Albuquerque City Councilor Renee Grout has introduced for city council enactment 3 city ordinances and amendments to make major changes to how the city is dealing with the homeless encampments. She has introduced legislation that will change rules about public camping, abandoned shopping carts, and the use of public parks in general. Grout says the 3 measures are intended to curb the effects of unhoused encampments, make public spaces safer and improve the quality of life of all residents.
The blog article is an analysis of all 3 measures.
AMENDMENTS TO THE PARKS ORDINANCE
The first amends the existing ordinance on the use of city parks and prohibits camping, fires, shopping carts, and deals with use of playground equipment and vandalism. The public encampment regulations further define the prohibitions on public camping in unauthorized areas such as parks, streets and sidewalks. The changes are intended to curb littering, vandalism, drug use, and illegal camping.
The amendments to the Parks Ordinance contain the following prohibitions:
- No Camping. No person will be allowed to camp or construct or erect any tent, building or other structure whether permanent or temporary, in a park for the purpose of staying in the park overnight or be allowed extension of electrical utilities except by written permission of the Mayor. An exception would be allowed for youth organizations camping with adult supervision for one night only and with written permission or a permit from the Mayor and the Director of the Parks & Recreation Department.
- Shopping Carts Prohibited. Shopping carts would be prohibited in all City parks, city open spaces, and the parking areas that serve these facilities. Any shopping cart, whether empty or containing any merchandise or belongings, may be confiscated and either returned to the cart owner, recycled, or otherwise disposed of.
- Wrongful Use of Playground Equipment. Unless otherwise posted, the use of playground equipment is reserved for children. Adults would be allowed in playground areas or within 50 feet of playground areas only when accompanied by a child under the age of 12, unless the 50-foot buffer extends beyond the Park boundary. This buffer may include gazebos, benches, and tables,
- Children Park Designations. The Mayor may designate certain parksas “Children’s Parks” and restrict access by adults unless they are accompanied by a child under the age of 12. Users must follow playground guidelines and restrictions. During park operating hours, no person shall engage in any conduct that deprives park visitors of the intended use of the playground equipment.
- Vandalism of Park Grounds. The existing law provides “No person in a park shall damage, cut, carve, transplant or remove any tree or plant or injure the bark or pick the flowers or seeds, of any tree or plant.” The ordinance will be amended to provide (in bold and italicized) that “No … person [shall] attach any rope, wire, hammock, or other contrivance to any tree or plant. No person shall damage grass by leaving personal items in grass areas for extended periods.”
- No Feeding of Wildlife. No person in a park shall give or offer or attempt to give to any animal or bird any food, tobacco, alcohol, or other known noxious or injurious substances to any bird or wild animal. Park users shall clean up and remove all food scraps and wrappers that could attract wild animals.
- No Fires. Fires would only be allowed in permanent grills provided by the City for cooking.
- Vending of Merchandise. Vending would be allowed only by licensed vendors in designated areas only with a valid permit from the Department of Parks & Recreation. Food vendors must carry all other permits required by the Environmental Health Department, the Fire Marshal, and any other regulatory agencies.
- Advertising signs and 2 banners may be allowed only on outfield fences in baseball and softball parks. The “batter’s eye” portion of all outfield fences, defined as the area directly behind the pitcher from the batter’s perspective, shall be kept clear of all signs, banners, and other visual distractions.
- Dog Exercising. Any person may exercise dogs with or without leash in parks designated by the Mayor with times prescribed.
The link to review the entire ordinance is here:
https://htv-prod-media.s3.amazonaws.com/files/o-56-673abd707d89b.pdf
Councilor Grout said this about her proposed changes to city park usage ordinance:
“We should be able to go and play catch with the ball, play soccer, have picnics in the park and not worry. Sometimes, people use them to sleep. You know, you can take a nap in the park, that’s fine. But there’s not supposed to be overnight camping. … Parents should be able to know that the children can run around and play in … playground[s]. There shouldn’t be a fear of stepping on a needle, that has happened. … There have been children that have stepped on needles in parks. … They see people that are passed out in parks. … Our children should not be subject to seeing this in a public park. … We just want our children and our grandchildren and neighbors to be able to enjoy our beautiful, public spaces.”
“SHOPPING CART ABANDONMENT” PREVENTION ORDINANCE
The second ordinance deals with shopping cart theft and abandonment. Shopping carts are stolen from grocery stores and businesses and often used by the homelessness to transport their personal belongings. Metal shopping carts range in price from anywhere from $159 to $250.
Abandoned shopping carts can pose safety hazards and contribute to neighborhood blight. This ordinance would make it illegal to possess shopping carts outside of a retailer’s property. Possession of a cart would result in a petty misdemeanor and could include fines or jail time. However, a judge would be able to give a community service sentence instead. The resolution would place far more responsibility on businesses to prevent shopping cart thefts and would require businesses to submit a plan to the city on steps they’re taking to keep carts secure. The ordinance would allow the city to collect abandoned shopping carts and hold them for up to 30 days before being considered “forfeited.” Businesses would have 7 days to pick up their shopping carts for a $25 fee. An extra $5 will be tacked on for every day after. Forfeited carts would be recycled, donated, or repaired and sold.
City Councilor Grout said this about the shopping cart ordinance:
“As a business owner, we are responsible for what makes our business tick, and they just need to be more responsible for the carts. … We see them all over. We see abandoned carts. … We don’t want it to be a burden on businesses, but they should be responsible for, what makes the business go around. Shopping carts are part of that, and so they need to take care of them.”
The link to review the entire shopping cart ordinance is here:
https://htv-prod-media.s3.amazonaws.com/files/o-57-673abd7d003f8.pdf
PUBLIC CAMPING ORDINANCE
The third ordinance makes illegal “public camping” in unauthorized areas such as parks, streets and sidewalks.
The ordinance defines “CAMP” as “ To occupy an area for the purpose of establishing or maintaining a permanent or temporary place to live, or to occupy an area with an apparent intent to remain in that location for 24 hours or more.”
CAMP FACILITIES are defined in the act as “Tents, huts and any other temporary structures or shelters.”
An ENCAMPMENT is defined as “An area where an individual or individuals have erected one or more tent or structures or placed personal items on public property with the apparent intent to remain in that location for 24 hours or more. An area will not be deemed an encampment merely because any individuals are present on public property or because individuals have temporarily placed personal items on public property.”
The ordinance is straight forward making it unlawful to camp on public property and it states:
“Except as otherwise authorized by ordinance or by rules issued by the Department of Parks and Recreation, it shall be unlawful for any person to camp, or maintain an encampment, in any publicly owned area, including any street, sidewalk, right of way, park, or open space. It shall further be unlawful for any person to refuse to remove an encampment from public land after receiving a notice instructing them to remove the encampment, or to set up an encampment after being ordered to remove one from a particular location. A person does not violate this ordinance if the person is merely sitting, sleeping or lying on public property on a temporary basis.”
The new ordinance will also make it unlawful for any person to maintain personal property, including camp facilities or camp paraphernalia, on public property after that person has received a notice instructing them to remove the items.
Violation of the ordinance is a petty 5 misdemeanor and, upon conviction be subject to a fine not exceeding $500 or by imprisonment not exceeding 90 days or both (§ 1-1-99)
The link to review the camping ordinance is here:
Click to access o-58-673abd810f065.pdf
All 3 ordinances have been referred to the City Council Finance, Government and Operations Committee for hearings. Final action on the measures will likely occur after January 1.
OBJECTIONS RAISED AND RESPONSES
Anami Dass, chair of the city’s Human Rights Board, had harsh words of the measures dealing with prohibitions on public camping saying the measures amount to little more than an “attack on rights.” Dass said this:
“Life for some of us is hard enough — we don’t need the individuals we elected to represent all of us introducing ordinances designed to take tents away from people who literally have no alternative. … These ordinances are going to be up for final action around Christmas, and the Council will be debating Grout’s proposals to make life even worse for unhoused people … I think it’s time we consider what it is we are becoming, and who we would rather be instead.”
Councilor Grout said this in response to the criticism:
“It is not an attack on the homeless community at all. The taxpayers have been very generous with their money. We have spent millions of dollars on contracts with nonprofit providers to help them with services, getting them into shelters, getting them into housing.”
“We spent $85.9 million from 2020 to 2024 on contracts with social service providers — that doesn’t even include federal funding. We just budgeted $4 million to operate the Gibson Gateway Center and we’ve spent $100 million rehabbing it. In fiscal year 2024 we spent $13.5 million in housing vouchers. We’re also remodeling the Gateway West — the Westside shelter.”
“We need to help our less fortunate people, but we can’t allow them to just run amok in our community. … Families often tell [me] they feel unsafe in their neighborhood parks. … We all have to live by rules whether we like it or not.”
“Homelessness is not a crime — but a lot of the behavior is. We need to get them into safe shelter. We need to get them into safe spaces, because they deserve better than just being on the street in my opinion.”
“There’s nothing wrong with having boundaries. … If somebody wants to camp out or live outside, that’s their business — but they have to do it in certain areas. It can’t just be anywhere they want.”
“We’re codifying it because it’s documented in several places, in the traffic code, in the [Integrated Development Ordinance], the criminal code, it’s in the open space [code] — it’s even mentioned in the parks ordinance. … It’s mentioned, but not really defined. This is getting it better defined.”
Links to quoted and relied upon news sources are here:
https://www.koat.com/article/city-council-proposals-to-make-public-spaces-safer/62932205
https://citydesk.org/2024/trio-of-ordinances-seeks-to-curb-effects-of-encampments/
Click to access o-58-673abd810f065.pdf
EXISTING STATE STATUTES AND CITY ORDINANCES
The State of New Mexico and the City of Albuquerque have enacted 8 laws and ordinances enacted to protect the general public health, safety, and welfare and to protect the public’s peaceful use and enjoyment of property. The specific statutes and ordinances 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 have agreed that only citations will be issued and no arrests will be made for “nonviolent crimes” as part of a federal court approved settlement agreement 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
COMMENTARY AND ANALYSIS
There is a fine balance between assisting those experiencing homelessness while also enforcing laws that are designed to protect public health, safety and welfare and the peaceful use and enjoyment of public lands by the public such as parks. The Albuquerque City Council and Mayor Keller are on opposite sides on many issues, with one notable exception and that is how to deal with the unhoused and that unhoused encampments should not be allowed.
The Keller Administration has gone so far as to implement a formal homeless encampment removal policy that establishes the priority of what encampments to target first. The policy provides a timeline for which individuals must be notified of an encampment clearing. It provides for storage of personal belongings by the city free of charge. It authorizes the city to dispose of personal property seized that is abandoned.
The proposed ordinances and amendments to the existing ordinances as proposed by City Councilor Renee Grout represent a good faith effort to deal with problematic encampments. However, her proposals are in fact an overlap or a redundancy to existing state laws and city ordinances calling into question what will be accomplished, if anything, if enacted. As it stands under existing law, unhoused squatters or campers can be charged with criminal trespassing, unlawful use of public property, interference with sidewalk usage and street rights of way and unlawful nighttime camping in public parks. The city also has an aggressive encampment clearance policy.
The shopping cart abandonment ordinance is somewhat unique and clever at the same time, but it essentially places burdens on businesses who are victims of crime and stolen property when it’s the thief that needs to be charged. Victims of stolen shopping carts should not be required to pay the city $25 for the return of their stolen property and an extra $5 a day thereafter when they are told to pick up their property. Metal Shopping carts cost anywhere from $150 to $250 and unhoused who pilfer them could be charged with theft or possession of stolen property, but that in fact never happens.
The United States Supreme Court has given cities the green light to enforce vagrancy laws when it comes to the unhoused. Unhoused who have no interest in any offers of shelter, beds, motel vouchers or alternatives to living on the street force the city to make it totally inconvenient for them to “squat” anywhere they want and must force them to move on. After repeated attempts to reason with them to move on, citations and arrests are in order. Until the problem is solved, the public perception will be that very little to no progress has been made despite millions spent to deal with what Mayor Tim Keller proclaims as the “challenge of our lifetime.”
Links to related blog articles are here: