Ahead of a special legislative session focused on public safety later this week, local and state lawmakers have their eyes on the impacts of a recent US Supreme Court ruling that allows cities to criminalize sleeping or camping in public areas.
In a 6-3 ruling from the court June 28 in City of Grants Pass v. Johnson, justices reversed the decision of two lower courts and ruled restricting people’s ability to sleep or camp in public did not violate protections against “cruel and unusual punishment” guaranteed within the Eighth Amendment of the Constitution.
State lawmakers discussed the ruling July 16 during a Courts, Corrections and Justice Committee meeting. Sen. Antoinette Sedillo Lopez, D-Albuquerque, said though it “sets the floor” to criminalize certain conduct, it doesn’t mean policymakers have to do so.
“In fact, it would probably be better policy to stay away from this area,” she added.
Sen. Greg Nibert, R-Roswell, asked consultant Megan Dorsey what cities and counties are supposed to do “to deal with the issues that they’re facing with these unhoused encampments that are sometimes ratty.” The consultant referenced the majority and dissenting opinions, which offered suggestions including expanding housing opportunities; investing in mental health and developing outreach programs.
Nibert noted “most or many” New Mexico cities are surrounded by public land and offered another alternative with the help of the federal government.
“I wonder if the communities could designate some place outside of their normal parks and things as a place where people could go and set up tents there or camps because it seems the people I deal with are concerned about the impact that this type of activity is having on the residents of that area—people who own homes,” he said. “This is a difficult issue that I know counties and cities are particularly struggling with. I don’t know that we as a state are providing much help, but somehow we have to come to grips with this and figure out solutions. We can’t have the problems that we’re having to face and just rely on each community to do it.”
Yet others noted relocating people experiencing homelessness fails to reach the root causes of the problem. Sen. Antonio Maestas, D-Albuquerque, said even solutions to root causes are unfavorable.
“We have to look ourselves in the mirror as a state with regards to the lack of housing,” Maestas said, noting opposition from residents regarding housing development in both Santa Fe and Albuquerque. “While I agree with the wants and desires of those folks, we have to put our personal wants and desires as what we perceive as perfection aside to overcome generational poverty…We cannot tie up the building of housing.”
Dorsey, who gave a brief overview of the case’s history prior to comments, noted the SCOTUS decision in favor of the Oregon city was based solely on the Eighth Amendment, meaning “similar ordinances may still be subject to attack under other constitutional provisions,” including the First Amendment and due process clauses.
Gov. Michelle Lujan Grisham’s special session agenda includes a bill that would prohibit loitering on medians 36 inches or less in width in areas where the speed limit is 30 miles per hour or more. A similar ordinance in the City of Santa Fe—which some have characterized as unconstitutional criminalization of homelessness—is slated for a vote during a special governing body meeting July 17.
Mayor Alan Webber tells SFR he disagrees with the US Supreme Court’s ruling.
“I see many problems with the decision,” Webber says, some of which “involve negatively affecting the public perception of what it means to be homeless and suggesting the solution is incarceration.”
While the City of Santa Fe prohibits encampments on public property, the mayor says the distinction is in how it’s handled. Rather than a jail penalty, park rangers; alternative response units and other resources are “designed to try to relocate people to a safe sleeping area,” he adds.
Webber’s administration also issued an emergency proclamation deprioritizing the clearing of encampments during the pandemic. That ended in June 2022, when the existing ordinance was reinstated.
“The ordinance is not meant to make life miserable for homeless people,” he says. “It’s to protect people who have legitimate business and property rights but to also get people to realize that camping outside isn’t the safest option.”
The city will continue to implement the ordinance, Webber adds, but his administration “mostly committed to trying to find more options for people” in the meantime.
“If somebody is desperate for a place to stay, I think we are currently in a place where we can find them a place to stay,” he says. “Not necessarily what they want or even a medium-term solution but enough to get them off the street for the night.”