Bernalillo County District Attorney Sam Bregman, the city of Rio Rancho and lawyers representing unhoused Plaintiffs have filed briefs with the New Mexico Supreme Court in a pending lawsuit which seeks class action status on behalf of the homeless. The lawsuit stems from the August 18, 2022 city closure of Coronado Park and the eviction of upwards of 150 homeless.
The lawsuit alleges in part that the city of Albuquerque is denying the unhoused rights to due process of law, and that their right to be free from cruel and unusual punishment is being violated. The lawsuit is a major test before the New Mexico Supreme Court of all municipalities authority to enforce municipal and state of public camping laws, trespassing laws and vagrancy laws against the homeless.
The City of Albuquerque has filed a Petition for a “Writ of Superintending Control” against District Judge Joshua Allison, the judge assigned to the case, who ruled a US Supreme Court case allowing cities to enforce criminal laws against the homeless was faulty and did not apply to the city. Judge Allison has also filed a responsive pleading to the “Writ of Superintending Control”.
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EDITORS NOTE: The postscript to this article contains information on the Coronado Park closure, summary of the class action lawsuit and a link to the US Supreme Court case of GRANTS PASS V. JOHNSON.
DISTRICT COURT RULING
On March 18, 2024, District Court Judge Joshua Allison ruled the United States Supreme Court case of GRANTS PASS V. JOHNSON that gave cities the green light to enforce criminal laws against the homeless for living and sleeping outside on public property did not apply to the City of Albuquerque. Judge Joshua Allison specifically found the high court ruling was “flawed”. Judge Allison concluded and ruled the New Mexico Constitution provides greater protections against such cruel and unusual punishment than the U.S. Supreme Court considered in its decision.
In his March 18 ruling, Allison wrote that the plaintiffs are challenging what they say are the city of Albuquerque’s unconstitutional practices of relocating them, and involuntarily unhoused people like them, from “place to place, taking and destroying their belongings in the process.”
Plaintiffs in their class action lawsuit against the City allege that the city intentionally deprived them, as involuntarily unhoused people, of the belongings they need to survive. In his March 18 ruling, Judge Allison wrote the allegations, if proven during the course of the case, would be “sufficient to demonstrate the City’s deliberate indifference to the precarious existence of homeless individuals when they live outside.”
Judge Allison wrote:
“Accepting Plaintiff’s allegations as true, as the Court must at this stage in the proceedings, the City’s alleged actions of destroying the means that homeless people need to survive outside, actions that are taken in the course of seeking to enforce criminal laws against homeless people, shock the conscience of the Court.”
PETITION FOR “WRIT OF SUPERINTENDING CONTROL”
On July 11, the City of Albuquerque filed with the New Mexico Supreme Court a “Petition for Writ of Superintending Control” against Judge Joshua Allison requesting the court to reverse Allison’s ruling to prevent the “proliferation” of homeless encampments within the city and other municipalities and towns in New Mexico. A city spokesperson said this in a statement:
“We filed this appeal because we dispute the judge’s ruling. This is the only judge in the country to make this ruling, and we are the only city in America having to live under these rules. … The city will keep doing everything in its power to get people the support they need and to manage illegal encampments promptly. We will continue sending staff to conduct welfare checks at encampments and offer support services.”
John Anderson, a Santa Fe lawyer who is a former United State Attorney for New Mexico, is defending the city of Albuquerque in the class action lawsuit, states this in the petition for the “Writ of Superintending Control”:
“[The issues involving the prevention of illegal encampments have] serious public safety implications and, the district court’s decision flouts the U.S. Supreme Court’s recent guidance. … The City needs [ the New Mexico Supreme Courts] … direction in weighing how to enforce its laws … to resolve legal questions of statewide importance. If allowed to stand, the district court’s decision will leave the City of Albuquerque and cities and towns throughout New Mexico, with no means to prevent the proliferation of encampments within their borders.”
In its “Petition for Superintending Control” filed with the New Mexico Supreme Court, the city of Albuquerque contends that nearly two years ago, “a large group of cities and states put out a clear and forceful call” by asking the U.S. Supreme Court “to relieve them of the burdens imposed by a misguided interpretation of the Eighth Amendment by the Ninth Circuit Court of Appeals, which left cities unable to clear encampments from, or otherwise maintain order in, public property.”
The “Petition for Superintending Control” asserts in part:
“[Judge Allison’s] novel and unprecedented standard cannot stand. The City simply does not know, at this time, when or how it can enforce its laws.”
ARGUMENTS MADE BY THE PARTIES
According to the cities of Albuquerque and Rio Rancho, and Bernalillo County District Attorney Sam Bregman, the stakes involve “serious public safety implications” involving the ability of New Mexico municipalities to protect public property and public welfare. The city of Albuquerque is asking the state Supreme Court to reverse Allison’s ruling in its filing for a “Petition for Writ of Superintending Control” against Judge Joshua Allison.
Attorneys for eight plaintiffs in the case who are involuntarily homeless and live outdoors say the city’s attempt to regulate homelessness is violating their civil rights. Those attorneys asked the Supreme Court to deny the City of Albuquerque’s request for reversal of Judge Allison’s ruling.
DISTRICT JUDGE JOSHUA RESPONDS
District Judge Joshua Allison filed a response to the writ and said he wanted to clarify that his ruling was only denying a motion to dismiss filed by the city, despite the city’s contention that he had adopted a novel and unprecedented legal standard. Allison wrote in his response:
“The legal basis for those constitutional claims survived a motion to dismiss. It did not adopt a specific legal standard.” He added that the suggestion he would grant the relief the plaintiffs seek in the future is “premature.”
DISTRICT ATTORNEY SAM BREGMAN’S BRIEFING
DA Bregman and city officials believe that Judge Allison’s ruling will make it more difficult for Albuquerque and other New Mexico cities to manage public health and safety concerns tied to growing number of encampments. Bregman said this in an August 12 press release:
“This is about giving cities the ability to maintain safe and accessible public spaces while still respecting individual rights. … Many of our crime victims are people who are living on the streets. We not only want to protect them, but also the public and businesses.”
District Attorney Sam Bregman’s brief filed with the NM Supreme Court contains the following conclusion:
“The [March 18, 2025 ruling of District Judge Josh Allison] inexorably embraces a striking usurpation of policymaking authority from the City of Albuquerque in that it accepts the validity of a legal landscape in which City must surrender the vast majority of its outdoor public spaces to occupation by unhoused individuals – and the teachings of Grants Pass make clear that the consequences for public health and safety will be devastating. The Petition and the Amicus briefs from the Grants Pass litigation collectively and consistently explain the disastrous impact that such a regime had on the ability of localities to implement policy-based solutions to address problems associated with homelessness and homeless encampments in public spaces.
The Grants Pass filings also describe a resulting proliferation of homeless encampments on public lands as authorities became powerless to disperse them, and a resulting down spiral into jaw-dropping, heart-wrenching conditions within the encampments and the areas surrounding them. The localities reported being hamstrung in their ability to address conditions associated with the growing encampments such as: (1) drug overdoses (from fentanyl, meth, and heroin, among other drugs); (2) deaths from hypothermia and excessive heat; (3) a high volume of calls for medical help; (4) increasingly volatile behavior; (5) murders; (6) sexual assaults; (7) subjugation to sex work and physical abuse; (8) fights, assaults, thefts, and armed robberies; (9) fires; (10) filthy and unsanitary living conditions, including massive amounts of debris such as needles and human excrement polluting the environment; (11) heightened risks of disease transmission, and a resurgence of “medieval” diseases such as typhus and tuberculosis; and (12) for areas surrounding the encampments – increased crime, the flight of businesses, decreasing property values, and an overall loss of habitability. …
The City of Albuquerque already faces many challenges in addressing issues surrounding homelessness. … The lessons of Grants Pass teach that an approach such as what the district court has adopted in this case will ultimately worsen [Albuquerque’s] … ability to implement policy based choices to address homelessness and to regulate the use of public spaces.
Although crime affects everyone whether housed or unhoused, [the Bernalillo County District Attorney] is painfully aware that the homeless that the district court seeks to protect with its ruling are a subset of the population that is at least as vulnerable as any other to criminal victimization. The unhoused and housed alike must not be subjected to additional criminal victimization due to the adverse effect the district court’s ruling will have on public safety.”
CITY OF RIO RANCHO
The city of Rio Rancho’s brief states that as the third-largest municipality in New Mexico, Rio Rancho will be “significantly impacted by the recent decision of the Second Judicial District Court.”
The City of Rio Rancho states in its brief:
[As it presently stands, the ruling] inserts confusion into how (Rio Rancho) can legally address the health, wealth, and safety of its citizens when dealing with the difficult circumstances surrounding involuntarily unhoused persons and their use of public places. … The potential for different district courts to reach different decisions relating to the application of Grants Pass creates uncertainty and will result in the ineffective use of public bodies’ limited resources across New Mexico.”
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COMMENTARY AND ANALYSIS
The City was 100% correct in seeking a Writ of Superintendent Control against Judge Allison to compel him to apply the principals announced in the Supreme Court case of Grants Pass vs. Johnson. It is very difficult to understand or even try to comprehend Judge Joshua Allison’s ruling that the Supreme Court case of Grants Pass v. Johnson does not apply to the class action lawsuit filed against the city given the fact that the case is essentially identical to the issues the US Supreme Court decided in GRANTS PASS V. JOHNSON. Judge Allison essentially bends over backwards to declare that the Supreme Court Ruling is “flawed” in order not to apply it to the case brought against the city and to prevent the city from enforcing state law and municipal ordinances.
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. Judge Allison usurped and interfered with the city’s right to take necessary action to protect public health, safety and welfare with the enforcement of public safety laws, both state laws and city ordinances.
Judge Allison’s rulings and findings simply do not make sense on many levels and need extensive clarification. The Preliminary Injunction he issued is confusing and contradictory. Judge Allison’s orders were sweeping in nature and enjoined 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 did not make it clear that “outdoor, public place” includes 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. 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 government buildings such as city hall and court houses, 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 enjoined 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 of being unhoused 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, which is completely false.
FINAL COMMENTARY
District Attorney Sam Bregman is commended for intervening in the case. All municipalities, and for that matter District Attorneys, have the obligation and every right to enforce the criminal laws on behalf of its citizens, whether it be felony or misdemeanor. No municipality and no District Attorney should be forced to 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 or for that matter make arrests for other crimes identified other than vagrancy crimes.
With the filing of the Writ of Superintendent Control, the New Mexico Supreme Court is now forced to address head on the issue if the banning of outdoor camping by the unhoused is “cruel and unusual punishment” and to what extent all municipalities can enforce state and municipal laws.
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POSTSCRIPT
CORONANDO PARK CLOSURE
It was on August 18, 2022, the City of Albuquerque closed Coronado Park because it had become a de facto city sanctioned homeless encampment with the city evicting up to 100 unhoused who camped there nightly. The city cited numerous reasons for closure of the park including lack of sanitation posing a severe health risks, overall damage to the park and extensive drug trafficking and violent crime, including rapes and murders at the park having reached crisis proportions. The city was spending upwards of $50,000 a month to clean up Coronado Park.
The city park had an extensive history lawlessness including drug use, violence, murder, rape and mental health issues. In 2020, there were 3 homicides at Coronado Park. In 2019, a disabled woman was raped, and in 2018 there was a murder. APD reported that it was dispatched to the park 651 times in 2021 and 312 times in 2022. There had been 16 stabbings at the park in 2 years. In 2023, APD had 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. All the seized drugs were tied to a single bust that occurred at a nearby motel, not the park, though an APD spokeswoman said the suspect was “mainly doing all their distributions [at the park].”
HOMELESS CLASS ACTION LAWSUITE FOR VIOLATIONS OF CIVIL RIGHTS
On 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 to be homeless. All 8, along with upwards of 100 unhoused, were evicted by the city from Coronado Park. Not one of the 8 plaintiffs allege they were charged nor arrested for refusing to leave Coronado Park on the day it was closed nor were they jailed. The lawsuit contends it is unconstitutional to punish or threaten to punish unhoused people for the “crime of being in an outdoor public space when there are inadequate indoor spaces for them to be.”
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. According to the ACLU the lawsuit was filed to stop the City of Albuquerque from destroying encampments of the unhoused all over the city and preventing the city from seizing and destroying personal property and jailing and fining people for being unhoused.
The lawsuit alleges the city unlawfully seized personal property, denied due process of law, and violated constitutional rights by destroying 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 sought court orders that required the city to cease and desist enforcement actions to stop the unhoused from camping in public spaces which include public streets, public rights of ways, alleyways, under bridges and city parks unless the city has shelter or housing for them.
GRANTS PASS V. JOHNSON
On June 28, 2024 the United State Supreme Court announced its ruling in the case of Grants Pass v. Johnson where the court held that local laws effectively criminalizing homelessness do not violate the U.S. Constitution and do not constitute cruel and unusual punishment. The link to the Supreme Court opinion is here:
Click to access 23-175_19m2.pdf
The case challenged a municipality’s ability to bar people from sleeping or camping in public areas, such as sidewalks and parks. Local governments wanted to enforce ordinances making it a crime to sleep on public sidewalks, streets and alleyways, camp on public property as a temporary place to live, or camp or park overnight in the city’s parks. The case is strikingly similar in facts and circumstances and laws to the case filed against the City of Albuquerque over the closure of Coronado Park.