On Thursday June 23, KOB-4 ran a story where Mayor Tim Keller claimed that when it comes to the homeless, his hands are tied. Keller claimed the homelessness crisis that plagues Albuquerque is not unique to New Mexico and said “federal protections” have made some criminal enforcement difficult.
With footage of the illegal homeless encampment at Coronado Park as an introduction backdrop to the KOB 4 report, Keller said this:
“But those people are there [at Corando Park] by choice, a 100% by choice and they are protected federally. Otherwise, this problem would have been gone in all American cities. … The law is the law and you know you want to see someone a lot more powerful than a Mayor to talk to a federal judge.”
Mayor Keller said people at Coronado Park have turned down services offered by the city.
Channel 4 reported that during the June 22 meeting of the Albuquerque City Council’s meeting a city attorney explained the federal pressures the city is operating under. The city attorney cited federal cases arguing that they place limitations on the city. The main case cited by the city attorney when it comes to enforcing the law and the homeless was McClendon v. City of Albuquerque. The city attorney said this
“[When it comes to] “quote, unquote” homeless crimes, those offenders are not allowed to be arrested as a primary intervention”.
The case of McClendon v. City of Albuquerque had absolutely nothing to do with the rights of the homeless. It is a class-action lawsuit filed on January 10, 1995 in the United States Federal District Court by detainees at the Bernalillo County Detention Center (BCDC) in Albuquerque. The 1995 class-action lawsuit alleged that gross overcrowding and racial discrimination at the jail violated the constitutional rights of inmates.
The federal class action lawsuit sought injunctive and declaratory relief enjoining the operation of the jail exceeding its capacity and operating it with deplorable living conditions. At the time the lawsuit was filed, the downtown 8 story Bernalillo County detention center, torn down late last year, had a maximum capacity of 800, but the jail was repeatedly overcrowded with as many as 1,400 inmates who were often doubled up and living conditions were abhorrent. The overcrowding became so bad that the federal court would hold weekly and monthly status conferences and order the release of nonviolent defendants to reduce the overcrowding at the jail.
It was explained to the city council that in 2017 the city entered in to a stipulated settlement agreement in the McClendon federal case where the city agreed that people accused of nonviolent misdemeanors will not be arrested where there is no circumstances requiring an arrest. The primary reason for the settlement was to prevent jail overcrowding.
The city attorney explained that when it comes to “homeless crimes”, ostensibly meaning illegal camping, criminal trespassing and loitering, those offenders are not to be arrested as the primary intervention. Under the settlement terms, police still have the option to issue citations and still have the discretionary authority to make felony and misdemeanor arrests as they deemed appropriate and where the circumstances warrant.
The city attorney said this:
“We are trying to advise the best we can [of] the least expensive means to be the most productive and respect people’s civil rights. ”
KOB 4 interviewed UNM law professor Joshua Katzenberg and asked how much power does the city and APD really have when it comes to enforcing the law against the homeless. Professor Kastenberg had this to say:
“The City’s hands and the Police hands are tied to a certain extent, that’s true. … Coronado Park you could put in any major city and we would be having this discussion right now. … I have talked to police officers and there is a fear of lawsuits, there is a sort of sense of hopelessness. That’s the sad state of affairs. … There should be a multi-tiered approach to this. One is increasing bed space the other is increasing mental health services. Another one is making it possible so that when you can get enough people to be where they’re supposed to be, those that don’t go can be prosecuted, you know, cited and prosecuted under the law by the police.“
KOB 4 contacted APD and asked them to quantify how they are enforcing the law when it comes to the low-level, nonviolent offenses committed by the homeless. An APD spokesman told KOB that since the beginning of 2022 there have been issued 2,308 citations to the homeless and issued 614 trespassing notices with 3 trespassing stops revealing outstanding warrants.
The link to the full 3 minute, 34 second unedited KOB story is here:
HOUSING FIRST POLICY
The City of Albuquerque has adopted the Housing First policy as mandated by the Homeless Emergency Assistance and Rapid Transition to Housing Act (HEARTH Act) in order to secure federal funding. The HEARTH Act provides that in order to receive federal dollars, cities must adopt a “housing first” policy and, crucially, that homeless organizations had to work together in “continuums of care” under a single lead agency, coordinating their programs and sharing data.
On May 16, the Albuquerque City Council voted to approve the 2022-2023 fiscal year city budget which will begin on July 1,2022 . The 2022-2023 approved city budget provides major funding of upwards of $60 Million to deal with the homeless. The largest budgeted items for the homeless or near homeless in the approve the 2022-2023 fiscal year city budget are as follows:
• $24 million in Emergency Rental Assistance from the federal government, which the City will make available in partnership with the State.
• $4 million in recurring funding and $2 million in one-time funding for supportive housing programs in the City’s Housing First model. In addition, as recommended by the Mayor’s Domestic Violence Task Force, the budget includes $100 thousand for emergency housing vouchers for victims of intimate partner violence.
• $4.7 million net to operate the City’s first Gateway Center at the Gibson Medical Facility, including revenue and expenses for facility and program operations.
• Full funding for the Westside Emergency Housing Center which is operated close to full occupancy for much of the year.
On October 23, 2019, it was announced that Albuquerque’s West Side Emergency Housing Center was expanded to provide a coordinated approach to homelessness. The homeless use that facility to get medical care, treatment for addiction and behavioral health, job placement and case management services. The west side shelter now has the University of New Mexico Health Sciences Center, Presbyterian Hospital and Alburquerque Health Care for the Homeless providing medical services two days a week. It also has case management services being provided by Centro Savila, funded by Bernalillo County. Job placement opportunities are being provided by workforce connections.
KELLER’S STATE OF THE CITY ADDRESS
On Saturday, June 25, Mayor Tim Keller gave his “State of The City” address. Not at all surprising, Keller bought up the city’s homeless crisis. Keller noted that homelessness is “on display in so many areas in our city.”
“Keller said the city needs an all-of-the-above approach, citing rental-assistance vouchers, affordable housing development, hotel-to-apartment conversions, and the long-awaited Gibson Health Hub. Located in the old Lovelace hospital on Gibson, the city has begun work to create an on-site medical respite facility and medical sobering center, plus a Gateway Center homeless shelter, though the shelter component – which voters in 2019 approved funding for – remains tied up in neighborhood appeals.’
In what was described as one of the most animated moments of his 40-minute address, Keller countered criticism that the city does not do enough to clean up encampments, saying crews “legally” disband dozens each week, but will not pursue what he deemed simplistic and inappropriate solutions.
Keller said this:
“We will stand up against shallow ideas that will neither work, nor are remotely humane … We will not round up people; we will not force people on to a bus; we will not arrest people who have not committed an arrestable crime; we will not pull your officers off your 911 calls for somebody passed out under a tree.”
The link to quoted news source material is here:
SPECIAL ORDER 17-53 AND SOP 2-80
It was on May 10, 2018 in a memo addressed by then APD Chief Gorden Eden to all sworn APD personnel that Department Special Order 17-53 was issued. Special Order 17-53 and 2-80 were the result of the settlement of the 20-plus year McClendon Lawsuit. As noted, the lawsuit filed against the City of Albuquerque and Bernalillo County was filed by an inmate arrested for a non-violent misdemeanor. The lawsuit primarily focused on civil rights violations and the conditions within the City/County lockup.
Special Order 17-53 states:
“[A]ll officers shall issue citations when appropriate in lieu of arrests on non-violent misdemeanor offenses. … officers shall issue citations when appropriate in lieu of arrest on non-violent misdemeanor offenses when there are no circumstances necessitating an arrest.”
The misdemeanor offenses affected by Special Order 17-53 include criminal trespass, loitering, criminal damage to property under $1,000, shoplifting under $500, shoplifting under $250, prostitution, receiving or possessing stolen property under $100. Note that the homeless are not mentioned. When I citation is issued for trespass or loitering, the officer can instruct the nonviolent offender to move on under the threat of arrest. The policy remains in place to this day.
The memo makes it clear that officers may make an arrest if it is necessary, and if they do, an incident report must be prepared, and the incident report must include the reasons why an arrest was made. The special-order states that officers have the opportunity to take offenders wanted for non-violent misdemeanor offenses to Metropolitan Court to resolve warrants or fines instead of hauling them off to jail. However, the arrested individual must have the full amount of the fine or bond in cash. Those arrested also cannot go through a bonding agency.
APD OFFICERS CAN MAKE ARRESTS
At the time the Special Order was issued, City and police officials pointed out that it made no changes to police policy. APD Chief Jerry Galvin in 2001 issued a similar order, and since then the department policy has been to advise officers to issue citations for non violent crimes where appropriate, and officers have discretion in deciding when to issue a citation or to arrest someone. According to then City Attorney Jessica Hernandez:
“If there is any part of a situation that makes an officer think an arrest is warranted, they’ll make the arrest.”
At the time the special order was issued, then Assistant Chief Robert Huntsman issued the following statement:
“This order in no way restricts officers’ discretion to make arrests when necessary to protect the public. Citations have always been an available option for certain non-violent misdemeanor offenses. This special order … remind officers to issue citations ‘when appropriate’ and ‘when there are no circumstances necessitating an arrest.’ We are still aggressively pursuing repeat offenders, and this order does not change an officer’s ability to arrest.”
APD further made it clear the order would not affect DWI arrests.
STANDARD OPERATING PROCEDURE ORDER 2-80
Special Order 17-53 was made into SOP 2-80 that deals with felony and misdemeanor arrests. SOP 2-80 is very succinct and provides as follows:
2-80 ARRESTS, ARREST WARRANTS AND BOOKING PROCEDURES
“2-80-1 Police Department policy is to arrest a felony violator of laws which its officers are empowered to enforce. Officers shall issue citations when appropriate in lieu of arrest on non-violent misdemeanor offenses (not to include DWIs) when there are no circumstances necessitating an arrest. In all cases, officers shall follow correct legal procedures required in arresting, booking, and filing charges against such violators.”
2-80-2 Rules Procedures
A. Felony Arrest Authority.
1. Felony arrests may be made through the authority of a warrant, or on probable cause when there are exigent circumstances preventing the officer from obtaining a warrant. …
2. Probable cause arrests may be made for all felonies when there are exigent circumstances preventing the officer from obtaining a warrant.
3. Exigent circumstances include emergency situations requiring swift action:
a. to prevent imminent danger to life or serious damage to property; or
b. to forestall the imminent escape of a suspect; or
c. to forestall potential destruction of evidence; or
d. an exigency may also exist where it is not reasonably practical to secure a warrant under the circumstances, such as where the additional time to obtain a warrant makes it impractical.
4. The New Mexico Supreme Court has held that “exigency will be presumed” where an officer observes the commission of a felony, without reference to imminent danger, escape, or destruction of evidence, and that an on-the-scene arrest supported by probable cause will usually supply the requisite exigency.
5. … .
6. … [A]n officer when deciding whether to effect an arrest or to merely submit the case for indictment consideration may make a probable cause felony arrest when probable cause clearly exists, under the following circumstances:
a. When the offender has no community ties to the Albuquerque metropolitan area, e.g. transient, out of town resident, etc.; or
b. When one or more prior felonies or multiple offenses have been committed by the offender; or
c. When the arrest is approved by a supervisor based on extenuating circumstances; and
d. One or more exigent circumstance as described under A. 3 (1) through (4) above must be present.
B. Petty Misdemeanor/Misdemeanor Arrest Authority
1. Officers shall issue citations when appropriate in lieu of arrest on non-violent misdemeanor offenses (not to include DWIs) when there are no circumstances necessitating an arrest. Whether or not the person has a permanent address may not be the sole factor in determining to arrest the person rather than issuing a citation. If the officer issues a non-traffic citation, the officer must complete an incident report. If an arrest is necessary, the officer will include the reason in the narrative of the corresponding incident report.
2. When exigent circumstances justify the arrest.
C. Use of the Metropolitan Court Bonding Window
1. Officers will use the bonding window at Metropolitan Court … [for an offender] to post a bond, pay a fine, or to resolve or quash a warrant in lieu of taking an arrested person to the Prisoner Transport Center (PTC) or the Metropolitan Detention Center (MDC) when feasible.
The link to review to review online all of APD’s Standard Operating Procedures is here:
The link to quoted source material is here:
STATE LAW AND CITY ORDINANCE DEFINING A PUBLIC NUISANCE
Both New Mexico state law and city ordinance define a public nuisance.
Under state law, a public nuisance is define as follows:
30-8-1 Public Nuisance (Defined)
A. public nuisance consists of knowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority which is either:
A. injurious to public health, safety and welfare; or
B. Interferes with the exercise and enjoyment of public rights, including the right
to use public property.
Whoever commits a public nuisance for which the act or penalty is not otherwise prescribed by law is guilty of a petty misdemeanor.
11-1-1-10 PUBLIC NUISANCES PROHIBITED
“(A) It shall be unlawful for any owner, manager, tenant, lessee, occupant, or other person having any legal or equitable interest or right of possession in real property …or other personal property to intentionally, knowingly, recklessly, or negligently commit, conduct , promote, facilitate, permit, fail to prevent, or otherwise let happen, any public nuisance in, on or using any property in which they hold any legal or equitable interest or right of possession.
(B) … .”
ENVRONMENTAL HEALTH STUDY OF CORONADO PARK SOUGHT
Confidential sources with APD have said that an environmental health study or ground testing has been performed either by the APD crime lab or the city’s Environmental Health Department on the Coronado Park grounds. According to the APD source, the study revealed a highly toxic level of contaminates, including drugs, human waste and fluids and dangerous levels of molds to the extent that the park grounds are dangerous and where exposure can affect a person’s health.
According to the APD source, a final report was provided to the Mayor’s Office and APD Chief Harold Medina and once reviewed, orders were issued that the study was not to be released to the general public for fear that the City would have to permanently close the park. Upon information and belief, a request for Inspection of Public records has been made by media outlets for the Coronado Park environmental study, but no response by the city has been reported.
COMMENTARY AND ANALYSIS
Research shows that housing is the most effective approach to end homelessness with a much larger return on investment than offering temporary housing such as government sanctioned encampments. When Mayor Keller in his State of the City address advocated rental-assistance vouchers, affordable housing development, hotel-to-apartment conversions, and the long-awaited Gibson Health Hub and Homeless Shelter on Gibson he was advocating a “housing first” policy which is sound policy that will solve the city’s homeless crisis in the long run.
APD POLICE RELUNCTANCE TO ARREST MORE OUT OF FEAR THAN REALITY
What has been a common public relations ploy of the APD police union for the past 3 years is that APD officers feel their hands are tied and they are afraid to do their job for fear of being disciplined or that the DOJ reforms are the cause of the city’s high crime rates and officers being shot. It is not that their hands are tied. The blunt truth is that APD police officers reluctance to do their jobs and enforce the law is more out of fear as opposed to the reality.
If an APD officer adheres to their training in constitutional policing practices and APD standard operating procedures, the likelihood of any lawsuit being filed against them or discipline being imposed is not at all likely or for that matter remote at best. The fact that police are required to file offense reports with nonviolent misdemeanor arrests justifying the arrest more likely than not contributes to an officer’s reluctance to act given the high volume of calls for service police are dispatched to on any given day. The time it takes to write and offense report detailing the facts and circumstances of a nonviolent crime can be time consuming with time better spent dealing with more urgent emergency 911 calls.
THE LAW IS NOT THE LAW KELLER SAYS IT IS
It was false for Keller to say “the law is the law” and “those people are there [at Corando Patk] by choice, a 100% by choice and they are protected federally.” Keller admitted in his State of the City address that he and city policies are what is standing in the way of APD enforcing the law when it comes to the homeless.
Keller in his state of the city address objected to criticism that the city does not do enough to clean up encampments by saying crews “legally” disband dozens each week, but he will not allow the city to pursue what he deemed “simplistic” and inappropriate solutions.
Keller essentially went off the rails for dramatic effect in his State of the City Adress when he became animated and said:
“We will stand up against shallow ideas that will neither work, nor are remotely humane … We will not round up people; we will not force people on to a bus; we will not arrest people who have not committed an arrestable crime; we will not pull your officers off your 911 calls for somebody passed out under a tree.” This coming from Mayor Keller who embraced “safe outdoor spaces” and “living lots” which are as simplistic and inappropriate a solution as one can get. Both are city sponsored homeless encampments that are temporary tent encampments.
No one is advocating rounding up people or forcing people onto a city bus and taking them where they do not want to go. No one is advocating arresting people who have not committed a crime.
Keller on the other hand has no problem advocating “grouping”of the homeless, as he put it, Coronado Park, which is just as simplistic and cruel as to what he is condemning. What Keller has allowed at Coronado Park is not working and it’s not “remotely humane”.
The are no state or federal laws nor court rulings that say if you are homeless, you are given immunity to break the law and you cannot be arrested for violating the law. Keller knows damn well that being homeless is not a crime but his attempt to blame the federal courts and saying “the law is the law” is pathetic and a lie. Being homeless is not a crime, but that does not mean the homeless are allowed to violate the law.
It is a dereliction of his duty for Mayor Keller to allow APD to ignore the city’s anti-camping ordinances, vagrancy laws, civil nuisance abatement laws and criminal laws, and for him to pretend those laws do not exist to accommodate the homeless.
CORONDO PARK KELLER’S SYMBOL OF FAILURE
It was an astonishing admission of failure when Mayor Tim Keller said this about Coronado Park:
“[The federal courts] will not allow us to just walk in and arrest someone because they’re homeless and the current situation beats the alternative. … It is not lost on me that we created Coronado Park because Wells Park said, ‘We don’t want these folks in our neighborhood,’ and we agree with them. And that’s why they were all grouped to one area. … So you also got to remember the alternative. You can’t have it both ways — you want to close Coronado Park, you are going to open all of Wells Park neighborhood to something none of us want to see.”
Link to quoted news source:
Grouping the homeless, as Keller says, in a city park should not be an alternative given all the resources the city is spending to help the homeless. This so called “grouping” coming from a mayor who for his entire first term made dealing with the homeless crisis a corner stone of his administration. A Mayor whose administration spent $40 million in 2022 and will spend $60 million in 2023 to provide assistance to the homeless. A Mayor who saw to it that the city purchased the 529,000 square-foot Lovelace Hospital facility on Gibson for $15 million to have it converted into a Gateway Shelter and who made the westside shelter a 24-7 facility.
It was disingenuous for Keller to say “[The federal courts] will not allow us to just walk in and arrest someone because they’re homeless and the current situation beats the alternative. … .“ The current situation does not beat the alternative of having a zero tolerance of allowing illegal encampments and allowing the homeless to squat all over the city and not enforce the law.
There have been 4 homicides at Coronado Park since 2020. How many more killings, rapes, aggravated assaults and how many more crimes have to be committed at Coronado Park before the Mayor Keller and the City realize the mistake made to allow the park to become overrun with the homeless and allow them to camp illegally?
The city has allowed a once beautiful and pristine park dedicated to public use to become a festering blight on the community. Simply put, it has become an embarrassment with the city violating its own ordinances and nuisance laws by allowing overnight camping and criminal conduct in the park thus creating a public nuisance both under state law and city ordinance. Coronado Park has now become a symbol of Keller’s failure as Mayor to deal with the homeless crisis.
Mayor Tim Keller could use the inherent authority of his office and issue executive orders to clean up and remove unlawful encampments and permanently close Coronado Park. After a full term in office, Keller is reluctant to do just that out of fear of being accused of being insensitive to the plight of the homeless. What Keller has now shown is that he has been a failure dealing with the homeless crisis and he is being insensitive to the needs of the general public and to public safety.
CORONADO PARK IS A PUBLIC NUISANCE
It is clear from the plain meaning of the state statute and the city ordinance defining a public nuisance that Coronado Park is being operated as a unlawful encampment that is “injurious to public health, safety and welfare … and interferes with the exercise and enjoyment of public rights, including the right to use public property. The city is violating its own public nuisance law when it comes to Corondo Park by “intentionally, knowingly, recklessly, or negligently commit, conduct, promote, facilitate, permit, fail to prevent, or otherwise let happen, any public nuisance in, on or using any property in which they hold any legal or equitable interest or right of possession.”
Now that Mayor Keller has ignored and condoned a festering problem that is known as Coronado Park for 4 years affecting a public facility, the City Council needs to fill the leadership gap. The city council needs to enact forthwith a resolution calling for the immediate and permanent closure of Coronado Park, order its cleanup and “decommission” the open space as a public park and order the fencing off of the park. The city council resolution needs to order the Parks and Recreation Department to conduct a study as to how the open space can be better utilized within the city’s park system.
As for Mayor Tim Keller, before he says “the law is the law”, he may want to try and become a licensed attorney or at least hire city attorneys that have a practical understanding of both civil and criminal law who can advise him what the law really is and not what he thinks it is.