On September 21, State District Court Judge Josh Allison entered a Preliminary Injunction against the City of Albuquerque from “enforcing or threatening to enforce” statutes and city ordinance to displace the homeless from public spaces. The Court also enjoined the city from seizing and destroying homeless belongings and mandates a warrant and post deprivation hearings regarding personal belongings seized.
This blog article is an in-depth report on the civil rights lawsuit filed and the court’s rulings with commentary and analysis.
CLOSURE OF CORONADO PARK
On July 25, calling Coronado Park “the most dangerous place in the state of New Mexico” Albuquerque Mayor Tim Keller held a press conference at Coronado Park located at 301 McKnight Ave NW, immediately South and bordered by I-40, to announce the planned closure of Coronado Park. Keller said it was urgent to close the park and 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.”
The park had become a de facto city sanction homeless encampment. City officials said upwards 120 people camped nightly at the park. Over a period of 10 years, Coronado Park became a de facto city sanctioned 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 dramatically spiked at Coronado Park over the 3 years before it was closed 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. Most if not all of the trees in the park were dead and the city had to 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.
On August 17, 2022, the City of Albuquerque closed Coronado Park ordering the eviction and removal of all homeless who had occupied the park. City officials said many people from Coronado Park did accept services prior to closing the park and said this:
“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.”
CLASS ACTION LAWSUITE FILED
On Monday, December 19, 2022 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 filed, 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 Plaintiffs allege they were displaced from Coronado Park when the city closed it and that the city did not provide satisfactory shelter options to them although the city said it did give notice and offered shelter and services, including vouchers. 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.
The link to review the full unedited complaint is here:
https://www.aclu-nm.org/sites/default/files/field_documents/final_complaint_class_action.pdf
GENERAL NATURE OF THE CLAIMS
The lawsuit was filed in State District Court and assigned to Civil Court Presiding Judge Josh Allison. 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 focuses on the city’s decision in August 2022 to close Coronado Park with no plan for relocating the park’s estimated 120 residents and their personal belongings. Plaintiffs alleged that conditions at Albuquerque’s Westside Emergency Housing Center, were unsafe and unlivable and that space is often unavailable.
The lawsuit alleges in part:
[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 … The scene was chaotic … People were crying and attempting to get their belongings away from city employees … Some people who managed to get some of their possessions out onto the street had the city employees follow them, take their things, and throw them into garbage trucks.”
The lawsuit alleges in the months following the closure of Coronado Park, “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.” The suit alleges the constant movement keeps unhoused people from working or other meaningful activities as they focus their energy on moving their property from place to place.
The lawsuit alleges the city routinely violated the constitutional rights of unhoused people by seizing and destroying their personal property without notice, 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 or housing for them.
The City of Albuquerque generally denied the allegations made regarding the Coronado Park closure. The city said it gave proper notice to all occupants days before the pending closure, gave the park occupants an opportunity to remove their personal belongings and tents and offered alternative shelter and services with many declining the shelter and services. The city also said it offered housing vouchers to those being displaced.
The civil suit contends that the city threatened to cite private landowners who offer people places to set up tents and keep their belongings. The complaint alleges the city violated constitutional guarantees that protect people from unlawful search and seizure of their property and violates their rights to due process of law. The lawsuit requests a court orders to stop the city from “seizing the belongings of unhoused individuals without adequate prior notice” and other protections.
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.
The lawsuit seeks 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.
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. The lawsuit does not challenge the constitutionality of any of the state statutes nor city ordinances.
The lawsuit 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.”
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.
All the above laws are classified as “non-violent crimes” and are misdemeanors. The filing of criminal charges by law enforcement are discretionary when the crime occurs in their presence. Once the charges are filed, the cases are referred to as “police officer prosecutions”. Albuquerque Police and Bernalillo County Sherriff Deputies must prosecute the cases on their own in Metropolitan Court without a prosecutor presenting the evidence and perhaps examining witnesses.
APD’S NO ARREST POLICY
The civil complaint alleges that the city is “jailing and fining” the unhouse because of their status of being homeless. This allegation is simply FALSE. Not one of the 8 plaintiffs who filed the complaint were charged or arrested for refusing to leave Coronado 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 Park was closed.
When the City and APD arrest or detain the unhoused, it is for felonies and not misdemeanors. Felony arrests of the homeless are made on illicit drugs, stolen property, stolen or unlicensed hand guns or weaponry, individuals with outstanding arrest warrants or individuals who pose an immediate threat to the public or themselves.
For the last 5 years, the city and APD have had a “no arrest” policy when it comes to nonviolent misdemeanor charges such as trespass on public and private property, illegal camping on all city parks and streets, rights of way, alleyways and open space. The homeless are given a 3-day notice to vacate their encampment along with their belongings. 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. McClendon was filed to reduce overcrowding at the jail and it had absolutely nothing to do with the homeless.
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.
During the June 22, 2022 meeting of the Albuquerque City Council, 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 News 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 at the time in 2022 there had 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:
https://www.kob.com/new-mexico/unm-law-professor-weighs-in-on-mayors-claims-about-homelessness/
STATE DISTRICT COURT ENJOINS CITY
On March 31, 2023, the Plaintiff’s file an “Emergency Motion for a Preliminary Injunction” with a separate “Memorandum In Support” of the motion attaching affidavits. On April 24, 2023, the City filed its Response to the Motion with a brief and affidavits. On May 12, 2023 the Plaintiffs filed a Reply. On September 8, 2023, Judge Allison held a hearing on the motion.
On September 21, Judge Allison filed his “Memorandum Opinion And Oder Granting In Part Plaintiffs Motion for A Preliminary Injunction”.
FINDINGS OF FACT
Judge Allison made the following “Findings of Fact” in his order enjoining the city:
There are more homeless people living in the City of Albuquerque … than there are available shelter beds for sleeping at night. A large number of homeless people in Albuquerque simply have no place to be at night except outside.
There are inadequate and insufficient indoor spaces for homeless people living in Albuquerque to be during the day. A large number of homeless people in Albuquerque simply have no place to be during the day except outside.
Everyone has to be someplace.
For most people who experience homelessness, it is not a static condition. Many people living in Albuquerque, including some of the named plaintiffs in this lawsuit, have experienced homelessness off-and-on for periods of time over a number of years.
The City has enforced, and has threatened to enforce, various ordinances and statutes criminalizing homeless persons’ mere presence on outdoor public property and the presence of their belongings on outdoor public property when there are inadequate indoor spaces for homeless people living Albuquerque to be. The City has threatened punishment under these laws to force homeless people to move from one outdoor public space to another.
The City’s improper enforcement of these statutes and ordinances often causes irreparable harm to the homeless people against whom they enforced. For example, arrests for these violations regularly result in missed court appearances and the resulting issuance of bench warrants for the homeless person’s arrest for failure to appear. Also, a homeless person who is forced to relocate from one outdoor public space to another oftentimes loses personal belongings that are vital to that person’s health and safety as a result of that forced relocation.
The City has seized and destroyed the property of homeless people, including property that homeless people need to live (e.g., tents, tarps, blankets, medication, identification, clothes, food, benefit cards, pets, bicycles, etc.) without a valid search warrant, without adequate pre-deprivation notice, or without an adequate opportunity to be heard prior to or after the seizure and before the destruction of the property. Many of these constitutionally inadequate seizures of the property of homeless people took place in 2023.
The City’s seizure and destruction of the property of homeless people often causes irreparable harm to the homeless people whose property is unlawfully seized and unlawfully destroyed. Oftentimes, these seizures result in the destruction of property that the homeless person needs to live: shelter, medication, clothing, blankets, et
CONCLUSIONS OF LAW
Judge Allison made the following “Conclusions of Law” as applying to the case to grant injunctive relief:
EDITORS NOTE: Case law citations have been deleted for brevity and with headlines added for clarification.
CRUEL AND UNUSUAL PUNISHMENT FOR OCCUPYING OUTDOOR PUBLIC SPACES RULINGS
“[T]he Eighth Amendment [to the United States Constitution] prohibits the [city] from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.” …
While the City is not constitutionally obligated to provide housing for homeless people, it cannot punish the mere presence of homeless people and their belongings in outdoor public spaces when there are inadequate indoor spaces for them to be.
… [T]he Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.
… [P]unishing a homeless person’s innocent behavior of merely existing in outdoor public spaces when there is insufficient shelter within the City of Albuquerque violates the Eighth Amendment’s prohibition on cruel and unusual punishment.
For identical reasons, the City cannot threaten to arrest, cite, or otherwise punish unhoused people for their mere presence in outdoor public spaces in order to forcibly move them from one outdoor public place to another. Those threats of prosecution also criminalize otherwise innocent behavior.
As long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively punish them for something for which they may not be convicted under the eighth amendment—sleeping, eating and other innocent conduct
The City’s enforcement, and its threats of enforcement, of various ordinances and statutes criminalizing homeless persons’ mere presence on outdoor public property and the presence of their belongings on outdoor public property, when there are inadequate indoor spaces for homeless people living in Albuquerque to be, violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
UNLAWFUL SEIZURE RULINGS
Judge Allison made the following “unlawful seizure” rulings:
Article II, Section 10 of the New Mexico Constitution provides that “[t]he people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures . . . .”
This provision “guarantee[s] that people will not be subjected to unreasonable searches and seizures.”
Thus, a “seizure” occurs when the government deprives a person of (i.e., takes) their property. … However, a seizure also occurs when the government “meaningfully interferes” with a person’s possession of their property; a seizure may be nothing more than a “brief detention of [the person’s] personal effects.”
A person’s property may be seized even when the property is in a public space. …
This is so because “a reasonable expectation of privacy [e.g., a desire to keep the property private] is not required to trigger Fourth Amendment protection against seizures.” … Rather, both the State and Federal Constitutions protect against “unreasonable interferences” with a person’s possession of, and interest in, their property, regardless of whether the property was intended to be kept private.
Simply put, the government cannot seize a person’s property just because that person is in a public space with their property. More is required for a seizure to be lawful.
The ultimate test to determine the constitutionality of any seizure and/or destruction of homeless persons’ unabandoned property is one of reasonableness. …
[I]t is simply not reasonable for the City to seize the property of homeless people for the sole reason that they are living in outdoor public spaces, and it is even less reasonable that the City would not provide a process for those homeless persons to reclaim their property once it had been seized.
The City’s public interest is to maintain safe, clean, and healthy outdoor spaces. That much is clear, and that is a valid interest, to be sure. Yet, the interest of homeless people is to have what they need to survive and live in those outdoor spaces.
On balance, and without any additional reasons other than the homeless person is living in an outdoor public space when there are inadequate indoor spaces for them to be, the City’s interest is insufficient to allow for the seizure of homeless persons’ property just because they are occupying public spaces.
It is … unreasonable for the City to permanently deprive homeless people of their property solely because they are living in outdoor public spaces, without allowing them the opportunity reclaim that property after it has been seized.
The City’s primary interest supporting the destruction of homeless persons’ property is the cost and effort it must expend in securing, identifying, transporting, storing, and providing a process for returning that property to the homeless person to whom it belongs.
Again, the homeless persons’ interest is to be free from the destruction of their property, much of which is vital to their health and safety, for the sole reason that they are living in outdoor public spaces when they have no other place to be.
On balance, the City’s interests are again insufficient. … It is … unreasonable … for the City to destroy the property of unhoused people that they need to survive.
The Court … rejects the City’s argument that any process to provide all homeless persons a reasonable opportunity to reclaim their property that has been seized by the City is too expensive and too burdensome.
The reasonableness of the seizure also touches upon the issue of the abandonment of homeless persons’ property: namely, the question of when any person, including a homeless person, has abandoned their property in a public place such that the City is justified in taking it (that is, seizing it) and throwing it away without notice and an opportunity to be heard.
Again, it is simply not reasonable for the City to conclude that a person’s established “camp,” and the belongings in and around the camp, have been abandoned because the person is not present or because the person has not moved their belongings to another public place as directed by the City.
Another important consideration in the analysis of the reasonableness of the City’s actions in seizing and destroying homeless persons’ property is whether the government has unreasonably interfered with a person’s possession of the person’s property without due process of law. …
The facts … in the record demonstrate the City has seized and destroyed homeless persons’ property without adequate legal process. …
[T]he Court concludes that City’s actions in taking and destroying homeless persons’ property are not consistent with the City’s obligation to provide each person whose property is taken adequate notice of the intended seizure (including the legal justification supporting the seizure), a predeprivation merits hearing on that issue, and then a post-deprivation opportunity to reclaim that property.
PROCEDURAL DUE PROCESS RULINGS
Judge Allison made the following procedural due process rulings:
[T]he City must afford homeless people before seizing and destroying their property. Article II, Section 18 of the New Mexico Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law[.]”
With respect to administrative proceedings such as those conducted by the City, the Court determines what process is due under Article II, Section 18 by balancing three factors:
(1) identifying what the person will be deprived of by the government’s actions (e.g., what property interest or property right will be taken);
(2) assessing the risk that the person will be improperly deprived of that property interest if the government does not provide more process or more procedural safeguards; and
(3) weighing the government’s interests (financial, administrative, etc.) in avoiding the additional process or procedure, e.g., are those additional safeguards too burdensome, too expensive, etc.?
Generally, the government must provide notice and an opportunity to be meaningfully heard before seizing a person’s property.
Indeed, “[i]f the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.”
The evidence in the record demonstrates that the City does not have a uniform and equally-applicable process to provide homeless people meaningful notice that their property will be seized and destroyed.
At best, the evidence shows that the City has, at times, provided at least some process, but at other times it has provided essentially no process at all. This is especially true with respect to the destruction of homeless persons’ personal property.
In sum, homeless people, just like people with homes, have a right against unreasonable seizures of their unabandoned property, even if that property is left in outdoor public spaces. …
[T] the Court concludes that even if the City had complied with the constitutional prohibition against unreasonable seizures (and the evidence shows it has not), principles of constitutional due process require the City “to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return.” Id. The City simply is not doing this for some number of homeless people living in Albuquerque. Thus, injunctive relief is appropriate.
CITY’S ENCAMPMENT POLICY
Judge Allison made specific rulings regarding the city’s encampment policy entitled “Policy for Responding to Encampments on Public Property” and the city’s argument that it provides sufficient due process to the homeless to keep and/or reclaim their property. The encampment policy includes notice of at least 72 hours prior to the closure of any “encampment” by the City, as well as notice of where the “Personal Property” and “Special Personal Property” may be stored and claimed.
Judge Allison ruled on the encampment policy as follows:
“The Encampment Policy allows for the City to destroy at least some homeless persons’ items of personal property when the City, in its sole discretion, does not have the capacity to store them. …The evidence … shows that the City has in fact destroyed homeless persons’ property without storing it as the Encampment Policy provides. Thus, the Encampment Policy may provide no actual or constructive notice to a homeless person that the person’s property will be destroyed, and it most certainly provides no opportunity for a homeless person to reclaim property that the City already threw away.
“Although the Encampment Policy applies by its own terms to a singular tent or other structure used as a dwelling on outdoor public property, the evidence in the record shows that the City has not applied the notice and storage provisions of Encampment Policy in many situations involving the relocation of just a few homeless people from one outdoor public place to another. The Encampment Policy is not being applied consistently and is therefore insufficient as a matter of law.”
“The City points to the sheer size and volume of some of the property of homeless people in support of its argument that it simply cannot store their belongings: many shopping carts full of “stuff,” stacks of wooden pallets, a make-shift hot tub filled with water at Coronado Park, bicycle parts, and the like. This may be true, but the City points to no legal authority that allows it to destroy a person’s property without due process of law because of its size.”
PROCEDURAL DUE PROCESS THAT MUST BE AFFORDED TO HOMELESS
Judge Allison ruled on the due process that the City must afford homeless people before seizing and destroying their property pursuant to Article II, Section 18 of the New Mexico Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law[.]”
Judge Allison ruled as follows:
With respect to administrative proceedings such as those conducted by the City, the Court determines what process is due under Article II, Section 18 by balancing three factors:
(1) identifying what the person will be deprived of by the government’s actions (e.g., what property interest or property right will be taken);
(2) assessing the risk that the person will be improperly deprived of that property interest if the government does not provide more process or more procedural safeguards; and
(3) weighing the government’s interests (financial, administrative, etc.) in avoiding the additional process or procedure,
Generally, the government must provide notice and an opportunity to be meaningfully heard before seizing a person’s property.
The evidence in the record demonstrates that the City does not have a uniform and equally-applicable process to provide homeless people meaningful notice that their property will be seized and destroyed. At best, the evidence shows that the City has, at times, provided at least some process, but at other times it has provided essentially no process at all. This is especially true with respect to the destruction of homeless persons’ personal property.
INJUNCTION ORDERS ISSUED AGAINST CITY
Judge Allison issued the follow injunction orders against the City:
“1. [T]he City of Albuquerque … is hereby enjoined from enforcing, or threatening to enforce as a means of seeking compliance with, any statutes and ordinances against involuntarily unhoused people that prohibit a person’s presence in, or the presence of a person’s belongings on, outdoor, public property.
[T]he City may continue to enforce statutes and ordinances that would prohibit a homeless person from:
(a) obstructing sidewalks (including ramps, stairways, and stairwells), driveways, medians, alleyways, public rights of way (including walkways, streets, roads, trails and other paths, bike lanes, and bike paths), parking lots, and other public roadways and walkways, when such obstructions pose an immediate threat to the safety of any person and the City documents and makes a written record of its findings of the immediate threat to the safety of any person; and
(b) occupying any property of any public school.
2. The City is further enjoined from seizing any unabandoned property belonging to a homeless person that is not contraband or is otherwise unlawful to possess without:
(a) having first received a validly executed warrant authorizing the seizure, or
(b) satisfying a legally-recognized exception to the warrant requirement such that the seizure is lawful or
(c) providing written notice to the homeless person to whom the property belongs that the specific property will be seized and providing a pre-deprivation hearing on the merits of the proposed seizure at least 72 hours prior to the proposed seizure.
3. The City is further enjoined from destroying any unabandoned property belonging to a homeless person without first adhering to the seizure provisions set out above … in the decretal provisions of this Order and without providing a post-deprivation notice and hearing regarding the property’s destruction, which includes a reasonable opportunity to reclaim the property.
4. This preliminary injunction does not enjoin the City from enforcing any statutes, ordinances, or other laws affecting private property or the rights of others to enforce their rights with respect to private property.
5. This preliminary injunction does not enjoin the City from enforcing any statutes or ordinances concerning any other criminal acts of unhoused people (meaning those apart from prohibiting a person’s presence in, or the presence of a person’s belongings on, outdoor public property). If, for example, a police officer has reasonable suspicion of criminal activity taking place by an unhoused person on outdoor public property (e.g., an outdoor fire that is prohibited by law, the destruction of public property, the possession of stolen property, or the unlawful use of a weapon), that police officer is not enjoined from taking lawful action to investigate those circumstances and to enforce those other criminal statutes or ordinances.”
6. This Preliminary Injunction is hereby STAYED through midnight on October 31, 2023 and will become effective automatically at 12:01 a.m. on November 1, 2023.
… .”
TIME TABLE
Starting November 1, if the city of Albuquerque wants to take or destroy the property of a homeless person living in a public space, it must secure a warrant. In six weeks, the city will also be prohibited from threatening homeless people with legal action if they are occupying public property unless they are unsafely blocking a sidewalk or other public right of way or are on public school grounds. The injunction will remain in effect until a trial is conducted and a trial date is yet to be set.
REACTION TO RULING
Laura Schauer Ives, one of the attorneys representing a group of homeless who sued the city, had this to say:
“It’s an important victory, because it stays in place until there’s a trial, assuming the City of Albuquerque doesn’t change its policies and practices, which hopefully they will. …It’s cruel to prey upon people who are the most vulnerable, it’s cruel to do so when they actually don’t have any other option, when we just don’t have enough housing. … It is now in the city’s hands. … The city can provide places for unhoused people to be … when there’s not enough places to live, the consequence is that there are going to be unhoused people.”
The City Attorney’s Office announced the city intends to challenge the decision and responded to the injunction with the following statement:
“This dangerous ruling would severely limit our ability to keep our city clean and safe, while getting people connected to the help they need. We intend to challenge the decision and protect our ability to enforce necessary public safety measures.”
COMMENTARY AND ANALYSIS
The closure of Coronado Park was absolutely necessary to protect the public’s health, safety and welfare. The city had no choice but to close the park. Coronado Park had become and ongoing crisis, a public nuisance and a magnet for crime because of homeless conduct and those who squatted and occupied the park. Criminal activity was rampant at Coronado Park for over the 3 years before it was closed. The park had an extensive history of lawlessness including violence, murder, rape, drug use and homeless suffering from mental health episodes.
COURT USURPS AND INTERFERS WITH CITY’S LEGITIMATE LAW ENFORCEMENT AUTHORITY
District Judge Josh Allison’s injunction and ruling that the city “cannot threaten to arrest, cite, or otherwise punish unhoused people for their mere presence in outdoor public spaces in order to forcibly move them from one outdoor public place to another” is a clear usurpation and interference with the city’s legitimate law enforcement authority. The injunctions usurps and interferes with the city’s right to take necessary action to protect the public health, safety and welfare with the enforcement of public safety laws, both state laws and city ordinances.
The courts rulings and findings simply do not make sense on many levels and needs extensive clarification. The Preliminary Injunction is confusing and contradictory. Judge Allison enjoins the city “from enforcing, or threatening to enforce as a means of seeking compliance with, any statutes and ordinances against involuntarily unhoused people that prohibit a person’s presence in, or the presence of a person’s belongings on, outdoor, public property”.
The order does not make it clear that “outdoor, public place” is defined as vacant, open space land owned by the city, county, state or federal government nor if it includes outdoor open space areas of government owned buildings such as city hall and the various courts. As examples, the Second Judicial Court had to fence off the outside of the District Court House entry way to stop the homeless from encamping there at night and the city repeatedly has to take action to have the homeless removed from outside of City Hall and Plaza Del Sol.
The court order provides the city is not enjoined from “enforcing any statutes, ordinances, or other laws affecting private property or the rights of others”. The city has property rights that are equal to private property rights when it comes to real property it owns and manages including buildings, as does the county and state, yet Judge Allison makes a distinction and gives preference in enforcement of private real property rights. The court also ruled that the city is not enjoined from enforcing any statutes or ordinances concerning any other criminal acts of the unhoused people, but that is very limited because APD has a no arrest policy when it comes to the misdemeanor crimes of trespass and camping on public property.
The Albuquerque Police Department is currently under a court approved settlement in the federal lawsuit of McClendon v. City of Albuquerque wherein the city has agreed not to make arrests for nonviolent crimes, such as trespass on public and private property, illegal camping on all city parks and streets, rights of way, alleyways and open space. As a result, APD is relegated to merely encouraging or telling the homeless to move on and camp elsewhere falling short of making an arrest and taking them to jail. Judge Allison is now enjoining such conduct.
The glaring defect of the injunctions issued by Judge Allison against the city is that the Court essentially ruled that the unhoused, because of their status and because there is insufficient housing available and offered by the city, they have the right to violate the law and illegally camp wherever they want for how long as they want without government interference or threat of arrest. While Judge Allison says “the City is not constitutionally obligated to provide housing for homeless people” he rules the city cannot “threaten” to enforce the laws against the homeless until the city provides sufficient satisfactory shelter and housing to them implying the city is not doing much of anything.
SHELTER SPACE IS AVAILABLE
The lawsuit when filed alleges “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.” Since the filing, the City has expended upwards of $2 million to upgrade and make repairs to the shelter, it has passed city inspection, and it is habitable with social and support services offered. However, many homeless simply refuse to go to the shelter and it is not fully occupied.
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 when fully operational 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.
CITY’S EMCAMPMENT POLICY AND DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS
Although Judge Allison found that the City was not consistently following it’s “Encampment Policy”, he did not declare the policy nor the administrative process the city uses as violating due process of law. What he did do is add the additional requirement of a warrant. Judge Allison failed to outline if he wanted the city to rely on the court for post disposition orders and failed to outline how and where he wants unhoused personal property segregated and for how long and when the city can dispose of the property if it is not reclaimed.
Judge Allison found “The City’s public interest is to maintain safe, clean, and healthy outdoor spaces. That much is clear, and that is a valid interest, to be sure. Yet, the interest of homeless people is to have what they need to survive and live in those outdoor spaces.” Judge Alison ruled “It is … unreasonable … for the City to destroy the property of unhoused people that they need to survive. … The City points to the sheer size and volume of some of the property of homeless people in support of its argument that it simply cannot store their belongings: many shopping carts full of “stuff,” stacks of wooden pallets, a make-shift hot tub filled with water at Coronado Park, bicycle parts, and the like. This may be true, but the City points to no legal authority that allows it to destroy a person’s property without due process of law because of its size.”
Judge Allison failed to limit his order to prohibit the city from destroying personal property the homeless need to survive in outdoor space. He requires the city to preserve and store virtually all that is seized and simply proclaims it is unreasonable to dispose of the property saying the city did not cite legal authority not recognizing that the issue may be a matter of first impression. No mention is made of allowing the city to secure “consent to dispose” of the personal property from the homeless.
CITY COMMITMENT TO HOMELESS
Judge Allison failed with his finding and orders to address the problem of the unhoused who refuse or decline city shelter, housing, services and financial help offered or the unhoused who simply say they do not want to go to a shelter or those who say they are not satisfied with what is being offered by the city such as the case with the Westside Emergency Shelter. A very large percentage of the Coronado Park unhoused declined the services and shelter offered when the park closed. Many of those displaced from Coronado Park said in a survey they planned to move to another park or street location.
The Courts findings paints with a very broad brush the actual number of homeless and fails to make any findings about the facts and circumstances surrounding the closure of Coronado Park, which was the catalyst for the civil complaint. The court makes a number of broad, unsubstantiated findings as to the actual number of unhoused throughout the city. The courts findings omit the city’s efforts to deal with the unhoused and the city’s financial commitment to help the unhoused.
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. In the 2023-2024 budget, the City Council added $48 million to address housing and homelessness issues in Albuquerque. The city expends upwards of $8 million a year to operates 2 homeless shelter. Over two years the city will be spending upwards of $100 Million to help the homeless or near homeless.
COUNTY SHERIFF AND DISTRICT ATTORNEY SHOULD STEP IN
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’s 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 civil complaint and the injunction orders apply only to the city of Albuquerque. Consequently, what should occur is that the Bernalillo County Sheriff’s Office should be called upon to start arresting the homeless for misdemeanors that APD cannot nor will not make arrests on. Bernalillo County District Attorney Sam Bregman recently announced his office will be prosecuting misdemeanor shopping cases. Bregman should announce the same for the crimes of illegal camping, criminal trespassing and loitering.
FINAL COMMENTARY
The City has the obligation and every right to enforce its criminal laws on behalf of its citizens, whether it be felony or misdemeanor. 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 injunction now prohibits the city from instructing the homeless to move on under threat of an arrest that will not happen because of a federal jail overcrowding case settlement that has nothing to do with the homeless.
The City has said it will appeal and it should appeal the court’s injunction without hesitation and further seek the outright dismissal of the case.
Links to quoted news sources are here:
The links to another relevant blog article analyzing the lawsuit file is here: