On December 19, 2022 the American Civil Liberties Union and others filed a class action lawsuit on behalf of 8 plaintiffs against the City of Albuquerque over the closure of Coronado Park and alleging civil rights violations. 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. This article is an in depth analysis and commentary on the Supreme Court’s ruling and its impact on the class action lawsuit filed against the City of Albuquerque.
CLOSURE OF CORONADO PARK
On August 18, 2022, the City of Albuquerque closed Coronado Park that had become a de facto city sanctioned homeless encampment that Mayor Tim Keller allowed and where the city evicted 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 biggest factor and justification for closing Coronado Park was crime. 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].”
CLASS ACTION LAWSUITE FILED AGAINST CITY OF ALBUQUERQUE
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 who were evicted by the city from Coronado Park. Not one of the 8 plaintiffs 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. 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 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 sufficient 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 includes public streets, public rights of ways, alleyways, under bridges and city parks unless the city has shelter or housing for them.
On September 21, 2023 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 mandated 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 was later modified, was put in place and restricted how the city can ask people camping on public property to move. The injunction cited both the Eighth Amendment to the United States Constitution and the Fourth Amendment, which prohibits unreasonable searches and seizures.
The injunction was designed to limit the city’s sweeps of homeless encampments but the injunction was dropped in May of 2024. The injunction required that campers be given a 72-hour notice to vacate and be offered storage for belongings and transportation to a shelter. It also required an opportunity for belongings to later be reclaimed. The city said even though the injunction was dropped in May, it has been giving campers appropriate notice and offering resources. The city said it will continue to send staff to conduct welfare checks at encampment sites and offer a list of services for campers.
A trial date was scheduled for August of this year, but it was vacated as a result of the pending United States Supreme Court case Grants Pass v. Johnson
STATUTES AND ORDINANCES ENUMERATED
The lawsuit against the city 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. The City of Albuquerque and the Albuquerque Police Department has agreed that only citations will be issued and no arrests will be made for violations of the 8 statutes and city ordinance as part of a court approved settlement in a decades old federal civil rights lawsuit dealing with jail overcrowding.
US SUPREME COURT CASE GRANTS PASS V. JOHNSON
On June 28, 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 case challenged a municipality’s ability to bar people from sleeping or camping in public areas, such as sidewalks and 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.
The case came from the rural Oregon town of Grants Pass, which appealed a ruling striking down local ordinances that fined people $295 for sleeping outside after tents began crowding public parks. The homeless plaintiffs argued that Grants Pass, a town with just one 138-bed overnight shelter, criminalized them for behavior they couldn’t avoid: sleeping outside when they have nowhere else to go.
Meanwhile, municipalities across the western United States argued that court rulings hampered their ability to quickly respond to public health and safety issues related to homeless encampments. The U.S. 9th Circuit Court of Appeals, which has jurisdiction over the nine Western states, ruled in 2018 that such bans violate the Eighth Amendment in areas where there aren’t enough shelter beds.
The United States Supreme Court considered whether cities can enforce laws and take action against or punish the unhoused for sleeping outside in public spaces when shelter space is lacking. The case is the most significant case heard by the high court in decades on the rights of the unhoused and comes as a rising number of people in the United States are without a permanent place to live.
In a 6-3 decision along ideological lines, the Supreme Court reversed a ruling by a San Francisco-based appeals court that found outdoor sleeping bans amount to “cruel and unusual punishment” under the United States Constitution. The majority found that the 8th Amendment prohibition against cruel and unusual punishment does not extend to bans on outdoor sleeping in public places such as parks and streets. The Supreme Court ruled that cities can enforce bans on homeless people sleeping outdoors, even in West Coast areas where shelter space is lacking.
Justice Neil Gorsuch wrote for the majority:
“Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. … A handful of federal judges cannot begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness. … Cities across the West report that the 9th Circuit’s involuntary test has crated intolerable uncertainty for them.”
Gorsuch suggested that people who have no choice but to sleep outdoors could raise that as a “necessity defense,” if they are ticketed or otherwise punished for violating a camping ban.
A bipartisan group of leaders had argued the ruling against the bans made it harder to manage outdoor encampments encroaching on sidewalks and other public spaces in nine Western states. That includes California, which is home to one-third of the country’s homeless population.
Homeless advocates argue that allowing cities to punish people who need a place to sleep would criminalize homelessness and ultimately make the crisis worse. Cities had been allowed to regulate encampments but couldn’t bar people from sleeping outdoors.
Progressive Justices Sonia Sotomayor, Elena Kagan and Ketangi Brown Jackson dissented. Sotomayor read from the bench the dissent and said this:
“Sleep is a biological necessity, not a crime. … Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment. … It is quite possible, indeed likely, that these and similar ordinances will face more days in court. … It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles. … [But the majority instead] focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”
Attorney Theane Evangelis, who represented Grants Pass before the high court, applauded the ruling, saying the 9th Circuit decision had “tied the hands of local governments.” Evangelis said this:
“Years from now, I hope that we will look back on today’s watershed ruling as the turning point in America’s homelessness crisis.”
The Supreme Courts ruling comes after homelessness in the United States has peaked and grown 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 people. More than 650,000 people are estimated to be homeless, the most since the country began using a yearly point-in-time survey in 2007. 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 Link to a quoted and relied upon news sources are here:
https://www.koat.com/article/supreme-court-oregon-homelessness/61453397
CITY’S REACTION TO SUPREME COURT RULING
On June 28, the City of Albuquerque issued the following news release in response to the US Supreme Court ruling in Grants Pass v. Johnson:
“In the coming weeks, City leaders will evaluate how the U.S. Supreme Court’s decision in Grants Pass v. Johnson will affect Albuquerque. The City appreciates more flexibility to enforce ordinances and will continue to protect the rights of unhoused individuals.
The City of Albuquerque responds to over 50 illegal camps every day. Outreach staff conduct welfare checks on all those at camp sites, then provide an extensive list of services including medical, shelter, behavioral health, and property storage. The Albuquerque Community Safety (ACS) department provides evaluation and transport for anyone who accepts services. This process will continue.
“I know there will be mixed reactions to this ruling in our community, so I want to be clear—the City will continue to do everything in our power to get people the help they need and to deal promptly with illegal encampments,” said Mayor Tim Keller.
The City of Albuquerque has made historic investments over the last few years to increase the number of shelter beds, resources, and pathways out of homelessness.
Prior to this administration, the Westside Emergency Housing Center was only open at night and during the winter. We made it year-round, 24/7 and increased the bed capacity. We opened the Gateway and have shelter for families, providing wrap around services for people get into permanent housing faster. The Gateway will nearly quadruple in size by next spring and will serve 1,000 people a day.
The City has also tripled supportive housing vouchers since FY18, one of the most effective ways to ensure a permanent exit from homelessness. Since 2018, the City has also invested more than $71 million to bring over 2,200 new housing units to market and is buying and converting underutilized hotels into housing, like Los Altos Lofts. This summer we are dedicating $23 million to help developers build affordable housing.
“We know that everyone’s story is unique, and people need compassionate support and resources to exit homelessness and get the stable housing that they deserve,” said Gilbert Ramirez, Director of Health, Housing and Homelessness. “We are adding vital services and working with our partners to build out a robust continuum of care so we can lift up those struggling in our city.”
“ACS builds relationships with people experiencing homelessness through our outreach, and we work to establish trust so that people are comfortable getting the services they need,” said Albuquerque Community Safety Department Acting Director Jodie Esquibel. “We will continue to work in step with the community to connect people resources.”
The City has also worked tirelessly with our partners at Bernalillo County and UNM to identify and fill in gaps in Albuquerque’s behavioral health and substance use treatment system. The newly opened Crisis Triage Center at UNM and the Gateway’s Medical Sobering, opening this fall, will connect thousands of people per year to the psychiatric, peer support, and substance use recovery services they need while relieving our strained emergency rooms.
The link to the news release is here:
https://www.cabq.gov/mayor/news/city-leaders-react-to-grants-pass-v-johnson-ruling
NEW MEXICO ACLU REACTS TO SUPREME COURT RULING
The American Civil Liberties Union of New Mexico, one of the groups representing the plaintiffs in the Albuquerque lawsuit, indicated a state constitution argument could still be pursued and called fines or jail time imposed for sleeping outside “inhumane and ineffective.”
Maria Archuleta, communications director for ACLU New Mexico, said this in a statement in reaction to the Supreme Court ruling:
“Here in New Mexico, we believe our state constitution provides broader protections than its federal counterpart. … We will continue to push back against municipalities that criminalize people for simply existing in public spaces.”
The links to a quoted and relied upon news sources is here:
COMMENTARY AND ANALYSIS
The Supreme Court ruling in Grants Pass v. Johnson will no doubt have a major impact on the class action lawsuit filed against the City of Albuquerque. The US Supreme Court has aggressively reversed the lower federal court’s ruling that local laws the ACLU feel effectively criminalizing homelessness do not violate the U.S. Constitution and do not constitute cruel and unusual punishment as they alleged in their case against the city. There is no requirement that local government nor municipalities be required to provide sufficient, satisfactory housing options to the unhoused before they can cite or make an arrest.
The closure of Coronado Park was absolutely necessary because of what it had become which was a violent, crime invested, ground contaminated park that posed an immediate threat to the unhoused, the surrounding neighborhood and to the general public. The unhoused have reached crisis proportions, not because their numbers have increased, but because they have become far more visible and aggressive by illegally camping in parks, on streets, in alleyways and in city open space, whenever they want and refusing city services, medical attention and city shelter. The overwhelming majority of the Coronado Park unhoused declined the services and shelter offered. Many told the city they planned to move to another park or street location.
The ACLU lawsuit makes sweeping allegations of civil rights violations that are highly inflammatory and, in many respects, simply false. The suit alleges that “the City regularly enforces City ordinances and state laws against unhoused people in a manner that criminalizes their status as homeless, the City deprives them of the means to survive. The destruction of people’s tents, tarps, blankets, and sleeping bags leaves them completely exposed to the elements. The destruction of people’s medicine, food, and water deprives them of some of the most essential conditions for life.” Stolen grocery store baskets brimming with abandoned items found in business dumpsters or residential garbage bins are not “meager, essential necessities for life.”
The ACLU complaint against the city essentially asserts the unhoused, because of their status and because there is no city housing available, they have the right to violate the law and illegally camp wherever they want for how long as they want without government interference. The unhoused are not above the law and do not have the right to violate the law because they are homeless.
The complaint alleges that the city is “jailing and fining” the unhouse because of their status of being homeless. This allegation is FALSE. APD has a “no arrest” policy for nonviolent homeless crimes such as trespass on public and private property, illegal camping in 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. When APD arrests or detains the unhoused it’s for felonies such as illicit drugs, stolen property, stolen or unlicensed guns or weaponry, individuals with outstanding arrest warrants or unhoused who pose an immediate threat to the public or themselves.
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. The city has spent or is spending upwards of $100 million a year on homeless services including for two emergency shelters, subsidized housing, food and medical care and drug counseling. The vast majority of the chronically unhoused refuse or decline city shelter, housing, services and financial help offered or simply say they are not satisfied with what is being offered by the city.
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, when they totally reject any and all government housing or shelter assistance. The City has every right to enforce its laws on behalf of its citizens to preserve and protect the public health, safety and welfare of all its citizens.
Unlawful encampment squatters who refuse city services and all alternatives to living on the street, who want to camp at city parks, on city streets in alleys and trespass in open space give the city no choice but to take action and force them to move on. The city needs to seek the immediate dismissal of the case and the 8 plaintiffs unsubstantiated or questionable claims for a failure to state claims upon which relief can be granted.
Allowing the homeless to use, congregate and camp anywhere they want for as long as they want in violation of city laws and ordinances should never be considered as an option to deal with the homeless crisis given all the resources the city is dedicating the millions being spent to assist the homeless. It was Mayor Keller who allowed a once beautiful and pristine park dedicated to public use to become a festering blight on the community.
Simply put, Coronado became an embarrassment with the city violating its own ordinances and nuisance laws by allowing overnight camping and criminal conduct in the park thus creating a public nuisance both under state law and city ordinance. Coronado Park became the symbol of Keller’s failure as Mayor to deal with the homeless crisis and he had to deal with a nuisance property of his own creation.
The homeless crisis will not be solved by the city nor by Mayor Keller, but it can and must be managed. The management of the crisis is to provide the support services, including food and lodging, and mental health care needed to allow the homeless to turn their lives around, become productive self-sufficient citizens, no longer dependent on relatives or others.
Too many elected and government officials and organizations such as the American Civil Liberties Association of New Mexico, have a hard time dealing with the fact that many homeless adults simply want to live their life as they choose, where they want to camp for as long as they can get away with it, without any government nor family interference and especially no government rules and no regulations. No county and no municipality should ever be required to just simply ignore and to not enforce anti-camping ordinances, vagrancy laws, civil nuisance abatement laws and criminal laws designed to protect the general public’s health, safety and welfare of a community.
Squatters who have no interest in any offers of shelter, beds, motel vouchers or alternatives to living on the street really give the city no choice but to make it totally inconvenient for them to “squat” anywhere they want and force them to move on. After repeated attempts to force them to move on and citations, arrests are in order.
The City of Albuquerque should seek the immediate dismissal of the ACLU lawsuit based on the United States Supreme Court ruling in Grants Pass v. Johnson .
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