Hearing starts to clarify, potentially change, injunction against City of Albuquerque

A state court hearing intended to clarify, and potentially modify, the terms of a temporary injunction limiting the clearing of homeless people from public property by the city of Albuquerque is underway.

The injunction was issued last year in response to a lawsuit filed against the city, alleging that city employees had violated the constitutional rights of homeless people living in Albuquerque. It took effect Nov. 1. The proceedings began Friday morning at the Bernalillo County Courthouse and will continue next week.

In the injunction, 2nd Judicial District Judge Joshua Allison wrote there are not enough shelter beds in Albuquerque to house all the homeless people in the city — a statement he revisited Friday morning, calling it an “undisputed” fact.

The most recent Point-In-Time count — an annual count of all the people experiencing homelessness on one night in January — identified nearly 2,400 individuals, although organizers say it is likely an undercount.

Allison said there was a possibility of dramatically limiting the injunction to bring the case to trial. But he rejected the idea of striking the injunction completely.

“I’m telling you, I’m not undoing the injunction,” Allison said.

In December, the city of Albuquerque asked the New Mexico Supreme Court to weigh in on the injunction. Instead of immediately issuing an opinion, however, the court decided to wait for the outcome of the now-underway District Court hearing.

The state’s highest court called on Allison to point out specific ordinances and statutes the city is prevented from enforcing and further explain the scope of the injunction.

City attorneys questioned Allison to that end, asking if they could, for example, ask people camping in public parks to move for park maintenance or other park events. If tents are allowed in public parks, attorney John Anderson said, would the injunction allow someone to erect a tin shack or other permanent structure?

“Where’s the line?” Anderson said.

Allison responded that it could depend on the location, traffic in the area and other factors — so long as the city is acting in “good faith” in setting time, place and manner of restrictions to camping, or determining if a person was posing an immediate threat with their location.

He added that the original injunction doesn’t prohibit keeping outdoor spaces “clean, safe and healthy.”

“The balancing is that folks have to exist and be someplace, and they have to be able to leave their property someplace when they go to the bathroom,” Allison said.

Martha Mulvany, one of the lawyers representing the plaintiffs — a group of unhoused people — said the city has to offer “ample alternative locations” if asking someone to move from public property.

Ultimately, Mulvany said continuing the hearing next week would give the city enough time to draft a proposal of time, place and manner restrictions the city would like added to the injunction.

“I think it would be helpful for us to start to get a sense of what kinds of restrictions that the city wants, and how it would support them,” Mulvany said.