ABQ City Council makes it a crime to loiter or camp near drainage ditches, citing drowning risk

Councilor opposed fears the bill contains a “loophole” that will criminalize homelessness

By: - August 4, 2022 5:06 am

A storm gathers over the North Diversion Channel in Albuquerque on June 2. (Photo by Patrick Lohmann / Source NM)

The Albuquerque City Council this week approved a measure criminalizing camping or loitering along the city’s diversion ditches, an effort they say will cut down on drowning risk to the public and first responders.

In 2021, four people who “domicile or loiter in stormwater channels” drowned, according to a report reviewed by the Albuquerque City Council that was produced by Ditch Safety Working Group, a multi-agency task force. In the last five years, 12 people have died, according to a flood control official. 

Water channels throughout Albuquerque divert runoff during monsoon rains. In big storms, the often-dry drainage ditches fill quickly with water that can rise onto trails used for walking, cycling or by those without shelter. The channels can fill with water within two minutes and send water at speeds up to 35 mph, according to the report. 

The legislation, if signed by Mayor Tim Keller, would create a new crime punishable with a $500 fine or 90 days in jail. It also would authorize arrest for those who violate it, so long as a person charged first ignored a written warning from a police officer or, “in case of immediate danger,” a verbal warning. 

The new law makes it a trespassing crime to camp or loiter upon any part of the right-of-way owned or maintained by a public agency. It also makes it a crime to remain in those areas after having been instructed to leave. 

The bill passed 8-1 during a Council meeting Wednesday.

It was one of two bills during that meeting aimed at addressing ramifications from housing shortage in the city, one that has left many people without shelter and forced them to camp in public parks, sidewalks or along irrigation ditches. 

The other bill would impose a one-year ban on the creating of city-sanctioned encampments. It comes after Keller announced the closure of a park that now houses about 100 unsheltered residents. The bill will be considered in a couple of weeks. 

Willie West, real estate manager for the Albuquerque Metropolitan Area Flood Control Authority, said involving police in clearing the channels of people was a necessary step, but he stressed it will be a last resort. 

“Folks were absolutely refusing to leave the facilities and they were being swept away,” West told Source New Mexico. “The only way to protect them is to make it enforceable for an officer to remove them from the facility.”

The legislation is also intended to prohibit the use of off-road vehicles in ditches or along their banks. 

West said he hopes arrests will rarely be necessary, but there is no other way to reduce drownings and reduce risk for firefighters or other first responders. There were 26 water rescues called out in the last five years, he said. 

“We had an incident on Monday where a person wouldn’t leave the facility with the water in there. (Albuquerque Fire and Rescue) cannot do anything about it. So the guy slipped and fell and they had to go rescue him,” he said. 

Klarissa Peña, the only city councilor who voted against the measure, told Source New Mexico she was worried the legislation would be used to criminalize homelessness. She fears police will invoke the law simply as a way to arrest people for camping by claiming there is an imminent flood risk. 

“It concerns me, because it’s just like a loophole around criminalization of the homeless,” Peña said. 

West said police and other first responders are made aware of flood risk through dispatch, typically via an announcement that originates from National Weather Service monitoring. But he said police have discretion to make arrests even without such an announcement because sometimes that flood risk is determined too late.

“You know how sometimes you get the (flood) alert about 20 minutes after the rain’s started?” West said. “We don’t have that time. The channels can fill up in less than two minutes.”

Peña said she thinks the legislation ignores the root causes of homelessness like addiction and mental illness. She fears legislation like this or others to come will make it possible for police to arrest unsheltered people in parks and public property across the city. 

The task force that compiled a report on the ways to reduce drowning risk spoke to 40 people camped out along the channel banks.

They surveyed people who were camping or loitering, according to the report. Thirty of them told the team that they knew of the dangers in the ditches and arroyos. Dangers they knew about included fast-moving waters and that May through October are the peak months for flash flooding. 

‘We’re stable here.’ Residents say ABQ’s Coronado Park provides what a shelter can’t.

The team printed a card to hand out to those in the channels, which includes a warning about the ditches and also directions to emergency and transitional housing. Most of the housing opportunities on the card are for women, families with children and victims of domestic violence.

The report says the new ordinance “strikes a balance” between prohibiting camping in storm water channels and “enforcing these prohibitions in a manner that does not criminalize being unhoused.” 

The legislation was introduced by Councilor Tammy Fiebelkorn. 

Separate from the legislation, Keller late last month announced he would be closing Coronado Park, where between 75 and 120 people live at any given time, sometime in August, but he and his staff are still working out logistics. He also said his administration is prioritizing getting rid of homeless encampments in parks where children’s programs occur and on sidewalks. 

The announcement was met with concern from some advocates for unsheltered people and from park residents themselves. Residents told Source New Mexico that the park, while sometimes violent, helps them stay connected with services and is much better than a crowded, jail-like shelter.

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Patrick Lohmann
Patrick Lohmann

Patrick Lohmann has been a reporter since 2007, when he wrote stories for $15 apiece at a now-defunct tabloid in Gallup, his hometown. Since then, he's worked at UNM's Daily Lobo, the Albuquerque Journal and the Syracuse Post-Standard. Along the way, he's won several state and national awards for his reporting, including for an exposé on a cult-like Alcoholics Anonymous group and a feature on an Upstate New York militia member who died of COVID-19. He's thrilled to be back home in New Mexico, where he works to tell stories that resonate and make an impact.

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