The case of Grants Pass v. Johnson is a US Supreme Court case that challenges a municipality’s ability to bar people from sleeping or camping in public areas, such as sidewalks and parks. The Supreme Court is considering whether cities can enforce laws and take action against or punish the unhoused for sleeping outside in public spaces when shelter space is lacking. On April 22, the United States Supreme Court heard oral arguments in the case that in all likelihood will be a landmark decision on how communities across the United States will be able to deal with the homeless and if communities are obligated to provide shelter or housing. The case will have a major impact on a case pending against the City of Albuquerque.
CITY OF ALBUQUERQUE PENDING LITIGATION ON THE HOMELESS
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 Coronado 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 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 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 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.
The link to review the full unedited complaint is here:
https://www.aclu-mm.org/sites/default/files/field_documents/final_complaint_class_action.pdf
PRELIMINARY INJUCTION ISSUED
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. Judge Allison issued a preliminary ruling that said, given a shortage of shelter beds, the city of Albuquerque cannot punish homeless people for their “mere presence” on public properties. The injunction, which has since been modified, was put in place November 1 and restricted how the city can ask people camping on public property to move. A trial date was scheduled for August of this year, but it has been vacated as a result of the pending case Grants Pass v. Johnson before the United States Supreme Court.
UNITED STATES SUPREME COURT CASE
On April 22, the United States Supreme Court heard oral arguments in the case of Grants Pass v. Johnson. The case involves the city of Grants Pass, Oregon that enacted a city ordinance that bars camping on public property and prohibits homeless people from using blankets, pillows and cardboard boxes while sleeping within city limits. The ordinance allows the issuance of $295 fines to people sleeping outdoors in violation of the ordinance. At first, violators can face fines, but subsequent offenses can result in jail time. The ordinance was enacted as the cost of housing escalated and tents sprung up in the city’s public parks, open space and recreational areas.
Supporters of the city ordinance said it helps the area deal with a growing number of encampments that can be unsafe. Opponents argue it amounts to cruel and unusual punishment.
The 9th Circuit Court of Appeals decided that the ordinance punishes people for sleeping outside without enough available indoor shelter and it was a violation of the Eighth Amendment, amounting to a cruel and unusual punishment. The question of where the unhoused can camp to sleep is an urgent one in the West, where a cross-section of Democratic and Republican officials contend that the 9th Circuit’s rulings on camping bans make it difficult for them to manage homeless encampments.
The case is the most significant case before the Supreme Court in decades on the issue. It comes as a record number of people are without a permanent place to live in the United States. The U.S. 9th Circuit Court of Appeals based in San Francisco largely struck down the ordinance holding that banning camping in places without enough shelter beds amounts to cruel and unusual punishment. The same court found in 2018 that such bans violated the 8th Amendment by punishing people for something they don’t have control over. The U.S. 9th Circuit Court of Appeals has jurisdiction over the states of Alaska, Arizona, California, Nevada, Idaho, Montana, Washington, Hawaii and the U.S. Territory of Guam.
ARGUMENTS MADE BEFORE THE SUPREME COURT
In a pleading file with the Supreme Court, lawyers for the city of Grants Pass rejected the idea that the penalties amount to cruel and unusual punishment. They wrote:
“Neither the civil fines imposed by petitioner Grants Pass for violating ordinances regulating camping on public property, nor short jail terms for serial violators, are cruel and unusual.”
Lawyers for the Plaintiffs who challenged the ordinance argued in briefs that a lack of resources leaves homeless people without other options. They wrote:
“Because there are no homeless shelters in Grants Pass and the two privately operated housing programs in town serve only a small fraction of the city’s homeless population, most of the city’s involuntarily homeless residents have nowhere to sleep but outside.”
During the April 22 hearing, the Supreme Court Justices appeared to be leaning toward a narrow ruling in the case after hearing arguments that showed the stark terms of the debate over homelessness in Western states like California, which is home to one-third of the country’s homeless population.
Progressive Justice Sonia Sotomayor argued that sleeping is a biological necessity, and people may be forced to do it outside if they can’t get housing or there’s no space in shelters. She asked the questions:
“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”
Conservative Justice Brett Kavanaugh said solving homelessness is a complicated issue. He questioned whether ticketing people for camping helps if there aren’t enough shelter beds to hold everyone, but also raised concerns about federal courts “micromanaging” policy.
Other conservative justices asked how far Eighth Amendment legal protections should extend as cities struggle with managing homeless encampments that can be dangerous and unsanitary. Conservative Justice Neil Gorsuch asked this:
“How about if there are no public bathroom facilities, do people have an Eighth Amendment right to defecate and urinate outdoors?”
Justice Department Attorney Edwin Kneedler said other public-health laws cover that situation and argued people shouldn’t be punished just for sleeping outside, but said the ruling striking down the Grants Pass law should be tossed out because the court didn’t do enough to determine if people are “involuntarily homeless.”
Justice Gorsuch and other justices also raised the possibility that other aspects of state or federal law could help sort through the issue, potentially without setting sweeping new legal precedent.
Advocacy groups, on the other hand, argued that allowing cities to punish people who need a place to sleep will criminalize homelessness and ultimately make the crisis worse as the cost of housing increases. Hundreds of demonstrators gathered outside the Supreme Court on April 22 during the court hearing to advocate for more affordable housing, holding silver thermal blankets and signs like “housing not handcuffs.”
The Supreme Court is expected to decide the case by the end of June when it goes on break.
NATURE OF THE CRISIS
Homelessness in the United States grew a dramatic 12% last year to its highest reported level, as soaring rents and a decline in coronavirus pandemic assistance combined to put housing out of reach for more Americans.
Data from the U.S. Housing and Urban Development Department (HUD) yearly “Point In Time Survey” show on a single average night last year, over 650,000 people experienced homelessness. That marked the highest number of homeless people reported since HUD began reporting the data in 2007. Four out of 10 people without a home experienced unsheltered homelessness. Nearly half of them sleep outside. Older adults, LGBTQ+ people and people of color are disproportionately affected, advocates said.
In Oregon, a lack of mental health and addiction resources has also helped fuel the crisis. The state has some of the highest rates of homelessness and drug addiction in the nation, and ranks near the bottom in access to treatment, federal data shows.
The link to quoted news sources are here:
NEW MEXICO’S AND ALBUQUERQUE’S UNHOUSED NUMBERS
On May 22, 2023 the NM Legislative Finance Committee (LFC) released a report on the state’s homeless and the affordable housing shortage which included the preliminary estimates of the 2023 Point In Time (PIT) annual homeless count. The “Point in Time” (PIT) survey is conducted once a year to determine how many people experience homelessness on a given night in communities across New Mexico. The PIT count is the official number of homeless reported by communities to the federal Department of Housing and Urban Development (HUD).
According to the LFC Report on Homelessness and Affordable Housing, New Mexico’s homeless numbers increased 48% in 2023 going from upwards of 2,600 people to 3,842. The increase was driven by an increase in the unsheltered count with 780 more people in Albuquerque and 232 more in the rest of the state. About half the emergency shelter beds available were used indicating overall adequate bed numbers statewide. However, shelter accessibility was reported as significantly lowering utilization rates because some individual emergency shelters are full while others are extremely hard to reach.
According to the LFC report, people experiencing unsheltered homelessness are more likely to exhibit multiple risk factors. These individuals tend to have higher service needs, tend to be more frequent users of community services, such as emergency room visits and inpatient and outpatient treatments, and require more acute care.
The Point In Time data breakdown for the unsheltered for the years 2009 to 2022 reports 46% of the unsheltered suffer from serious mental illness and that 44% of the unsheltered suffer from substance abuse for a staggering 89% combined total. When it comes to the homeless in Albuquerque, 30.19% of the homeless self-reported as having a serious mental illness and 25.5% self-reported as substance abusers.
There is an overlap with homeless suffering both mental illness and substance abuse. In other words, a whopping 55.69% combined total of those surveyed self-reported as having a serious mental illness or were substance abusers. When it comes to the balance of the state homeless numbers, 43% were identified as adults with serious mental illness and 40% were identified as adults with substance use disorders or a staggering 83% combined figure.
The link to the entire 2023 PIT survey is here:
https://www.nmceh.org/_files/ugd/6737c5_4ecb9ab7114a45dcb25f648c6e0b0a30.pdf
CITY OF ALBUQUERQUE PENDING CASE
The Supreme Court ruling in the Grants Pass City ordinance case will likely have a major impact on the lawsuit filed against the City of Albuquerque. The City of Albuquerque filed an amicus brief in the case before the Supreme Court. Originally, the City of Albuquerque case trial was scheduled for August, but because of the Supreme Court case, the trial has been vacated until the Supreme Court case is decided.
Laura Schauer Ives, one of the attorneys representing the plaintiffs in the city’s case said there was “pressure” for the nation’s highest court to take up the case. Schauer Ives said this:
“It’s something that communities are struggling with. … We continue to contend the struggle is not improved, nor answered, by criminalizing the most vulnerable people. … We want to know what the new federal standard is going to be and what exactly our trial will need to look like.”
City spokesperson Staci Drangmeister said the Grants Pass camping ban is “very different” from existing Albuquerque city ordinances. The City of Albuquerque published a “Policy for Responding to Encampments on Public Property” in 2021, which was revised in 2022. Drangmeister said this:
“The City remains focused on both connecting people experiencing homelessness to services and shelter and enforcing our laws to keep our city safe and clean for everyone. … We are awaiting the SCOTUS decision on Johnson vs Grants Pass to determine if it will have any direct impact on Albuquerque.”
Schauer Ives said that even if the high court decides in favor of Grants Pass, the lawsuit against the City of Albuquerque can continue, relying on a state constitution argument. She added that arguments against the seizure and destruction of property should be unaffected. Schauer Ives said this:
“The federal law can inform the New Mexico Supreme Court’s inquiry, [but] it’s not determinative of it.”
The link to the quoted news source is here:
COMMENTARY AND ANALYSIS
The United Supreme Court is grappling with to very divergent and very complicated questions:
1. To what extent can government enforce laws and ordinances designed to protect the general public’s health, safety and welfare against the unhoused? The unhoused are not above the law. They cannot be allowed to just ignore the law, illegally camp wherever they want for as long as they want and as they choose, especially when they totally reject any and all government housing or shelter assistance.
2. To what extent must government pay for and provide shelter and services to all homeless before taking enforcement action against the homeless? Being unhoused is not a crime. Government, be it federal or local, has to some extent a moral obligation to help and assist the unhoused, especially those that are mentally ill or who are drug addicted. But the big question is to what extent does government have an obligation to provide housing or shelter to the unhoused and must it be housing the homeless approve of?
GRANTS PASS V, JOHNSON MIRRORS LAWSUITE AGAINST ALBQUERUE
The Supreme Court case essentially asks whether a city may enact so many restrictions on sleeping in public and similar behavior that it amounts to an effective ban on being unhoused and criminalizing the unhoused.
There are identical arguments being made in the lawsuit filed against the City of Albuquerque that are being made in the Grants Pass v. Johnson Supreme Court case. The city’s 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 filed against the City of Albuquerque 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 filed against the City of Albuquerque does not challenge the constitutionality of any of the state statutes nor city ordinances but makes the following very broad allegation:
“[T]he 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.”
See Paragraphs 83 to 90, “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief”:
Click to access final_complaint_class_action.pdf
ALBUQUERQUE’S NO ARREST POLICY
The civil complaint file against the City of Albuquerque by the ACLU alleges that the city is “jailing and fining” the unhouse because of their status of being homeless. This allegation is simply not true. According to the complaint, not one of the 8 plaintiff’s allege they 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, what is involved are 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.
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 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 individuals who pose 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 KOB story is here:
https://www.kob.com/new-mexico/unm-law-professor-weighs-in-on-mayors-claims-about-homelessness/
ALBUQUERQUE’S FINANCIAL COMMITMENT TO UNHOUSES
Plaintiff’s complaint against the City of Albuquerque concentrates on the lack of shelter offered by the city. It ignores all the financial assistance the city offers the unhoused and fails to disclose what the unhoused reject.
Since being elected in 2017 to his first term, Mayor Tim Keller has made dealing with homeless a major priority. 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.
Over the last 3 years, the Keller Administration has spend upwards of $50 Million a year to deal with the homeless including expanding services and establishing the 24/7 Gateway Center. The Health, Housing and Homelessness (HHH) Department was created and it provides a range of services to the unhoused. The proposed FY/25 General Fund budget for the HHH Department is $52.2 million, which includes $48 million for strategic support, health and human services, affordable housing, mental health services, emergency shelter, homeless support services, Gibson Health HUB operating and substance use services from Family and Community Services Department, and $4.2 million for a move of Gibson Health HUB maintenance division form General Service Department.
SUPREME COURT DECISION WILL LIKELY NOT END WELL FOR UNHOUSED
The right wing U. S. Supreme Court’s final decision in Grants Pass v. Johnson more likely than not is not going to end well for the unhoused. The line of questioning from the justices reflected a degree of skepticism that the federal judiciary should play much, if any, role at all in addressing homelessness in the United States.
“The bulk of the Court’s questions … and especially the questions from the Court’s Republican appointees, focused on the difficult “line-drawing” questions that arise once the Supreme Court says that there are constitutional limits on what the government can do to criminalize behaviors that are associated with homelessness.
If a city cannot criminalize sleeping in a public park with a blanket, for example, can it criminalize public urination or defecation by someone who does not have access to a toilet? Can it criminalize lighting a fire in public to stay warm? And does the answer change if the person who lights the fire needs to do so in order to cook?
Given these difficult questions, many of the justices, and especially Chief Justice John Roberts, Justice Samuel Alito, and Justice Neil Gorsuch suggested that maybe the courts should stay away from homelessness policy altogether and let local governments sort out how they want to deal with this issue.”
“Justices Clarence Thomas, Sonia Sotomayor, and Ketanji Brown Jackson floated the possibility that the federal judiciary may lack jurisdiction to hear the case to begin with. Such a decision would allow the Court to punt on the broader question of whether the Constitution permits the government to effectively criminalize homelessness.
Given the morass of competing concerns raised by different justices, it is difficult to predict what the Court’s opinion will ultimately say. However, it is unlikely that Grants Pass will end in a significant victory for people who lack shelter.”
The link to quoted news source is here:
https://www.vox.com/scotus/24137225/supreme-court-homelessness-grants-pass-johnson
RIGHT WING ACTIVIST COURT MARGINALIZES PROGRESSIVES’ JUSTICES
Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have joined Conservative Republican Chief Justice John G. Roberts, Jr. and Associate Justices Clarence Thomas and Samuel A. Alito, Jr. to marginalize Progressive Democratic Progressive Associate Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson. Housing the unhoused is part of a progressive agenda.
The 6 appointed Republican Justices have already made a profound difference with their judicial activism over the last 2 years. At the end of June, 2023, the United State Supreme Court issued 4 major decisions that were highly anticipated and with great concern confirming it has become a far-right wing activist court. The first was the court’s rejecting an attempt to empower legislatures with exclusive authority to redraw congressional districts without court intervention. The second struct down decades of affirmative action in college admissions. The third ruled that a Christian business owners can discriminate and withhold services to the LGBTQ+ community based on religious grounds. The fourth invalidated President Joe Biden’s student loan debt relief plan. Then there is the matter of the Supreme Court reversing Roe v. Wade and 50 years of precedent and denying a woman’s right to choose an abortion and leaving it up to the state’s.
It is very difficult to imagine the current conservative United States Supreme Court will have much sympathy for the plight of the homeless let alone mandate government to provide housing. It’s likely the Supreme Court will be reluctant to curtail government enforcement of laws and ordinances that have the purpose of preserving and protecting the general public health, safety and welfare and the rights of all its citizens.
The link to a related blog article is here:
The link to a relied upon news article is here:
Supreme Court weighs bans on sleeping outside amid rise in homelessness