Attorneys say city using jail as 'homeless shelter'

On any given day last week, inmates at the Metropolitan Detention Center classified as “transient” outnumbered those with a home address.

Nine years after the city of Albuquerque agreed to adopt more of a noncriminal justice approach to dealing with homelessness, jail bookings of people identified as “transient” jumped from 3,670 in 2022 to nearly 12,000 last year, according to a recent court filing.

Those incarcerated typically don’t stay long. Usually they are arrested for failing to show up for court after being cited for misdemeanors such as criminal trespass or obstructing a sidewalk. But advocates say most shouldn’t be there at all.

“In our view, the city is using MDC as a temporary homeless shelter,” said Ryan Villa, one of the attorneys who contends the city and the Albuquerque Police Department have failed to live up to a 2017 agreement to remedy unconstitutional and unlawful practices affecting those living on the streets.

The city’s compliance is currently an issue before U.S. District Judge James Browning of Albuquerque, who oversees the class-action lawsuit filed in 1995 by plaintiff Jimmy McClendon, then an MDC inmate.

The lawsuit’s original goal was to prevent overcrowding at MDC, which has since moved from Downtown to the West Side. It houses defendants awaiting court and those serving sentences of up to a year.

An offshoot of the McClendon case led to a settlement agreement in 2017 after the city was accused of conducting street sweeps of people whom APD had referred to as the “homeless mentally ill,” court records show.

But last year the city asked to be released from the case. It contended the 10 requirements imposed by the settlement had been not only met but, in some instances, exceeded. 

One key remedy directed Albuquerque police to issue citations to nonviolent individuals accused of misdemeanors when circumstances didn’t call for an arrest.

“While the City intends to continue its programs designed to prevent unnecessary incarceration…it should be permitted to do so without judicial oversight, without remaining a defendant in a decades-long lawsuit, without the duty to pay attorneys fees whenever Plaintiffs believe they have grounds to complain about the City’s actions…,” stated the motion to dismiss filed in March 2025.

In a response filed last week, the plaintiffs’ attorneys contended the city has “turned back the clock” and resumed the “very same tactics” that led to the agreement.

“The City has significantly and openly increased criminal enforcement against nonviolent misdemeanants, particularly the unhoused and those with mental illness, and begun crowding the jail via the adoption of systematic practices and formal enforcement policies at odds with the Settlement Agreement terms and purpose,” stated Villa’s 30-page motion.

Priscilla Montaño has been shuffled between jail cells and the streets over the past year after citations during encampment sweeps escalated to missed court hearings and arrest warrants.

“They give us an option, either you go to jail or you go to a shelter,” the 68-year-old said in an interview Friday. “And they will arrest you right there and, then again, there goes everything that we have.”

Montaño said she lost belongings in the shuffle — a wedding ring, family heirlooms and, at one point, had to surrender her two dogs. She said she has received more than two dozen citations as the encampment teams appear to follow the homeless population as they move from place to place.

In the end, every one of the cases against her has been dismissed by prosecutors, the motions stating that “the State is declining prosecution at this time.”

“I get angry a lot because of how APD treats us and how the city treats us,” Montaño said.

Policy changes

The city hasn’t yet filed a response to Villa’s motion, but APD spokesman Gilbert Gallegos said Friday that while policies have been revised or updated regarding arrest procedures, they all still conform to the 2017 agreement.

He added that APD has committed more personnel to transport people experiencing homelessness to resources, such as services and housing at the Gateway Center complex.

Gallegos said the increase in jail bookings doesn’t necessarily mean the APD has stepped up enforcement.

“The city has responded to more encampment locations due to an increase in the number of encampments,” Gallegos said, “and complaints from the public about camping, roadways being obstructed, and sidewalks and businesses being blocked.”

Plaintiffs’ attorneys say the city so far hasn’t formally attributed the increase to the overall surge in the homeless population in Albuquerque.

“It is the city who has the burden to show that they have complied,” Villa said. “It has not presented any evidence between 2023 and now that is consistent with any increase in the population of homeless individuals.”

The motion under consideration by Browning states that in 2025, people were charged 1,256 times for obstructing sidewalks — nearly six times the number of cases in the previous eight years combined. 

The plaintiffs’ attorneys also say that city officials have initiated “tactical plans” for sweeping homeless people from the streets and have been arresting people for misdemeanors.

The city revised its encampment policy in February, which states that the city will provide notice before clearing the area where an encampment has formed, but “will take criminal enforcement action against those who refuse to leave the area or return to the encampment area after it has been cleared.”

In the revised policy, APD also isn’t prohibited “from taking any law enforcement action based on the conduct of any individual present at an encampment,” states the plaintiffs’ motion.

Gallegos said the revised encampment policy is meant to clarify protocols.

“It does not require criminal enforcement,” Gallegos said. “The city has procedures in place, in the form of this encampment policy, that spell out how the city’s handles most encampment calls.”

A city interaction team, composed of civilians, handles most calls, he said, adding that APD is present at a small percentage.

Lapel video from a July encampment sweep showed an officer warning Montaño to move down the block or she’s going to jail. A man tries to help her gather her belongings, which overflow from a shopping cart, before the officer tells the man to stop or he will be cited. 

Several minutes later, as Montaño struggles to roll the shopping cart out of the area with her two dogs in tow, the officer approaches again. He tells Montaño that he told her to walk four blocks down the street.

Now, he tells her, she’s going to go to jail. The officer says, “I gave you so much time to move” and she replies, “I was moving.” As police place her in handcuffs, Montaño tells an officer she has court today. He replies, “Oh, me too… See you there.”

‘Return to sender’

More recently, on Thursday, an Albuquerque police officer appeared to be following the policy while working on APD’s Encampment Team in the 8100 block of Central NE.

Court records state the officer noticed an unhoused woman named Cassandra standing on the sidewalk with a green, dismantled tent and a shopping cart containing clothing covered with a white bed sheet.

A check of an APD database showed the 42-year-old was a “repeat offender in the area,” according to the officer’s report. She had been contacted and cited by the Encampment Team approximately 21 times. Charges included obstructing the sidewalk four times in December, the officer’s report stated. 

Despite efforts by a city outreach team and the encampment team to provide resources, Cassandra “remained in the same area where she was cited,” according to the report.

So the officer placed her in handcuffs, conducted a full search, and charged her under a city ordinance that makes it unlawful to place articles, goods, wares or items on a sidewalk.

Cassandra was also charged with unlawful storage of property, obstructing the street right of way and criminal trespass. She was booked into MDC.

By Friday, she had pleaded no contest before a Metro Court judge and was sentenced to two days in jail, which she had already served, court records show. Cassandra was ordered released but couldn’t be reached for comment. A phone number listed for her mother was no longer in service on Friday.

Late last year, Montaño said, with the help of Albuquerque Community Safety, she was accepted into the Gateway Center. Montaño said she stayed at the shelter for 120 days and was then given a voucher to stay at a motel, the next step in her journey to finding a home.

But that step turned into a pothole, Montaño said, as the city informed her a week into her stay that — for reasons she did not know — the voucher had run out. She was back on the streets, back to the shuffle.

As the sun rose Saturday, Montaño sat alongside the Interstate 40 overpass with all of her belongings, the ones she has held onto, piled around her. She was waiting for the encampment teams to come, with their loudspeakers and dump trucks.

She didn’t want to go back to jail, and she didn’t want to lose anything else. With nowhere to go, she waited. 

Unbeknownst to Montaño, a warrant had been issued for her arrest in November. She missed a hearing after being cited for obstructing the street, a petty misdemeanor.

The hearing notices sent by the court — with no known address — had gone undelivered. A stamped on the envelope read: “Return to sender.”

Journal Staff Writer Natalie Robbins, Journal News Editor Matthew Reisen and Journal photographer Chancey Bush contributed to this report.