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Judge: Eviction Use Overzealous

By Scott Sandlin
Copyright © 2011 Albuquerque Journal
Journal Staff Writer

          A federal judge's ruling that the city has engaged in overzealous enforcement of its nuisance abatement ordinance — resulting in the eviction of some residents without a hearing beforehand — means Albuquerque is now on the hook for damages.
        U.S. District Judge James O. Browning found the city had failed to show sufficient evidence about whether the code violations in the challenged cases demonstrated an immediate danger to the lives and safety of the occupants — enough to turn people out of their homes without a warrant.
        City cleanup using code enforcement was a hallmark of the administration of former Mayor Martin Chávez.
        "Really, what the problem is, oversight and supervision of this unit at the senior management levels was atrocious," said city Chief Administrative Officer Rob Perry. "That's what permitted this to occur."
        Plaintiffs' attorney Joseph Kennedy said city inspectors believed that since they are allowed to shut down drug labs found in homes under the Drug Lab Ordinance and force owners to get the property tested, they could also evict people based on a "suspicion that anyone was possessing or was using drugs in the house ... because they surmised it was the same sort of danger."
        Browning granted partial summary judgment in favor of a class of residents who had sued the city in 2009.
        Joe and Shannon Kennedy sued on behalf of Kevin Lowery and others, a class that they estimate includes roughly 200 individuals or families.
        The case is set for a trial on damages and remedies starting Monday, but Perry said the city hopes to resolve issues before that and may agree to a settlement.
        Perry said the city has retrained city code inspectors and made other changes, including making code enforcement more independent of the police department.
        "We made these changes about 9-10 months ago as we were litigating this case and we were realizing what had actually been taking place under the prior administration and management," he said.
        The lawsuit said that in addition to immediate eviction, each of the plaintiffs was ordered to conduct costly testing and cleaning of the home before they could re-enter.
        Lowery, the lead plaintiff, alleged the nuisance abatement team entered his property without his consent and that he was handcuffed to a pole in his backyard while they searched and seized his property.
        But Browning's opinion said neither the drug code violations nor the nondrug code violations established emergency or "exigent" circumstances justifying a search or seizure of property without a warrant or a hearing.
        In one case, for instance, Browning found the notice and order issued by the city required the resident of a home to fix or install smoke detectors in each sleeping room, recharge fire extinguishers, remove outdoor storage and litter and all inoperative vehicles as well as animals from her property.
        "... The statements in the affidavit regarding the danger posed by the violations are not supported by the notice and order," Browning's opinion and order said.
        He found the city has posted notices prohibiting residents from entering any part of the home, "even when evidence of possible contamination was found only in certain rooms ... Plaintiffs were prevented from entering their homes immediately upon a finding that the building was substandard."
        How long they were kept out depended on how quickly they filed an appeal or hired an environmental firm to complete testing and remediation, without which they were barred indefinitely.
        Perry said Tuesday that the city is now providing notice of appeal on all the orders, "so we have uniform notices and orders.
        "We are taking quite a few remedial measures to improve the supervision oversight and process of how we do the issuance of these noncompliance with standards (orders) and displacements — the evictions, basically," he said.
        Perry defended the work of police and code enforcement officers, and said the high-profile evictions that generated headlines and TV coverage weren't necessarily sound policy.
        "Here's the reality: (They) weren't lawyers, but you know what? The former public safety director was, and the former mayor was. And they have to take a certain responsibility for the policies they implemented," he said.
        Pete Dinelli, public safety director in the Chávez administration, said it would be inappropriate to comment on the judge's ruling, but he said the nuisance abatement program "stands on its own merits."
        "I think it was probably the most effective program we've had to combat meth labs in the Albuquerque area. There was a dramatic decline," he said, noting the number of labs decreased from 90 to a half dozen over a four-year period.
        He said the number of meth labs had reached "epidemic proportions" that needed to be addressed in an aggressive manner.
        "I think accomplishments of the strike force greatly outweigh downside to actions that we took," Dinelli said. "That program was on cutting edge of law enforcement and nationally recognized. I think Albuquerque would be in much worse condition today if we hadn't taken the actions we did.
        "To throw the program under the bus because of a judge's ruling I think would be a major mistake."

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