Q&A on enforcing ABQ's encampment policies - Albuquerque Journal

Q&A on enforcing ABQ’s encampment policies

Copyright © 2022 Albuquerque Journal

Concerns about unsanctioned encampments and homelessness have dominated City Council meetings, social media and other public discussions in recent months. Here’s a look at some of the questions frequently asked in those discussions and responses from the city.

Does the city already break up encampments?

Yes. City crews have completed 732 cleanups so far in 2022, according to data provided by the Solid Waste Department. The city ranks response based on potential hazards. It moves quickest on those where campers are obstructing streets and sidewalks, where police have observed felony drug or other offenses, or where campers are next to certain city facilities – like community and senior centers – or in parks that host organized children’s programming. It tries to disband those immediately, though there is a backlog.

“It’s less about outreach … and it’s like, ‘No, that is dangerous, and we’re not going to allow it,'” Mayor Tim Keller said in a meeting with Journal editors and reporters last week.

In other situations that don’t meet the above criteria, staff post notice giving campers 72 hours to relocate before they raze the site.

What happens to encampment residents’ belongings during a cleanup?

Whatever is left behind gets thrown away.

“After proper notice is given (72 hours), Solid Waste disposes of items left behind once folks have vacated the encampment,” city spokeswoman Ava Montoya said.

Are there available shelter beds for people who are now sleeping outside?

A recent city review on the night of June 20 identified 369 open beds across nine local emergency shelter sites.

But Family and Community Services Department leaders say that is not enough for every unhoused person in Albuquerque and that many are not truly open to everyone. Some may be just for families. The 140 at Joy Junction require clients to pass a criminal background check. And the bulk of the openings – 215 – were at the city’s shelter on the far West Side, a place many are reluctant to go because it requires a bus ride 20 miles outside of Downtown to an old jail and is not close to other services.

“There’s always beds available; the question is the barrier to use them,” Keller said, noting that the West Side shelter is “essentially putting people on an island.”

If there are open shelter beds, could the city make a person who is homeless go there?

No, because they have rights. If a person does not want to go to a shelter, the city cannot force them into one.

“Like anything else, whether it’s (the police) or another city department, if somebody doesn’t want to go, we can’t just put them into a vehicle and take them somewhere they don’t want to be,” Kevin Morrow with the city legal office told the council June 22. “That operates as a de facto arrest and that would not be permitted by the courts.”

Why is the city not arresting people for trespassing and sleeping illegally in parks?

City officials have mentioned a number of factors, including the U.S. Constitution – which protects against unreasonable property seizure and against cruel and unusual punishment – the city’s 2017 settlement in the federal McClendon lawsuit, Albuquerque’s loss in a court battle over an ordinance intended to curb panhandling, and a federal court ruling in a lawsuit alleging Boise, Idaho’s enforcement of local ordinances barring sleeping in parks and other public places violated the constitutional rights of people who are homeless.

How does McClendon come into play?

To exit the longstanding McClendon lawsuit – which centered around overcrowding at the local jail – the city in 2017 agreed to revise the police department’s arrest procedures.

The policies had to make clear that “persons alleged to have committed non-violent misdemeanor offenses (not to include DWIs) will not be arrested when there are no circumstances necessitating an arrest,” according to the settlement agreement, which also required the police have directives not to treat people who are homeless differently.

“Whether a person has a permanent address may not be the sole factor in determining whether to arrest rather than issue a citation,” the agreement says.

Offenses often associated with encampments – trespassing, loitering and drinking in public – are misdemeanors.

Albuquerque Police Department Deputy Chief Josh Brown said the city could still make arrests for misdemeanors, but intervention has to start at a far lower level. So far this year, according to an APD spokesman, the city has made 1,011 misdemeanor arrests and issued 542 misdemeanor citations and 1,767 misdemeanor summons (similar to citations), though that is citywide and not specific to encampments.

 

But what about felony violations happening in encampments?

Brown said police can – and do – arrest people for the most serious crimes happening in parks and encampments.

“The felony crimes occurring in public property, in parks – those are being arrested for: narcotics, violent crimes, possession of firearms. … Our officers have never not arrested for those and we arrest for those on a weekly basis,” Brown told the council.

How is the Boise case relevant to Albuquerque?

The 9th U.S. Circuit Court of Appeals ruled in 2019 that a municipality cannot “criminalize” sleeping outside “when no sleeping space is practically available in any shelter.”

New Mexico is not part of the 9th Circuit’s jurisdiction.

The city of Albuquerque’s lawyers say it may not directly bind Albuquerque but would likely surface in any potential lawsuits the city might face if it tried something similar to Boise.

“It’s instructive, not binding, but it’s an indication of a similarly sized city with a similar problem they’re trying to address and they ended up spending a substantial amount of money trying to litigate that,” Morrow told the City Council in June.

What is the city’s track record in such lawsuits?

Keller often has cited the legal risk the city could face if it makes homelessness a crime, specifically noting Albuquerque’s ill-fated Pedestrian Safety Ordinance.

The ordinance would have severely restricted panhandling, but the American Civil Liberties Union successfully sued the city. A U.S. District Court judge ruled that most of the ordinance was an unconstitutional restriction on free speech. The city appealed and lost. The city had to pay $375,000 to cover the plaintiffs’ attorneys fees and other legal costs.

Councilor Dan Lewis has argued the pedestrian safety case is “irrelevant” to how the city handles encampments.

But City Attorney Lauren Keefe said she considers it germane.

“Even though they’re different legal issues, there is an overall sense of courts limiting what cities can do on these issues in order to protect constitutional rights,” she said.

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