Jul. 27—Matthew Reisen
Dozens of homeless people gathered along First Street near Downtown Saturday beneath the shade of Interstate 40 as traffic roared above.
One of those taking shelter from the heat, Priscilla Montaño, known as “Mrs. P,” said she had been arrested multiple times in the past month by Albuquerque police for blocking the sidewalk.
In the last arrest, on July 17, the 67-year-old said she lost her wedding ring and a uniform that belonged to her grandfather, a Navajo Code Talker. Montaño and a few of her unhoused neighbors said city workers and police come every weekday morning.
They say officers issue warnings through a bullhorn — telling people to clear the area within 15 minutes — before making arrests and throwing away belongings, like tents, carts and whatever may be inside them.
“It’s devastating,” Montaño said of the sweeps, which have been happening for years. “I have to start all over.”
Back in March, a state district judge in Albuquerque bucked a controversial U.S. Supreme Court decision that gave cities the green light to enforce criminal laws against the homeless for living and sleeping outside on public property.
Judge Joshua Allison found the high court ruling was “flawed,” and concluded the New Mexico Constitution provided greater protections against such cruel and unusual punishment than the U.S. Supreme Court considered in its decision.
Now, the city of Albuquerque wants the state Supreme Court to reverse Allison’s ruling to prevent the “proliferation” of homeless encampments within the city and other municipalities and towns in New Mexico.
“We filed this appeal because we dispute the judge’s ruling. This is the only judge in the country to make this ruling, and we are the only city in America having to live under these rules,” a city spokesperson said in a statement Saturday. “The city will keep doing everything in its power to get people the support they need and to manage illegal encampments promptly. We will continue sending staff to conduct welfare checks at encampments and offer support services.”
The city of Albuquerque’s handling of what Allison has described as one of the most challenging social problems in the past 40 years — homelessness — is at issue in the three-year-old civil rights lawsuit pending in Allison’s court in the 2nd Judicial District.
Montaño was among the estimated 2,740 people living on the streets in Albuquerque last year, according to the 2024 count by the New Mexico Coalition to End Homelessness.
The lawsuit, filed by a group of eight current or previously unhoused individuals, contends it is unconstitutional to punish or threaten to punish unhoused people for the “crime of being in an outdoor public space when there are inadequate indoor spaces for them to be.”
The lawsuit was filed two years before the U.S. Supreme Court in the Grants Pass vs. Johnson case concluded in June 2024 that the protections of the Eighth Amendment to the U.S. Constitution against cruel and unusual punishment do not prohibit local governments from enforcing certain ordinances against involuntarily unhoused people.
The Grants Pass ruling raised some of the same issues as the Albuquerque case, prompting Allison’s 10-page ruling.
The issues have “serious public safety implications, the district court’s decision flouts the U.S. Supreme Court’s recent guidance, and the City needs this Court’s direction in weighing how to enforce its laws…to resolve legal questions of statewide importance,” states the city’s petition for superintending control filed July 11 with the state Supreme Court.
“If allowed to stand, the district court’s decision will leave the City of Albuquerque and cities and towns throughout New Mexico, with no means to prevent the proliferation of encampments within their borders,” stated the petition filed by John Anderson, a Santa Fe lawyer who represents the city of Albuquerque.
Plaintiffs contend their claims aren’t made under the U.S. Constitution, so that Grants Pass is not controlling law.
They seek to bar the city from enforcing certain criminal laws against them because they violate the New Mexico Constitution, which plaintiffs argue provides them more protection than the U.S. Supreme Court determined was available in the Grants Pass case.
In his March 18 ruling in the Albuquerque case, Allison wrote that the plaintiffs are challenging what they say are the city of Albuquerque’s unconstitutional practices of relocating them — and involuntarily unhoused people like them — from “place to place, taking and destroying their belongings in the process.”
In its petition to the state Supreme Court, the city of Albuquerque contends that nearly two years ago, “a large group of cities and states put out a clear and forceful call” by asking the U.S. Supreme Court “to relieve them of the burdens imposed by a misguided interpretation of the Eighth Amendment by the Ninth Circuit Court of Appeals, which left cities unable to clear encampments from, or otherwise maintain order in, public property.”
Local governments, for example, wanted to enforce ordinances making it a crime to sleep on public sidewalks, streets and alleyways, camp on public property as a temporary place to live, or camp or park overnight in the city’s parks.
Back in Albuquerque, the plaintiffs allege that the city has intentionally deprived them, as involuntarily unhoused people, of the belongings they need to survive.
The allegations, if proven during the course of the case, would be “sufficient to demonstrate the City’s deliberate indifference” to the precarious existence of homeless individuals when they live outside, Allison wrote.
“Accepting Plaintiff’s allegations as true, as the Court must at this stage in the proceedings, the City’s alleged actions of destroying the means that homeless people need to survive outside, actions that are taken in the course of seeking to enforce criminal laws against homeless people, shock the conscience of the Court,” stated Allison’s ruling.
The case is still pending, and may be headed to trial, so lawyers for the city want a state Supreme Court ruling on the legal question before money is spent to defending the rest of the case, funds that could otherwise go to support housing and programs for homeless individuals, the city states.
The state Supreme Court, which may or may not take up the petition, asked July 21 for a response from the plaintiffs. An attorney for the plaintiffs couldn’t be reached by the Journal for comment on Friday.
The named plaintiffs are Ladella Williams, Scott Yelton, Sonja Garcia, Alonso Magallanes, Christina Garcia, Rickey Mauk, Sheri Gibson and Lance Wilson. Their attorneys are also seeking class action status.
Attorneys for the city say Allison’s “novel and unprecedented standard cannot stand.”
“The City simply does not know, at this time, when or how it can enforce its laws,” the petition states.
‘They see us as less’
Online court records show Montaño has been charged three times since July 1 with unlawful camping. The first time she was cited, but the last two ended with Moñtano in a jail cell.
Police said around 9 a.m. on July 8 officers told the unhoused gathered at First and Arvada to leave in 15 minutes “or they will be arrested,” according to court records. An officer detained Montaño and learned she had been cited a week earlier and also had a warrant issued for not proving her dogs were vaccinated.
Then, on July 17, officers were again at First and Arvada, telling the unhoused they needed to “leave the area and go four blocks from their location,” according to court records. This time, an officer gave the group five minutes to leave with their belongings, but Moñtano was still there when the time was up.
An officer wrote in charging documents that Montaño “refuses to vacate whenever being told to do so.” Court records show that each of those charges were dismissed the following day by prosecutors, saying “the State is declining prosecution at this time.”
On Saturday, Montaño said she wasn’t the only one shuffling between the streets and jail cells over the issues. She said, “they’ve harassed a lot of us.”
Amanda, who lives in her SUV near the I-40 bridge, said the encampment sweeps lead to more theft. She said most homeless people steal for clothing and food, not for drug money — though she acknowledged drug use was rampant.
She said the city should focus on humanizing the unhoused, provide portable showers and bathrooms, safe drug-use sites and maybe charging stations. Amanda considers herself “on the spoiled side of being homeless” due to having a vehicle but said the stigma still weighs heavy, like when you have to ask gas stations for leftover food.
Montaño said people regularly drive by and film them, then the videos pop up on TikTok or some other social media. “Like it’s a sideshow,” Amanda chimed in. “… They see us as less.”
Amanda said, rather than being shuffled around, she wished local leaders and the public would recognize the unhoused and their needs. Instead, she said, the population exists largely in anonymity and their lives often end that way.
“To die and not have someone notice — that’s terrifying,” Amanda said.