Sensing v. Harris – 12/20/2007

January 2, 2008

Arizona Court Of Appeals Division One Holds That Mandamus Relief Is not Appropriate to Order the Phoenix Chief of Police to Enforce a City Ordinance.

Roger Sensing (“Sensing”), a Phoenix business owner, sought a writ of mandamus ordering City of Phoenix Police Chief Jack F. Harris (“Chief”) to enforce a city ordinance prohibiting solicitation on city streets. Mr. Sensing alleged that for a number of years people have been standing adjacent to the streets next to his business soliciting occupants of vehicles in violation of a Phoenix city ordinance. Despite numerous requests by Mr. Sensing that the City of Phoenix Police Department enforce the ordinance, the Department refused to do so. As a result, Mr. Sensing filed a verified complaint seeking judicial intervention in the form of a writ of mandamus ordering the Chief to enforce the ordinance. The superior court dismissed the complaint, and Mr. Sensing timely appealed.

The Arizona Appeals Court affirmed the superior court’s dismissal. The Court first noted that mandamus is an extraordinary remedy that can only be employed to compel a public official to perform non-discretionary acts or to act properly where the official has abused his discretion. Because law enforcement activities by police and prosecutors are generally considered to be discretionary, they are not appropriate for mandamus relief. The Court rejected Mr. Sensing’s argument that enforcement of the city ordinance is mandated by Phoenix City Code § 2-119 which states “There shall be a Police Department, headed by a Chief of Police. He shall be responsible for the enforcement of State laws and city ordinances.” While this code section gives the Chief a general duty to enforce city ordinances, it leaves him discretion to choose what, if any, enforcement actions will be taken. The Court cited the United States Supreme Court’s opinion in Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748 (2005) in support of its holding. Finally, the Court found that Mr. Sensing had alleged no facts showing the Chief had abused his enforcement discretion.

Presiding Judge Irvine authored the opinion; Judge Weisberg and Judge Norris concurred.