On December 17 at its last meeting of the year, the Albuquerque City Council enacted 2 out of 3 measures aimed at restricting overnight camping in public spaces and the use of public parks by the homeless. All 3 of the measures were sponsored by Republican City Councilor Renee Grout. During public comments, the 3 measures faced significant opposition from activists who voiced concerns that the legislation will criminalize homelessness and make it harder for unhoused individuals to stay warm during the winter. A small number of commenters spoke in favor of the ordinances.
TWO MEASURES PASSED
The two ordinances approved by the City Council are the “Parks Ordinance,” which addresses littering, vandalism and the “misuse of park facilities,” and the “Revised Ordinances of Albuquerque: Public Camping,” which bans camping on streets and sidewalks and “reduce(s) the negative impacts encampments often have on neighborhoods.” The “public camping regulations” ordinance prohibits public camping in unauthorized areas and on any city property, such as parks, streets and sidewalks. The bill’s goal is to clarify or add to current existing laws regarding illegal public camping.
City Attorney Lauren Keefe, who authored the measure, said there was a need for a legal clarity-enforcement balance. Republican City Councilor Dan Lewis said this during his interaction with City Attorney Keefe:
“This bill would certainly give some clarity to our current laws and ordinances, without a lot of loopholes or checkerboarding applications to it.”
AMENDMENTS TO THE PARKS ORDINANCE
One measure passed was amendments to 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. According to Councilor Grout, the changes are intended to curb littering, vandalism, drug use, and illegal camping. Grout said the measure was critical to address the safety concerns of those who say they don’t feel safe using city parks, especially families with young children and fears of children encountering needles. Needles being left behind where children play and aggressive behavior by homeless who are camping out in public spaces were cited as problematic.
The amendments to the Parks Ordinance bans camping in all city parks and ban shopping carts in or around public playgrounds and parks. According to Grout it “clarifies that parks are not meant for overnight camping, and adds a definition of camping. It allows for overnight camping by organized youth groups with permission.” It also closes parks at 10:00 p.m. instead of midnight and seeks to align the law with the current practice of allowing food trucks at parks and advertising at ball fields. The ordinance also states it is illegal for a person to refuse to leave if they have already received a notice to vacate
The amendments to the Parks Ordinance contain the following specific 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 parks as “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.
The Park Ordinance amendments passed on a 6-3 vote. Republican Councilors Renee Grout, Dan Lewis, Dan Champine, and Brook Bassan and Democrats Joaquín Baca and Louie Sanchez voted YES in favor. Democrats Klarissa Peña, Nichole Rogers and Tammy Fiebelkorn voting NO against the measure.
The link to review the entire ordinance is here:
https://htv-prod-media.s3.amazonaws.com/files/o-56-673abd707d89b.p
PUBLIC CAMPING ORDINANCE
The second measure passed makes illegal “public camping” in unauthorized areas such as parks, streets and sidewalks. The “park maintenance and playground safety” ordinance makes sleeping, erecting tents or storing personal items illegal in and near playgrounds at city parks. This ordinance was written by City Attorney Lauren Keefe and City Councilor Grout sponsored it at the request of the Keller Administration. It is intended to clear up gaps in existing ordinances regarding camping in public. While current laws prohibit camping in certain public places, this one called ‘The Public Camping Ordinance,” would be much broader. It will categorically ban camping in publicly owned places like streets and sidewalks. It was argued that passage would make the city safer.
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 camping ordinance passed 5-4. Republican City Councilors Renee Grout, Dan Lewis, Dan Champine, and Brook Bassan and Democrat Louie Sanchez voted YES. Democrats Joaquín Baca, Klarissa Peña, Nichole Rogers, and Tammy Fiebelkorn voted NO.
The link to review the camping ordinance is here:
Click to access o-58-673abd810f065.pdf
“SHOPPING CART ABANDONMENT” PREVENTION ORDINANCE
The third ordinance dealt with shopping cart theft and abandonment. Councilor Renée Grout withdrew the “Shopping Cart Abandonment Prevention Ordinance” after facing concerns and pushback from the mayor’s administration and fellow councilors.
Shopping carts are stolen from grocery stores and businesses and often used by the homeless to transport their personal belongings. Abandoned shopping carts can pose safety hazards and contribute to neighborhood blight. This ordinance would have made it illegal to possess shopping carts outside of a retailer’s property. Possession of a cart would have resulted 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 have placed 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 have allowed the city to collect abandoned shopping carts and hold them for up to 30 days before being considered “forfeited.” The shopping cart abandonment ordinance was unique and clever at the same time, but it essentially placed 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.
The link to review the entire shopping cart ordinance is here:
https://htv-prod-media.s3.amazonaws.com/files/o-57-673abd7d003f8.pdf
OPPOSITION EMERGES
During the public comment portion of the City Council, attendees critical of the measures argued that those experiencing homelessness are being criminalized and the damaging consequences of encampment sweeps ignored. Supporters argue that enforcement of the ordinances will further curb illegal camping, littering, vandalism, public defecation, drug use and the changes will protect the parks from criminal behavior.
The amendments to the Parks Ordinance and the Public Camping Ordinance were met with strong opposition from some members of the public who spoke out against them at the city council meeting.
Homeless Advocate Jarod Buell told the council this:
“The measures proposed today will punish unhoused people from the crime of not wanting to freeze and will fine them for what meager possessions they manage to hold on to.”
Kendal Jacobson, another community activists said this about the Public Camping Ordinance:
“Destroying their camps will do nothing to create more services for them and force them to sleep in deadly below-freezing temperatures.”
Republican City Councilor Renee Grout said this in response to the criticism of her sponsored bills:
During debate, Councilor Grout said this about the Parks Ordinance:
“I think these changes that we’re proposing are reasonable I really do. There are people who reach out to us on a daily basis, a weekly basis, they send us emails, and they love going to our city parks, and they are scared to go. … They matter, too. We need to listen to them as well. People are sometimes afraid of these [homeless] people. … Sometimes they, in one specific park I’m talking about, take over the area right next to the playground equipment. They take it; they’re very possessive. It’s true. That’s why people have sent emails, they have called me, and it’s important that we listen to them.
Violations of the ordinances could result in petty misdemeanor charges, fines up to $500, or jail time up to 90 days.
Links to quoted or relied upon news sources are here:
https://www.koat.com/article/city-of-albuquerque-bans-camping-in-public-spaces/63218693
https://citydesk.org/2024/city-council-tightens-the-screws-on-encampments/
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 public 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 Republican 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 Republican 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 Democrat 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 Republican 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
Enactment of the amendments to the Parks Ordinance and the Public Camping Ordinance come at the end of a year when the Mayor Keller Administration has tried to strike a balance between helping the homeless community and responding to the concerns of many constituents and business owners. Mayor Tim Keller must now decide whether to sign the proposals into law. A city spokesperson says the mayor is still reviewing them.
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, now that they have been enacted. As it stands under existing law, unhoused squatters or campers can be cited with criminal trespassing, unlawful use of public property, interference with sidewalk usage and street rights of way and unlawful nighttime camping in public parks, but not arrested as per a federal settlement on jail overcrowding. Notwithstanding, the city has an aggressive encampment clearance policy.
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 for other crimes 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.”
The links to two related blog articles are here: