituals designed to render the unclean condition tolerable to her inhabitation,” Beram’s attorneys stated in her first court filing in 2021. “Performance of these rituals can take several hours. Not infrequently, Sabrina intuitively concludes that she cannot complete the cleaning rituals on any given night in sufficient time to obtain a restful sleep.”
When she cannot complete her rituals, “she experiences a powerful cognitive compulsion she describes as like an electric fence around the threshold of her apartment. The compulsion commands her not to enter any further into her apartment beyond the tiles inside the door” and “she sleeps in her vehicle in the parking lot appurtenant to her apartment.”
This practice has brought Beram into conflict with the city of Sedona’s anticamping ordinance for the last three years, beginning in November 2020, when she was sleeping in her car at a public trailhead and was allegedly warned off by a police officer, who allegedly informed her that her name and license number would be filed by the city for future reference.
Then-Police Chief Charles Husted denied that SPD had ever had any contact with Beram regarding the camping code. Beram’s landlord subsequently notified her on Nov. 25 that her lease would not be renewed, at first due to a suspicion that she had been subletting her apartment and later on the grounds that she was violating city code.
Yavapai County Community Legal Services contacted the city of Sedona on Beram’s behalf, requesting that the city provide Beram with an exemption from enforcement of Sedona City Code 9.10.010, the anti-camping ordinance, due to her disability. City Attorney Kurt Christianson denied the request on Feb. 22, 2021, stating that the city did not have the authority to grant such a blanket exemption and that the Americans with Disabilities Act did not apply because “the city is not providing any public accommodation … Indeed, the city is not in the business of providing housing.”
“Additionally,” Christianson added, “the request is not reasonable because sleeping in a car is not safe due to the heightened risks of robbery or injury in a car accident, or healthy given the extreme hot and cold temperatures that can occur in Sedona and the risks of carbon monoxide poisoning when using a stationary motor vehicle during these times.”
After the city of Sedona refused to grant Beram a “reasonable modification” to the code to accommodate her disability, she filed a suit in federal district court against the city and her landlord on April 2, 2021 for violating the ADA and the Eighth Amendment. Beram and her landlord then came to an agreement to permit Beram to sleep in her car on the property when needed, provided that the landlord did not receive a warning or citation from the city as a result, and Beram filed an amended complaint excluding the landlord from the suit on June 21.
The city moved for dismissal of the complaint due to lack of standing on July 16, and Beram proposed to file a second amended complaint on Aug. 31.
District Judge Diane Humetewa dismissed Beram’s suit on Feb. 28, 2022. Humetewa concluded that Beram had not demonstrated an imminent and credible threat of injury by the city, that the single verbal warning given to Beram by one officer did not rise to the level of a threat to initiate proceedings against her and that she had not demonstrated a history of prosecution by the city.
She has received two speeding tickets from the city, one in 2021 and one in 2023.
“In the 16 years since the code’s enactment, plaintiff’s [complaint] does not allege a single incident in which a person has been criminally prosecuted,” Humetewa wrote. “To be sure, plaintiff need not await an arrest or prosecution to have standing to challenge the constitutionality of a criminal statute. She is, however, required to show a credible threat of prosecution. Plaintiff here has admittedly violated the code hundreds of times over the course of more than a year, and yet has never been cited.”
Beram filed a third amended complaint on March 15, 2022, repeating her previous claims and requesting that the court find Sedona’s anti-camping ordinance to be unconstitutional under the Eighth Amendment. After finding that Beram had not been warned or cited again by Sedona police in the intervening time and that she had not been evicted by her landlord as a result of city action, Humetewa dismissed the suit again.
Noting that Beram’s third complaint had included mention of an incident in which Sedona police had cited two people for sleeping in their vehicle in October 2021 as evidence that she faced a generalized threat of prosecution, Humetewa added that such an allegation was at best conjectural and hypothetical. Beram’s attorneys filed a proposed fourth complaint on Feb. 21, 2023, including documentation of a second warning given to her on Sept. 10, 2022 by SPD officer Catherine Beers.
“The court finds this additional warning insufficient to show the threat of enforcement is imminent,” Humetewa wrote, and dismissed the complaint with prejudice on May 18.
On Oct. 31, Beram’s attorneys appealed Humetewa’s decision to the Court of Appeals for the Ninth Circuit. The appeal asserts that Beram suffered injury-in-fact on two occasions when the city enforced the anti-camping ordinance against her by telling her to move along and thus established standing, and seeks to have the case remanded to the district court to proceed to trial.
The Arizona Center for Disability Law, National Homelessness Law Center, Disability Rights Education and Defense Fund and the William E. Morris Institute for Justice moved for leave to file an amici curiae brief in the case on Nov. 7. The proposed brief argued that Beram has provided sufficient facts to demonstrate both standing and a credible threat of prosecution.
“When individuals with disabilities challenge a public entity’s denial of a reasonable modification, the requisite ‘injury in fact’ for standing purposes occurs upon the refusal to provide the reasonable modification,” the brief stated. “Only three months ago the Ninth Circuit separately applied the Oklevueha and Driehaus analyses to hold that plaintiffs who, unlike Ms. Beram, experienced neither personal threats of prosecution nor enforcement action short of prosecution, nonetheless had standing because their compliance with a law they alleged to interfere with the exercise of a constitutionally protected right constituted a cognizable injury-in-fact on its own.”
The city has not yet filed a reply to Beram’s appeal, which will be due in January.
Source: Sedona Red Rock News
