On Sept. 21, District Court Judge Josh Allison issued 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 enjoined the city from seizing and destroying homeless belongings and mandates a warrant and post deprivation hearings regarding personal belongings seized.
The case was filed by the American Civil Liberties Union against the City over the closure of Coronado Park. The Plaintiffs allege they were displaced from Coronado Park when the city closed it on August 17, 2022 and that the city did not give proper notice nor provide satisfactory shelter options. The city says it did give notice, offered shelter and services, including housing vouchers, that were declined. According to an ACLU, the lawsuit was filed to stop the City from destroying encampments of the unhoused all over the city, seizing and destroying personal property and jailing and fining unhoused.
The closure of Coronado Park was absolutely necessary. The city had no choice but to close it. Over 3 years, crimes involving the homeless spiked at the park including murder and rape. In 2020, there were 3 homicides at Coronado Park, in 2019, a disabled woman was raped, and in 2018 there was another murder. APD reports that it was dispatched to the park 651 times in 2021 and in 2022 at least 312 dispatches and over 400 calls up and until its closure in August. There were 6 stabbings at the park over 2 years and in 2022 APD seized from the park 4,500 fentanyl pills, more than 5 pounds of methamphetamine, 24 grams of heroin and 29 grams of cocaine.
The Albuquerque Police Department is under a court approved settlement in the federal lawsuit of McClendon v. City of Albuquerque involving jail overcrowding wherein the city agreed not to make arrests for nonviolent crimes, such as trespass on public and private property, illegal camping on all city parks and streets, rights of way, alleyways and open space to prevent jail overcrowding. APD is relegated to merely encouraging or telling the homeless to move on and camp elsewhere with no arrest and taking them to jail. Judge Allison is now enjoining such conduct.
The injunction usurps and interferes with the city’s right to take necessary action to protect the public health, safety and welfare with the enforcement of public safety laws, both state laws and city ordinances. Judge Allison has essentially ruled the unhoused, because of their status and because there is insufficient housing available and offered by the city, they have the right to violate the law and illegally camp wherever they want for how long as they want without government interference or threat of arrest. While Judge Allison says “the City is not constitutionally obligated to provide housing for homeless people” he rules the city cannot “threaten” to enforce the laws against the homeless until the city provides sufficient satisfactory shelter and housing to all implying the city is not doing much of anything.
The city has increased funding 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. In the 2023-2024 budget, the City Council added $48 million to address housing and homelessness issues in Albuquerque. The city expends upwards of $8 million a year to operates 2 homeless shelters. Over two years the city will be spending upwards of $100 million to help the homeless or near homeless.
The City has the responsibility to enforce criminal laws on behalf of its citizens, be it felony or misdemeanor. The City cannot simply ignore laws that have the purpose of preserving and protecting the public health, safety and welfare of its citizens. Unlawful encampment homeless squatters who have no interest in any offers of city shelter, beds, motel vouchers or alternatives to living on the street and who want to camp at city parks, on city streets in alleys and trespass in open space give the city no choice but to take action and force them to move on. Judge Josh Allison’s injunction now prohibits the city from instructing the homeless to move on labeling it a “threat of an arrest” that will never happen because of a federal jail overcrowding case.
The Bernalillo County Sheriff’s Office should arrest the homeless for misdemeanors that APD cannot nor will not make arrests on and the District Attorney should start prosecuting those cases.
Pete Dinelli is a native of Albuquerque. He is a licensed New Mexico attorney with 27 years of municipal and state government service including as an assistant attorney general, assistant district attorney prosecuting violent crimes, city of Albuquerque deputy city attorney and chief public safety officer, Albuquerque city councilor, and several years in private practice. Dinelli publishes a blog covering politics in New Mexico: www.PeteDinelli.com.
