On Monday, December 19, the American Civil Liberties Union of New Mexico, the NM Center on Law & Poverty, and the law firms of Ives & Flores, PA and Davis Law New Mexico filed a “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief” against the City of Albuquerque on behalf 4 men and 4 women identified Plaintiffs alleged to be homeless. According to the complaint, not one of the 8 plaintiff’s allege they were charged or arrested for refusing to leave the park on the day it was closed nor were they jailed. They allege they were displaced from Coronado Park when the city closed it and that the city did not provide satisfactory shelter. According to an ACLU press release, the lawsuit was filed to stop the City of Albuquerque from destroying encampments of the unhoused, seizing and destroying personal property and jailing and fining people.
This blog article is an in-depth analysis of the lawsuit quoting the complaint followed by analysis and commentary supported by news accounts.
The link to review the full unedited complaint is here:
GENERAL NATURE OF THE CLAIMS
The lawsuit was filed in State District Court. Only the City of Albuquerque is specifically named as a Defendant. Mayor Tim Keller, APD and the Family and Community Service Department are not named as defendants. The 46 page lawsuit alleges that all 8 plaintiffs were displaced from Coronado Park on August 27 when the city permanently closed the city park. The lawsuit is seeking the case be certified as a class action lawsuit with allegations regarding each of the individual 8 plaintiffs made to create sperate classes to represent themselves and others yet to be identified and who may be in the class and who are unhoused throughout Albuquerque.
The lawsuit alleges the city unlawfully seized their personal property, denied them due process of law, violated their constitutional rights by destroying their property and forced all the unhoused at Coronado Park out with nowhere for them to go and with the city not providing shelter for them. The lawsuit is seeking court orders that will require the city to cease and desist enforcement actions to stop the unhoused from camping in public spaces which includes public streets, public rights of ways, alleyways, under bridges and city parks unless the city has shelter or housing for them.
ALLEGATIONS OF HOUSING SHORTAGES AND HOMELESSNESS
The general allegations of homelessness contained in the complaint are as follows:
“The problem of a lack of affordable, safe, stable residences in Albuquerque has been ongoing for years and has been caused in part by the City’s own policies and practices. … Residential permitting and development within the City have long focused on single family, detached homes, which are generally less affordable than multifamily units, like apartment buildings, or smaller attached units, such as townhomes and duplexes. …
Albuquerque Mayor Timothy Keller recently acknowledged that there is a housing crisis in the city, noting that the Albuquerque area needs between 13,000 and 33,000 new units to address the housing supply. …
In recent years, an upward shift in home prices nationally has put home ownership out of reach for many people, pushing them into the rental market and driving up rents. … In addition, there is an increasing trend of institutional investors, rather than homeowners, buying single-family homes that first-time home buyers might otherwise purchase, and renting them out at sky-high rates. …
Since 2000, median rents have increased by 112% in the Midwest, 135% in the South, 189% in the Northeast, and 192% in the West. … In 2021, rents increased by an average of 17% nationwide. Rents in Albuquerque increased between 10% and 19.9% in just the first quarter of 2022. … Rent increases have outpaced income growth, decreasing the supply of rental units that are accessible to lower-income individuals and households.
The lack of affordable housing has an even greater impact on people with disabling conditions. A 2016 study showed that the national average rent for a modest one-bedroom unit exceeded 100% of monthly Social Security Supplemental Security Income (SSI) payments, and the national average rent for a studio or efficiency apartment was equivalent to 99% of monthly SSI payments..
The unavailability of affordable housing is a primary cause of homelessness. … A second major factor is a lack of employment opportunities and jobs that don’t pay an adequate living wage. …
The National Low Income Housing Coalition estimates that a “housing wage,” which is the hourly wage a full-time worker must make to afford an apartment without spending more than 30% of their income, is $25.82 an hour in order to afford a modest two-bedroom residence. The current minimum wage in New Mexico is $11.50. 19. Many unhoused people are employed, but still cannot afford housing.
Other common contributors to homelessness include: domestic violence against women and children; health issues; and mental health issues, including trauma; and addiction. … The percentage of adults with disabilities (including difficulties with hearing, vision, cognition, mental health, ambulation, self-care, and independent living) is higher among the unhoused than it is among the general population.
The percentage of adults with a substance abuse disorder is also higher among the unhoused than it is among the general population. In Albuquerque, 44% of surveyed unsheltered adults self-reported having a substance abuse disorder. … People with complex health needs, often require supportive services in addition to housing.
Although some individual characteristics, such as mental illness, disabilities, or substance abuse are contributing factors to some people’s homelessness, the essential problem that many unhoused people face is a lack of affordable housing.
The lack of affordable housing and adequately paid employment in Albuquerque has not only caused precariously housed individuals and families to lose their housing, but it has also presented a barrier for currently unhoused people to exit homelessness.
The federal government requires states receiving certain federal funding to conduct an annual “point-in-time” count of people experiencing sheltered and unsheltered homelessness on a single night in January each year. Point-in-time counts are the best available data for determining the number of unhoused people, but they are known to provide gross undercounts because of the difficulties in finding all of a location’s unhoused individuals on a single night. …
The 2022 point-in-time count report prepared by the New Mexico Coalition to End Homelessness reflected a total of 2,594 individuals who were in emergency shelters, transitional housing, or unsheltered in New Mexico. The New Mexico Coalition to End Homelessness estimates that the actual number of New Mexicans experiencing homelessness is between 15,000 and 20,000—a number that captures residents who are temporarily living with others, living in unsafe housing conditions, sleeping in cars, or staying in motels, in addition to those staying in shelters or outdoors.
Of the 2,594 unhoused individuals counted in the 2022 point-in-time survey, over half of these—some 1,311—were in Albuquerque. … If the actual numbers of unhoused people estimated by the New Mexico Coalition to End Homelessness are correct, and if over half of the unhoused people in the state live in Albuquerque, the real number of unhoused people in the city would be between 7,500 and 11,000. Of the 1,311 homeless individuals counted in Albuquerque during the 2022 point-in-time count, 270 of these were children under the age of 18. However, the number of homeless youths is likely closer to 2,300. …”
Paragraphs 5 to 34, “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief”.
ANALYSIS AND COMMENTARY
The Plaintiff’s allegations relating to residential development is absurd and very misleading. It reflects a level of sure ignorance of the permitting and development process of a growing city. The complaint alleges “The problem of a lack of affordable, safe, stable residences in Albuquerque has been ongoing for years and has been caused in part by the City’s own policies and practices. …Residential permitting and development within the City have long focused on single family, detached homes, which are generally less affordable than multifamily units, like apartment buildings, or smaller attached units, such as townhomes and duplexes”. This allegation suggests the concentration on residential development was wrong or misguided. It is the housing market, private investment, the real estate development community, the banking community and construction industry that decides the focus of housing construction and where to invest and build based upon market demands and conditions and not the dictates of the city. The city role is to see that development conforms with zoning laws and construction codes.
The civil complaint devotes one half of the complaint to general allegations of homelessness in the City of Albuquerque, the unavailability of shelter for the homeless and how the city is enforcing state and city laws that apply to all residents of the city. The complaint cites statistics that are 3 years old alleging there are only 8 service providers and the number of shelter beds available in Albuquerque is 633. It alleges that the number has not substantially changed since 2019.
There are in fact 16 service providers and shelter providers in the city. New shelter space is available or is being constructed in the city, including the new city Gateway Shelter. The complaint fails to disclose the extent of shelter space and various services available in both the public and private sectors including shelter and services available in both the city and the county.
The complaint makes the questionable conclusions and lays blame on the city that “The unavailability of affordable housing is a primary cause of homelessness” and that “A second major factor is a lack of employment opportunities and jobs that don’t pay an adequate living wage…”. The complaint alleges that economic conditions, unemployment, drug addiction and mental illness are merely “contributing factors” to homeless and fails to acknowledge that city government has very little or no control over these factors.
The complaint places blame on the city’s policies and practices for causing a housing shortage, along with escalating home prices that have put ownership out of reach and have resulted in more pressure on the rental market. The complaint points to the trend of institutional investors buying single-family homes and renting them at sky-high rates.
In Albuquerque, unemployment is not a major contributing factor to the unhoused. Studies and surveys of the unhoused have shown that it is mental illness and drug addiction that are the 2 major causes of homelessness. The 2022 Point In Time Survey of the unsheltered in Albuquerque found that a whopping 90% combined of the unsheltered are suffering from mental illness or drug addiction.
2022 “POINT IN TIME” SURVEY
The lawsuit goes to great length to disparage the Point In Time Survey (PIT) that found in 2022 there were 1,311 homeless in the city. The law suit alleges that Point in Time Surveys “are known to provide gross undercounts because of the difficulties in finding all of a location’s unhoused individuals on a single night”. The lawsuit makes the sweeping allegation “The New Mexico Coalition to End Homelessness estimates that the actual number of New Mexicans experiencing homelessness is between 15,000 and 20,000”. The allegation is made without providing any definitive survey information nor count and the inflated claim has been discredited by the PIT surveys over the years.
The PIT survey statistics have never supported the allegation that the actual number of New Mexicans experiencing homelessness is between 15,000 and 20,000. Each year the statistics are released, charitable organizations and unhoused advocacy groups downplay or disparage the numbers no doubt knowing increased federal funding is dependent on the numbers. The more unhoused, the more funding they get.
The “Point in Time” (PIT) survey is conducted to determine how many people experience homelessness on a given night in Albuquerque, and to learn more about their specific needs. The PIT count is the official number of homeless reported by communities to the federal Department of Housing and Urban Development (HUD) to help understand the extent of homelessness at the city, state, regional and national levels and for governments to qualify for federal funding.
The PIT count requires the use of the HUD definition of “homelessness”. PIT counts only people who are sleeping in a shelter, in a transitional housing program, or outside in places not meant for human habitation. In other words, PIT counts the most critical who are in need of immediate shelter or housing. Those people who are not counted are those who do not want to participate in the survey, who are sleeping in motels that they pay for themselves, or who are doubled up with family or friends.
This year, the PIT count and survey was taken on January 31, 2022. The PIT report is 40 pages long and includes graphs and pie charts outlining the statistics reported. You can review the entire PIT report at this link:
CITY UNHOUSED NUMBERS
In even numbered years, only sheltered homeless are surveyed for the PIT survey. In odd numbered years, both sheltered and unsheltered homeless are surveyed.
In August, the 2022 the Point In Time (PIT) homeless survey reported that the number total homeless in the city was 1,311 with 940 in emergency shelters, 197 unsheltered and 174 in transitional housing. Surprisingly, the survey found that there are 256 fewer homeless in 2022 than in 2021 which was 1,567. In 2019, the PIT found 1,524 homeless.
The 2022 PIT report provides the odd number years of shelter and unsheltered homeless in Albuquerque for 8 years from 2009 to 2019 and including 2022. During the last 12 years, PIT yearly surveys have counted between 1,300 to 2,000 homeless a year. Those numbers are: 2011: 1,639, 2013: 1,171, 2015:1,287, 2017: 1,318, 2019: 1,524, 2021: 1,567 and 2022: 1,311.
The 1,311 figures in the 2022 PIT report is the lowest number of unsheltered reported for the last 5 years. According to the 2022 PIT report there were 256 fewer homeless in January 2022 than in January 2021, yet the public perception is that the city is overrun by the homeless likely because they have become far more aggressive, more assertive and more visible.
The 2022 PIT data breakdown for the unsheltered for the years 2009 to 2022 in the city is as follows:
Chronic homeless: 67% (homeless 6 months to a year or more)
First-time homeless: 38%
Homeless due to domestic violence: 16%
Adults with a serious mental illness: 46%
Adults with substance use disorder: 44%
(2022 PIT Report, page 7)
Note that a whopping 90% combined of the unsheltered are suffering from mental illness or substance use disorder.
NEW MEXICO UNHOUSED NUMBERS
The 2022 Point In Time Report provides what it referred to “BALANCE OF THE STATE” statistics where the Albuquerque Homeless numbers were excluded. The total estimated number of HOUSEHOLDS experiencing homelessness in the BALANCE OF STATE on January 31, 2022 were reported are as follows: Emergency Shelters: 574, Transitional Housing: 70, Unsheltered: 366. TOTAL: 1,010 (Page 17, Point in Time Survey)
The total estimated number of INDIVIDUALS with one child, without children and with only children experiencing homelessness in the Balance of State on January 31, 2022 were reported as follows: Emergency Shelters: 785, Transitional Housing: 107, Unsheltered: 391. TOTAL: 1,283 (Page 17, Point in Time Survey)
ALLEGATIONS OF UNIHABITABLE WESTSIDE SHELTER AND SHELTER SHORTAGE
The lawsuit details a litany of alleged problems with the Westside Emergency Housing Center (WEHC). The specific allegations are:
“Under the Eighth Amendment, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter” citing the federal case of Martin v. Boise, 920 F.3d 584, 604 (9th Cir. 2019)
Shelter space in Albuquerque is inadequate to provide beds for all of the city’s unhoused individuals. A 2019 report prepared for the City reflected that between City-run shelters and private shelters, there were only 633 beds available.
Of the available shelter beds, the greatest number is at the Westside Emergency Housing Center (“Westside shelter”), a facility housed in a former temporary jail that the City stopped using in 2003. The City variously represents the Westside shelter as being able to house between 300 and 450 people.
The Westside shelter is unsafe, unhealthy, and unfit for human habitation. The building does not meet the essential fire safety and building codes of applicable local codes and state regulations and law, including state fire safety codes … and the City’s own building safety codes.
A recent report from the Albuquerque Fire Department indicates that there are no working fire hydrants on the property. … Federal funds have been used to finance the operation of the Westside shelter, but, on information and belief, the City’s assurances to federal authorities regarding the fitness of the facility have not been, and currently are not being, met.
… The shelter is infested with black mold. … On information and belief, residents have been scalded in the showers at the Westside shelter due to defective mixing valves. At times as few as one shower in the building has been working, such that residents must bathe in mobile showers on trailers out back.
… The shower doors in the women’s pod cannot be closed, such that women do not have privacy while bathing. … On information and belief, showers have, at times, not been accessible for people who use wheelchairs. …
The kitchen is not operable, and the facility cannot pass a health and safety inspection. There is no oven, stove top, or working refrigerator available for use by people residing there. … No certificate of occupancy has been issued to operate the building as a homeless shelter. The last such certificate was issued in 2006.
There is no washing machine or clothes dryer available for residents to clean and dry their clothing. They must wash their clothes in the bathroom sinks and hang them outdoors on the cyclone fencing. … There are bed bugs and parasites in the bedding, and there is no effective method in use to “sanitize” the sheets, blankets, mattresses, and bedding. …
No secure storage space is available for people’s belongings. There are lockers in the building, but residents cannot use them. Residents’ personal property lies directly on the floor under the bunk beds on which they sleep. …
Chronically overcrowded, there are not enough beds for everyone, so people sleep on plastic “boats” on the floor. On information and belief, a complaint was filed with the City Inspector General in March 2022 due to problems with staff misbehavior, including allegations of extortion.
The Westside shelter is in a location that is on the outskirts of the City and is far from services, jobs, and support systems such as family and friends. People who sleep there are separated from case managers, social workers, treatment providers and employment support and 10 other social service programs, and often cannot obtain timely transportation to appointments in town that could help them obtain employment, housing and other supportive services.
Many residents have mental illness and behavioral health disabilities, but, on information and belief, mental health therapy is not provided there. … On information and belief, many unhoused people are banned from the shelter on a permanent basis; sometimes for possession or use of drugs, which are common causes for being banned. …
Couples who are partnered or married cannot stay together if one member of the couple is a man and the other is a woman, since men and women must stay in separate parts of the shelter, causing these people to lose one of their primary forms of social and emotional support.
This separation is particularly difficult for people who have disabilities and rely on their partner for help. People living with minor children are not permitted to stay at the shelter. Women and people whose gender presentation is nontraditional or nonbinary are often harassed at the shelter.
Paragraphs 35 to 62, “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief”.
COMMENTARY AND ANALYSIS
The complaint degrades to the utmost extent the Westside Shelter making inflammatory, unsubstantiated or outlandish hearsay allegations that it is “unsafe, unhealthy, and unfit for human habitation”. It makes the outlandish allegation that the west side shelter can “trigger mental health conditions” the homeless may suffer from, including “post-traumatic stress disorder” ignoring the fact the unhoused can not be forced to use the shelter facility. It does not disclose to what extent the facility has actually been upgraded and remodeled for the unhoused, the extent of services provided by the city, the number of city employees at the facility nor the fact the shelter cite does have a Safe Outdoor Space for the unhoused to park and live out of their vehicles.
The plaintiff’s citation and reliance on the federal case of Martin v. Boise, 920 F.3d 584, 604 (9th Cir. 2019) that ruled in part “ as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter” is dubious at best and is not applicable to the case. The city does offer options of sleeping indoors and financial assistance for housing, but the unhoused reject it.
During the past 5 years, the city has established two 24/7 homeless shelters, including purchasing the Loveless Gibson Medical Center for $15 million to convert it into a homeless shelter. The city is funding and operating 2 major shelters for the homeless, one fully operational with 450 beds and one that will be fully operational by the spring of 2022 that will assist upwards 1,000 homeless and accommodate at least 330 a night. Ultimately, both shelters are big enough to be remodeled and provide far more sheltered housing for the unhoused.
WESTSIDE EMERGENCY HOUSING CENTER
It was on October 22, 2019 that Mayor Tim Keller announce that the Westside Emergency Housing Center (WEHC) would become a 24/7 homeless shelter. The shelter has been upgraded and remodeled to accommodate the homeless and expand the services offered. $1.5 million has been allocated for improvements to the Westside Emergency Housing Center during the current fiscal year. It is a “one-stop-shop” with service providers providing medical services, case management and job placement services. It costs about $4.5 million a year to operate the shelter with about $1 million of that $4.5 million invested in transporting people to and from the facility.
The Westside Emergency Housing Center has immediately available upwards of 450 beds to accommodate the homeless on any given night. The shelter offers shelter to men, women, and families experiencing homelessness in Albuquerque. While staying at the WEHC, the homeless have access to a computer lab, showers, medical examination rooms, and receive three meals a day. The WEHC is a 24/7 operation and has a staff of 80 to assist those who stay at the shelter. The shelter does connect men and women to permeant housing and other resources.
A ”Safe Outdoor Space” has been established at the city of Albuquerque’s Westside Emergency Housing Center. It is a managed site where people who are homeless can sleep overnight, with access to toilets, showers and more. Outdoor camping by the unhoused in the area in all likelihood can be permitted.
GATEWAY HOMELESS SHELTER
On January 4, 2022, the city announced that on January 10, the Gateway shelter will open for “emergency shelter” use. Outreach teams will work specifically to bring in people from unsanctioned encampments around the city and give them an indoor place to stay during the coldest months of the year. The city said the emergency shelter is needed as an alternative to the existing West Side where the unhoused refuse to go. On January 4, The City Council approved a $1.1 million contract with the nonprofit Heading Home to run the emergency shelter through April 3, and then to operate elements of the Gateway Center for three months after that.
It was on April 6, 2021, Mayor Tim Keller officially announced the city had bought the massive 572,000 square-foot building that has a 201-bed capacity, for $15 million. Keller announced that the massive facility would be transformed into the Gateway Center Homeless Shelter.
Interior demolition and remodeling of the 572,000 square foot building has been going on for a number of months to prepare the facility for a homeless shelter. The ABQ Gateway Center will likely to open sometime in the Spring of 2023. Beds for 50 women are planned for the first phase and for the first responder drop-off is to come online early 2023. The city plans to launch other elements of the 24/7 shelter by next summer. According to the 2022-2023 approved city budget, $1,691,859 has been allocated for various vendors to operate Westside Emergency Shelter Center.
The city is planning to assist an estimated 300 unhoused and connect them to other services intended to help secure permanent housing. The new facility is intended to serve all populations of men, women, and families. Further, the city wants to provide a place anyone could go regardless of gender, religious affiliation, sobriety, addictions, psychotic condition or other factors.
The city facility is to have on-site case managers that would guide residents toward counseling, addiction treatment, housing vouchers and other available resources. The goal is for the new homeless shelter to provide first responders an alternative destination for the people they encounter known as the “down-and-out” calls.
The city estimates 1,500 people could go through the drop-off each year. The “dropoff for the down and outs” will initially have 4 beds. It is primarily imagined as a funnel into other services. While that likely will include other on-site services, city officials say it will also help move people to a range of other destinations, including different local shelters, or even the Bernalillo County-run CARE Campus, which offers detoxification and other programs.
The city’s plan is to continue adding capacity, with ultimate plan to have a total of 250 emergency shelter beds, and 40 beds for medical sobering and 40 beds for medical respite beds for a total of 330 bed capacity. Counting the other outside providers who lease space inside the building, city officials believe the property’s impact will be significant.
The link to quoted news source material is here:
CITY’S FINANCIAL SERVICES COMMITMENT TO HOMELESS
Plaintiff’s complaint concentrates on the lack of shelter offered by the city. It simply ignores all the financial assistance the city offers the unhoused and fails to disclose what the unhoused reject.
The city has increased funding to the Family Community Services Department for assistance to the homeless with $35,145,851 million spent in fiscal year 2021 and $59,498,915 million being spent in fiscal 2022 with the city adopting a “housing first” policy. On June 23, 2022 Mayor Tim Keller announced that the City of Albuquerque was adding $48 million to the FY23 budget to address housing and homelessness issues in Albuquerque. The City also announced it was working on policy changes to create more housing and make housing more accessible.
The key appropriations passed by City Council included in the $48 million are:
- $20.7 million for affordable and supportive housing
- $1.5 million for improvements to the Westside Emergency Housing Center
- $4 million to expand the Wellness Hotel Program
- $7 million for a youth shelter
- $6.8 million for medical respite and sobering centers
- $7 million for Gateway Phases I and II, and improvements to the Gibson Gateway Shelter facility
- $555,000 for services including mental health and food insecurity prevention
The link to the quoted source is here:
The 2022-2023 enacted budget for the Department of Community Services is $72.4 million and the department is funded for 335 full time employees, an increase of 22 full time employees. A breakdown of the amounts to help the homeless and those in need of housing assistance is as follows:
$42,598,361 total for affordable housing and community contracts with a major emphasis on permanent housing for chronically homeless. It is $24,353,064 more than last year.
$6,025,544 total for emergency shelter contracts (Budget page 102.).
$3,773,860 total for mental health contracts (Budget page105.).
$4,282,794 total for homeless support services.
$2,818,356 total substance abuse contracts for counseling (Budget page 106.).
The 2022-2023 adopted city contains $4 million in recurring funding and $2 million in one-time funding for supportive housing programs in the City’s Housing First model and $24 million in Emergency Rental Assistance from the federal government.
The link to the 2022-2023 budget it here:
CORONADO PARK ALLEGATIONS AND CLOSURE
The complaint addresses the August 17 closure of Corondo Park in the following manner:
“In part because of a lack of viable shelter space, for many years, the City permitted unhoused people to set up tents or other temporary living sites at Coronado Park. …
A community of up to approximately 120 people was established there with a set of self-enforced rules and norms. … For example, it was understood that if a person needed to leave the park—to go to work, to access services, to get food, to visit family and friends, or to engage in any of the other normal activities of daily life—their belongings would be protected and no other resident would take or disturb them for a period of three days. If, after three days, the owner had not returned, it was understood that the belongings were considered to be abandoned and could be claimed by others in the park. …
This system ensured that people had a stable home base where their few possessions would be preserved, such that they could safely leave in order to function within the larger society outside of the park. …
The City maintained the park by cleaning it every other week. On cleaning days, residents had notice that they were required to leave the park between 7:00 a.m. and 4:00 p.m., while City personnel cleaned the park and removed any trash.
On July 25, 2022, Mayor Keller announced that the City of Albuquerque intended to close Coronado Park, but he did not provide a date for the closure. … Shockingly, Mayor Keller stated that there was no plan for where the residents of Coronado Park would go after the park was closed.
On August 17, 2022, City employees arrived and began throwing people’s tents and other belongings into garbage trucks and destroying them in the compactor. … Residents tried to remove as many of their possessions as they could, but City employees were throwing items into the garbage trucks quickly and without giving residents the opportunity to collect their things. …
The scene was chaotic. People were crying and attempting to get their belongings away from the City employees. … Some people who managed to get some of their possessions out onto the street had City employees follow them, take their things, and throw them into garbage trucks. …
After everyone was out of the park, the City flooded the park with water, fenced it, and permanently closed it as an encampment. … Because the City lacks adequate shelter space and because even the available shelter space is not a viable option for some people, the people evicted from Coronado Park had nowhere to go. … People have looked for other locations, but the City continues to sweep unhoused people from wherever they land, making it impossible for people to settle anywhere. …
Prior to the closure of Coronado Park, when City employees wanted unhoused people to move from where they had set up camp, the employees generally directed them to the park. … After the closure of the park, City employees have not told unhoused people where they should go when the City forces them to move along. …
When the City closed the park without providing additional beds or available housing, unhoused people living in the park dispersed with their belongings and took shelter where they could: under bridges, in alleys, around cemeteries, and in unused public lots. …
With the onset of winter and dropping temperatures, people sheltering outdoors are in immediate jeopardy of dying of hypothermia.”
Paragraphs 63 to 82, Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief”
ANALYSIS AND COMMENTARY
The civil complaint makes specific allegations regarding Coronado Park and its closure. It alleges how the unhoused themselves took possession of the city owned park and established their own management, rules and regulations of the public park without city authorization. The suit alleges the plaintiffs felt safer at Coronado Park, but its closure left them nowhere to go, which is false. City officials at the time of the park’s closure said there was sufficient space at the Westside Shelter for all park residents but the lawsuit alleges that the city overall lacks enough shelter beds for its entire homeless population.
Plaintiffs make the false claim the city did not provide sufficient notice that city employees were displacing the unhoused from the park for good rather than temporarily closing the park for what had been, until then, routine cleanings. Plaintiffs allege many residents lost their belongings as a result. The truth is at least 4 weeks’ notice and outreach was conducted by the city and the unhoused at the park actually declined any and all city offered services.
CLOSURE OF CORONADO PARK JUSITIFIED AND RIGHT THING TO DO
The closure of Coronado Park was the right thing to do because of what it had become which was a violent, crime invested, ground contaminated park that posed an immediate threat to the unhoused, the surrounding neighborhood and the public.
Over the last 10 years, Coronado Park became a homeless encampment with the city repeatedly cleaning it up only for the homeless to return the next day. City officials said it was costing the city $27,154 every two weeks or $54,308 a month to clean up the park only for the homeless encampment to return. Residents and businesses located near the park complain to the city repeatedly about the city allowing the park to be used as a homeless encampment. At any given time, Coronado Park had 70 to 80 tents crammed into the park with homeless wondering the area.
Criminal activity spiked at Coronado Park over the past 3 years with an extensive history of lawlessness including drug use, violence, murder, rape and homeless suffering from mental health episodes. In 2020, there were 3 homicides at Coronado Park. In 2019, a disabled woman was raped, and in 2018 there was a murder. APD reports that it was dispatched to the park 651 times in 2021 and in 2022 at least 312 dispatches and over 400 calls up and until its closure in August. There have been 16 stabbings at the park in the past 2 years and in 2022 APD seized from the park 4,500 fentanyl pills, more than 5 pounds of methamphetamine, 24 grams of heroin and 29 grams of cocaine. APD also found $10,000 in cash.
The city also cited lack of sanitation posing a health risk to those at Coronado Park and playing a role in the park closure, as well as overall damage to the park. Virtually all the trees in the park were dead and the city had cut them down. An analysis of the city park grounds revealed a level of mold contamination that posed a major, immediate health risk to the unhoused. Drug trafficking at the park had reached a crisis proportions. Albuquerque Police Department announced that they recovered several different firearms at the park, as well as narcotic drugs like fentanyl, methamphetamine and heroin.
According to the complaint, not one of the 8 plaintiff’s allege they were charged or arrested for refusing to leave the park on the day it was closed nor were they jailed. The complaint does not allege any one was arrested or taken to jail on the day Coronado Parke was closed.
On July 25, calling it “the most dangerous place in the state of New Mexico” Albuquerque Mayor Tim Keller held a press conference standing in front of Coronado Park to discuss his reasons for ordering the parks closure and saying it was imperative to close the park.
Keller said this:
“We’re not going to wait any longer. We have all the evidence we need that says that we have to do something different. … It is not going to be something where every question is answered, and every plan is thought out. … We do not have the luxury of a perfect plan. … At this point, if we don’t close the park now, it will never be a park again. … There was unanimous consensus that at a minimum, temporarily, this park has to close. … This is the first step. We welcome everyone to help us problem-solve, but someone has to step up and make a decision … And that’s what people elected me to do.”
City officials said upwards 120 people camped nightly at the park and said homeless occupants were told of other housing options offered by the city. The city also said it would continue to offer services and housing options to those using Coronado Park, including making limited property storage available to those who are interested or in need of it. Chief Administrative Officer Lawrence Rael said the city would start posting flyers of the pending closure and that the city will alert the homeless squatters of available services and other housing options.
THE MAYOR OF CORONADO PARK
In an interesting twist to the closure of the Coronado Park, APD Commander Nick Wheeler said many of the people who lived at the park were “afraid to get services”, and he made the disclosure:
“When I asked about what they were afraid of, they explained to me that they were afraid of the self-proclaimed ‘mayor.’ … The most vulnerable folks, the unhoused, that were living in Coronado Park, every day they were victimized [by this guy.]”
Wheeler was alluding to Joseph Garcia, who called himself “the Mayor of Coronado Park.” Police arrested Garcia in the shooting death of Andrew Aguilar, who was killed inside the park. Wheeler said Aguilar was shot because he didn’t want to pay rent to live in the park. Wheeler made it clear that those living at the park felt safer after Garcia’s arrest.
CITY NOTICE OF CLOSURE AND OUTREACH SURVEY
On July 25 when Keller announced the closure of the park, between 120 and 150 homeless would camp in the park nightly. By Tuesday, August 17 when the park was officially closed and after weeks of what the city has called “intensive outreach” and contact with the homeless campers telling them of the impending closure, the number was down to 30 to 40 and 15 subsequently accepted transportation to a shelter.
Spokeswoman for Family and Community Services Katie Simon said that part of the city’s intensive outreach, the city did more than 110 surveys of those who had been living at Coronado Park. She said that 24 were either given a motel voucher or transported to a shelter, 2 were given tickets to travel housing out of state and 2 were taken to the hospital. More than half of the 94 Coronado Park residents who took a city-funded survey before the closure said they planned to move to another park or street location.
On Wednesday, August 18, Mayor Tim Keller held a press conference and officially closed the park to the public making good the promise he made on June 27 to close the park by the end of August. Keller said this:
“The actions taken today by the City of Albuquerque are made necessary by the threats to public health, safety and the environment that this encampment has created. …
SWEEPING ALLEGATIONS OF CIVIL RIGHTS VIOLATIONS
The complaint makes sweeping claims the city is illegally punishing people for sleeping in public spaces when they have nowhere else to go ignoring the fact that the chronically unhouse refuse shelter made available to them by the city. All 8 of the identified plaintiffs accuse the city of “cruel and unusual punishment” against people who are homeless and prosecuting them “for simply existing on public property with their personal belongings.” The plaintiffs also accuse the city of unlawfully seizing their personal property and denying them due process of law. The suit alleges the plaintiffs felt safer at Coronado Park, but its closure left them nowhere else to go. All these allegations are simply not true. The city spent weeks of outreach and offered placement and assistance.
The law suit makes specific allegations of the “consequences of the city’s polices” and alleges as follows:
“In confiscating unhoused people’s few meager possessions, the City deprives them of the means to survive: The destruction of people’s tents, tarps, blankets, and sleeping bags leaves them completely exposed to the elements. The destruction of people’s medicine, food, and water deprives them of some of the most essential conditions for life. …
The City’s actions in denying unhoused people any stable place to be causes the unhoused to live in an unremitting state of uncertainty and fear. The constant threat of being forced to relocate creates stress and can have significant negative health effects, causing individuals to lose sleep and contributing to worsening mental and physical health conditions.
The combination of being endlessly on the move and living under the threat of having all of one’s worldly possessions seized and destroyed means that unhoused individuals must spend their time and energy transferring their things from place to place and guarding their belongings from seizure, rather than engaging in more productive pursuits such as going to work or securing employment, seeking treatment for mental and physical health conditions, or gaining access to permanent housing.
In addition, the criminalization of homelessness actually promotes the cycle of homelessness by making it harder for people to find housing or to keep jobs. Even misdemeanor convictions can make someone ineligible for subsidized housing, and criminal records are routinely used to exclude applicants from employment and housing. …”
Paragraphs 96 to 99, “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief”.
The lawsuit outlines specific allegation of the city destroying the personal property of the unhoused as follows:
“Although the City has had at least one written policy regarding the collection and safeguarding of personal property when the City removes an unhoused person’s encampment, the City regularly fails to adhere to this policy. … The City regularly forces people to move from their encampment location without notice or without adequate notice, and in doing so, the City regularly takes their personal property and discards it. …
When the City does give notice, it also regularly throws away or destroys the property of unhoused people who were unable to move their belongings within the time frame given by the notice. … The City also regularly discards or destroys personal property that is temporarily unattended, including when unhoused people leave their belongings in order to tend to life sustaining activities, such as working, or obtaining food or water. … The City does not store property collected from unhoused people so that it may later be retrieved, and instead throws away unhoused people’s property indiscriminately.”
Paragraphs 91 to 95, “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief”
CONDEMNATION OF CITY FOR CRIMINALIZING THE STATUS OF BEING UNHOUSED
The lawsuit specifically enumerates New Mexico Statutes and City Ordinances that have been enacted to protect the general public health, safety, and welfare and to protect the public’s peaceful use and enjoyment of property rights. All the laws cited have been on the books for decades and are applicable and are enforced against all citizens and not just the unhoused.
The specific statutes cited in the lawsuit are:
- NMSA 1978, Section 30-14-1 (1995), defining criminal trespass on public and private property.
- NMSA 1978, Section 30-14-4 (1969), defining wrongful use of property used for a public purpose and owned by the state, its subdivisions, and any religious, charitable, educational, or recreational association.
- Albuquerque City Ordinance 12-2-3, defining criminal trespass on public and private property.
- Albuquerque City Ordinance 8-2-7-13, prohibiting the placement of items on a sidewalk so as to restrict its free use by pedestrians.
- Albuquerque City Ordinance 10-1-1-10, prohibiting being in a park at nighttime when it is closed to public use.
- Albuquerque City Ordinance 12-2-7, prohibiting hindering persons passing along any street, sidewalk, or public way.
- Albuquerque City Ordinance 5-8-6, prohibiting camping on open space lands and regional preserves.
- Albuquerque City Ordinance 10-1-1-3, prohibiting the erection of structures in city parks.
The lawsuit does not challenge the constitutionality of any of the state statutes nor city ordinances but makes the very broad allegation that “the City regularly enforces City ordinances and state laws against unhoused people in a manner that criminalizes their status as homeless … [and] … Unhoused people who erect tents or makeshift shelters around the City are routinely cited and/or arrested for violations of [the state laws and city ordinances]. Violations of these statutes and ordinances are punished as misdemeanors.
The lawsuit condemns the city alleging it is criminalizing the status of being unhoused with the following specific allegations:
As an illustration of the City’s ongoing practice of criminalizing the status of being unhoused, in the brief period between August 15, 2022, just before Coronado Park was closed, and October 2, 2022, two-and-a-half months later, the City enforced these provisions over 220 times— either by citation, summons, or arrest. On information and belief, most of these instances involved people who were unhoused. …
Even when the City does not actually cite or arrest unhoused people for violations of these provisions, it enforces them by telling unhoused people that they must move or they will be cited or arrested for their violation. … Because unhoused people have no lawful place to relocate to, they are continually pushed from place to place, and their presence anywhere in Albuquerque with the belongings they need in order to be sheltered—such as tents and tarpaulins—and to survive—such as sleeping bags, clothing, toiletries, medicine, food, and water—is criminalized by the City. …
When private property owners have permitted unhoused people to set up their tents or place their belongings on the owners’ property, the City has cited or threatened to cite such private property owners pursuant to Albuquerque City Ordinance … which prohibits camping in particular zoning districts, and … which imposes a civil fine of up to $500 per day for violations. As a result of these threats and citations, the owners are forced to direct the unhoused people to pick up and leave.
Even when the owners themselves do not ask unhoused people to leave their property, City employees have a practice of ordering unhoused people off of private property where they have the owners’ permission to be.
Paragraphs 83 to 90, “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief”.
COMMENTARY AND ANALYSIS
The unhoused have reached crisis proportions, not because their numbers have increased, but because they have become far more visible and aggressive by illegally camping in parks, on streets, in alleyways and in city open space, whenever they want and refusing city services and shelter.
Simply put, the unhoused are NOT a protected class under Title 7 of the Federal Civil Rights Act and not under the New Mexico Human Rights Act. The unhoused do not have the right to violate the law. The lawsuits sweeping allegations of civil rights violations that are highly inflammatory, emotional and should be challenge by the city in no uncertain terms as being false.
It alleges “the City regularly enforces City ordinances and state laws against unhoused people in a manner that criminalizes their status as homeless possessions, the City deprives them of the means to survive. The destruction of people’s tents, tarps, blankets, and sleeping bags leaves them completely exposed to the elements. The destruction of people’s medicine, food, and water deprives them of some of the most essential conditions for life”. Stolen grocery store baskets brimming with abandoned items found in business dumpsters or residential garbage bins are not “meager, essential necessities for life.”
CITY HAS NO ARREST BUT CITATION POLICY
The complaint alleges that the city is “jailing and fining” the unhouse because of their status of being homeless. This allegation is not true. According to the complaint, not one of the 8 plaintiff’s allege they were charged or arrested for refusing to leave the park on the day it was closed nor were they jailed. The complaint does not allege any one was arrested or taken to jail on the day Coronado Parke was closed. When the City and APD arrest or detain the unhoused, what is involved are illicit drugs, stolen property, stolen or unlicensed hand guns or weaponry, individuals with outstanding arrest warrants or individual’s who pose an immediate threat to the public or themselves.
The Plaintiff’s allege conduct by the city is totally contrary to city policy and procedures and financial commitment the city has made to assist the unhoused. The truth is the city has a “no arrest” policy for non violent homeless crimes such as trespass on public and private property, illegal camping on all city parks and streets, rights of way, alleyways and open space.
When the unhoused are cited for such crimes, they are given a 3-day notice to vacate their encampment along with their belongings. No belongings are seized. Arrests are for felonies such as illicit drugs, stolen property, or unlicensed guns, outstanding arrest warrants or individual’s who poise an immediate threat to the public or themselves because of their actions. When an APD officer arrests or detains the unhoused, the officer can only do so if the circumstances warrant it and makes it necessary and it must be legally justified in writing.
For the last 5 years, the city and APD have had a “no arrest” policy when it comes to nonviolent misdemeanor charges. The “no arrest” policy is the result of a settlement reached in the 1995 federal case of McClendon v. City of Albuquerque that involved overcrowding and racial discrimination at the jail and was filed to reduce overcrowding at the jail.
It was on May 10, 2018 that APD Department Special Order 17-53 was issued as part of the settlement of the 20-plus year McClendon Lawsuit. 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.”
All the criminal trespass and loitering state statutes and city ordinances cited in the Plaintiff’s civil complaint are affected by Special Order 17-53. The APD memo makes it clear that officers may make an arrest only 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.
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 city attorney explained that when it comes to “homeless crimes”, 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 arrests as they deemed appropriate and where the circumstances warrant it.
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. …”
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:
ALBUQUERQUE COMMUNITY SAFETY DEPARTMENT
The city has created a whole new department that relies on outreach and service providing to the unsheltered with the biggest obstacle being the unhoused refusing the services and the shelter being offered.
In fiscal year 2021, the Keller Administration created the Albuquerque Community Safety Department (ACS) with an initial budget of $2.5 million. The ACS consists of social workers and mental health care workers to deal with the unhoused and those suffering from a mental health crisis or drug addiction crisis and they are dispatched in lieu of sworn police or fire emergency medical paramedics.
The fiscal year 2022 budget for ACS was $7.7 million and the fiscal year 2023 approved budget doubles the amount to $15.5 million to continue the service of responding to calls for service and perform outreach for the unhoused, those suffering mental illness episodes, drug and other issues that do not require police or EMT response. The Fiscal Year 2023 approved funding added 74 new positions to make it a 24/7 round-the-clock operation across the city.
ACS is taking hundreds of calls per month, easing the burden on police and paramedics and improving outcomes on behavioral health calls.
CITY’S AND MAYOR’S INITIAL RESPONSE TO LAWSUITE
The city of Albuquerque responded to the allegations on the closure of Coronado Park by issuing the following statement:
“The City and our partner organizations conducted weeks of intensive outreach, service offerings and notice, prior to closing Coronado Park. 72 people were connected to services, including local shelters, motel vouchers, pathways to permanent housing, personal storage, and medical treatment. Coronado Park had become a hub for narcotic usage, trafficking and organized crime. Closing the park was the right thing to do. People living there deserved better, safer alternatives, and connecting people with the help they needed was our priority. The City is investing more money than ever in solutions to reduce chronic homelessness and create affordable housing.”
Mayor Tim Keller for his part said the city tried to take a thoughtful approach to closure of Coronado Park and he said this:
“I think at a high level we did this the best that we could, which is we took action but we took it in a way that was appropriate, effective and compassionate.”
Links to news source material are here
COMMENTARY AND ANALYSIS
The underlying and glaring defect of the civil complaint is that it asserts the unhoused, because of their status and because there is no housing available, have the right to violate the law and illegally camp wherever they want for how long as they want without government interference. The glaring defect of the complaint is the unhoused in general refuse or decline city shelter, housing, services and financial help offered or simply say they are not satisfied with what is being offered by the city such as the case with the Westside Emergency Shelter.
Over the last two years, the city has spent or is spending upwards of $100,000,000 million on homeless services including for shelter operations, meals, transportation, workforce development and dental care. The overwhelming majority of the Coronado Park unhoused declined the services and shelter offered when the park closed. The majority displaced from Coronado Park said in a survey they planned to move to another park or street location.
The Plaintiff’s complaint paints with a broad brush to disparage the city and place it in the worse possible light it can. It fails to fully disclose the facts and circumstances surrounding the closure of Coronado Park. It contains a number of allegations that are misleading as to the actual number of unhoused throughout the city. It fails to disclose the city’s efforts to deal with the unhoused and the city’s financial commitment to help the unhoused. It alleges that the “city’s own policies and practices” have caused “a lack of affordable, safe, stable residences” and have caused the increase in the unhouse numbers and the homeless crisis.
Although the complaint blames economic conditions, unemployment, drug addiction and mental illness as contributing factors to the homeless crisis, it fails to acknowledge that the city has essentially no control over such factors. An overwhelming majority of the factors that are the root causes of homelessness involve mental illness, drug addiction, unemployment, social and economic conditions, all of which are out of the control of the city.
Being unhoused is not a crime. Government, be it federal or local, have a moral obligation to help and assist the unhoused, especially those that are mentally ill or who are drug addicted. However, the unhoused are not above the law. The unhoused are not a protected class under Title 7 of the Federal Civil Rights Act nor the State Human Rights Act. They cannot be allowed to ignore the law, illegally camp wherever they want for as long as they want and as they choose, when they totally reject any and all government housing or shelter assistance.
The City has every right to enforce its laws on behalf of its citizens. The city cannot simply ignore those laws that have the purpose of preserving and protecting the public health, safety and welfare and the rights of all its citizens. Unlawful encampment homeless squatters who have no interest in any offers of shelter, beds, motel vouchers from the city or alternatives to living on the street and who want to camp at city parks, on city streets in alleys and trespass in open space give the city no choice but to take action and force them to move on.
The city needs to seek immediate dismissal of the case in no uncertain terms for the plaintiffs unsubstantiated or questionable claims and for a failure state claim upon which relief can be granted.
The links to quoted news sources materials are here: