'The concrete hasn't set': NM Supreme Court to weigh in on city's homelessness injunction

SANTA FE — The New Mexico Supreme Court is pondering an injunction that prohibits the city of Albuquerque from forcing homeless people to move their encampments on public property and seizing or destroying their belongings.

On Wednesday, the court held a hearing to decide whether the temporary injunction should be lifted. The court decided to wait before issuing a decision.

In 2022, a group of unhoused people in Albuquerque filed a lawsuit against the city, alleging they’d been stripped of their rights by city employees. A trial date is set for August .

At the heart of the injunction — and the original lawsuit against the city — is whether the city’s sweeps of homeless encampments violated the constitutional rights of unsheltered people in Albuquerque.

The two rights cited in the injunction were the Eighth Amendment, which prohibits cruel and unusual punishment, and the Fourth Amendment, which protects people from unreasonable search and seizure.

The injunction, put in place by state District Judge Joshua Allison, claims that keeping homeless people, who aren’t committing any other crime, from camping on public property — without other shelter provided — punishes homeless people for their “mere presence.”

The injunction went into effect Nov. 1.

On Wednesday, some justices questioned the scope of the injunction, and whether the city was banned from enforcing any laws — such as those prohibiting drug use or public defecation — against unhoused people, beyond just laws that prevent camping on public spaces.

The city filed a motion asking for clarification in District Court.

“I don’t know how the city would know what they can or can’t do,” Justice David Thomson said.

But Chief Justice Shannon Bacon interpreted the injunction to apply only to laws preventing homeless people from merely camping on public property. The justice noted that some of the language in question, including how to determine if a person’s camp posed an immediate threat or hazard, is included in the city’s ordinances on handling encampments.

“I’m really curious as to what the city is so befuddled by,” Bacon said.

Justice Briana Zamora said she wasn’t concerned about the application of the Fourth Amendment, and the requirements around the seizure and destruction of property. But she was uncertain if the cruel-and-unusual punishment standards were warranted.

“Why does the Eighth Amendment even apply here?” Zamora said. “If I’m housed, and I trespass, it’s a violation. It’s the conduct, not the status (of homelessness), that’s being prohibited.”

The injunction cites a dearth of shelter beds, stating that there are more homeless people than available beds in the city. Last year’s Point-In-Time count, which captures the number of people experiencing homelessness on one night in January, found almost 2,400 unhoused people in the city. Organizers estimate the number to be a massive undercount.

But Justice Michael Vigil asked whether there were available shelter beds in the city.

“We’ve never been in a situation where those beds are full,” said John Anderson, the attorney representing the city. “We have never been in a situation where the WEHC (Westside Emergency Housing Center) is turning people away because of a lack of beds.”

Last week, more than 150 beds were vacant at the Westside shelter.

But Bacon said those beds might not be “available in a meaningful way.” For example, people without cars or other transportation might struggle to access the site, she continued.

If indoor shelter is unavailable for these people, “where else can they be?” Bacon said.

Scott Yelton, a plaintiff in the lawsuit against the city, said when he became homeless in 2019 — the first time in his life — he initially stayed at the Westside Emergency Housing Center. But he said he felt safer living on the street than in the shelter.

Later, while staying in Coronado Park, he tried to get a housing voucher but waited for months with no update from his case manager.

“There’s homeless people that don’t want to be homeless,” Yelton said. “Like me.”

When his encampments were swept, Yelton said he lost important belongings, including his birth certificate, his Social Security card, clothes and sleeping bags.

While it was “a pain” to replace some of those items, he said the worst losses were family photos.

“There’s no replacing that stuff,” Yelton said. “That’s really what hurt the most.”

Yelton is now housed, after receiving an emergency housing voucher.

Martha Mulvany, representing the lawsuit’s plaintiffs, a group of unhoused people , said given the number of homeless people and the number of shelter beds in the city — about half the number of people counted in the PIT — meant at least some people would be homeless not by choice, but by circumstance.

And under the injunction the city still is allowed to move people, with notice, if they refuse beds, Mulvany said.

The city of Albuquerque will attempt to clarify or modify some of the requirements of the injunction during a District Court hearing set for Jan. 12.

Given the close date, Bacon had a simple question: “What are we doing here today?”

Anderson said the January hearing would only be “nibbling at the corners” of the injunction but would not address broader issues with the injunction, requiring a Supreme Court opinion.

But Bacon said the injunction still could change.

“The concrete hasn’t set,” Bacon said. “That really troubles me.”