About a week before winter begins, New Mexico’s largest city is asking its highest court to strike down a judge’s order telling them to stop their yearslong practice of forcibly relocating unhoused off of outdoor public property.
The Albuquerque Police Department and the Solid Waste Department have continued the practice even after public health officials said clearing homeless camps accelerates the spread of SARS-Cov-2, the virus that causes the COVID-19 disease.
A group of unhoused Albuquerque residents sued the city in March, along with the New Mexico Center on Law and Poverty and the American Civil Liberties Union of New Mexico.
Second Judicial District Court Judge Joshua Allison concluded on Sept. 21 that when Albuquerque police use otherwise valid laws to criminalize someone on public property with their belongings, that it can amount to cruel and unusual punishment, which violates the Eighth Amendment in the U.S. Constitution.
Allison’s order bars Albuquerque officials from using criminal law to punish unhoused people who have no choice but to live outdoors, seizing their unabandoned property, and destroying that property without due process.
Arguing on the city government’s behalf Wednesday, John Anderson asked the New Mexico Supreme Court to vacate that order and to hand down “authoritative legal guidance.”
He argued that whatever protections the Eighth Amendment provides, it still doesn’t “bar the city of Albuquerque from enforcing laws intended to protect the public safety and welfare.”
New Mexico Supreme Court Chief Justice Shannon Bacon asked why the Court should not wait until a lower court makes a final ruling. Anderson, the city’s attorney, said the Eighth Amendment doesn’t allow unhoused people to sleep wherever they want, have limitless belongings, or stay in one place for an unlimited amount of time.
Allison’s order “represents a judicial mandate that the City surrender the vast majority of its outdoor public spaces to occupation by encampments of unhoused individuals,” Anderson argues in court documents filed on Oct. 6.
Martha Ellen Mulvany argued on behalf of eight unhoused Albuquerque residents who have been forced at times to live outdoors on public property because they have nowhere else to go.
She asked the court to deny the city’s request.
Mulvany said evidence shows there are more unhoused people in Albuquerque than there are emergency shelter beds, so the city government’s practices violate at least some unhoused people’s constitutional rights.
Anderson said Allison’s order doesn’t make clear what the city can and can’t do. State Supreme Court Justices David Thomson and Briana Zamora said they’re concerned the preliminary injunction is too vague.
“Does the city even know, based on his order, what is being enjoined? I can’t tell,” Thomson said. “I don’t know how the city would know what they can and what they can’t do based on this order.”
The question for an Albuquerque police officer is not what law to enforce, but instead whether the actions they believe are unlawful is instead merely someone’s status of being unhoused and existing with their belongings in a particular public place, attorneys for the unhoused people write.
Albuquerque can investigate further and offer someone a bed, Mulvany said. If someone refuses, “then the city can enforce its laws against that person for their presence on public property with their belongings,” she said.
Zamora asked Mulvany why the justices shouldn’t reverse the judge’s order until he can determine whether the unhoused people are being arrested for crimes or just being unhoused.
“There are a number of reasons but one, your honor, it is cold outside, and the injunction is designed in part to prevent the city from causing unhoused people to freeze to death when the city robs them of their tents, blankets and clothing, and to go without water, food and medicine when the city confiscates their other property,” Mulvaney said.