Municipality says Cuddy Park camp clearing cuts legal muster because of public safety risks

The Municipality of Anchorage is moving to clear homeless campers out of a Midtown park in advance of a three-day music festival set to happen later this month.

The abatement is set to go forward Tuesday. Notices were first posted in the park on May 24.

The move has put some who track homeless policy and civil rights on alert, given that the city has no indoor shelter options available for people to go to as federal court rulings require.

But members of Mayor Dave Bronson’s administration say the move is legally justified because of concerns over public safety and obligations to honor permits issued months ago to festival organizers.

“Given the expected size and nature of the event as well as the fact that it has been permitted for alcohol, we believe having that many camps on or next to the event site represents significant safety concerns for all parties involved,” said the city’s homeless coordinator, Alexis Johnson.

Dozens of people have been camping in and around Cuddy Park since the city wound down the emergency shelter inside the Sullivan Arena more than a month ago. It’s one of several large encampments that have taken root around town, including in empty lots, community parks and throughout city greenbelts. With the clearing expected at Cuddy Park, the number of camps there appear to have thinned some in recent days.

But in the absence of a shelter for the homeless to go, municipal officials are legally barred from clearing camps unless they pose a dire risk to human safety or the environment.

That standard comes from a hugely consequential case decided by the 9th U.S. Circuit Court of Appeals in 2018, Martin v. Boise, which forbids local governments from punishing homeless people for sleeping, sitting, or resting on public property if there’s no reasonable alternative shelter option for them to go. Punishment, in the court’s ruling, looks to the Eighth Amendment of the U.S. Constitution barring excessive bail or fines that are disproportionate to the offense committed. That decision from a three-judge panel has shaped how municipalities from Anchorage to Los Angeles in the court’s nine-state jurisdiction are able to respond to homelessness.

A separate federal case from Oregon decided in 2020, Blake v. Grants Pass, says that homeless individuals are allowed to take “necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.” What constitutes “necessary minimal measures” is different from place to place: It is significantly warmer and drier in Southern California than in Anchorage. The decision, though, establishes people have a right to protect themselves from the elements when circumstances beyond their control deprive them of indoor shelter.

Given the dearth of shelter options in Anchorage, the municipality has largely not abated camps during the last few years. This makes the narrow, site-specific abatement signs posted around Cuddy Park an anomaly that left even those working closely on homelessness policy scratching their heads.

“No one has clarified for me how this is legal,” said Assembly Member Felix Rivera, who represents the Midtown district that’s home to Cuddy Park and chairs the Housing and Homelessness Committee.

Rivera said he was given a heads-up that the abatement notices would be posted. But he has not seen a clear policy put forward by the municipality’s legal department explaining its rationale for telling campers at Cuddy to move while leaving all the others in different parts of town alone.

“I have been emailing for some weeks now to ask for clarification on camp abatement and it just hasn’t happened. So my sense is that the municipal attorney and Department of Law are just being super careful about what policy they come up with,” Rivera said.

The Alaska chapter of the American Civil Liberties Union is also paying attention. The organization has challenged the city in the past over abatement policies that have infringed on people’s civil rights and insists that under Martin v. Boise the decision to close down the shelter inside the Sullivan Arena curtails the municipality’s ability to kick people out of public property, including parks.

“Anchorage has vastly insufficient options for its unsheltered population, and yet the city is attempting to abate this camp,” said ACLU of Alaska Legal Director Ruth Botstein.

On Monday, Botstein filed paperwork on behalf of 13 campers planning to appeal the abatement in court, which could pause the proceedings Tuesday.

But the municipality sees a narrow legal path for demanding people leave Cuddy Park by Tuesday and is in the process of refining its overall policy for abating encampments and storing peoples’ possessions.

“Boise v Martin does not prohibit us across the board from closing some spaces to camping,” said Assistant Municipal Attorney Jessica Willoughby during a May meeting of the Assembly’s Housing and Homelessness Committee. “The administration started the conversation of what would a policy change look like to continue and slightly expand the stretch of abatement, understanding that we are not going to close all public spaces to camping.”

Municipal Attorney Anne Helzer did not respond to an interview request for this story.

At the May committee meeting, Helzer told the Assembly that the municipality is doing its best to thread the needle on protecting homeless campers’ constitutional rights while also minding “urban cleanliness and livability” in application of the law. The Martin v. Boise ruling, she said, is misunderstood and “fuzzy” on specifics, she said.

“It’s not a flat prohibition on the municipality’s ability to abate when there is no shelter space, but it’s also sort of unclear what the nuances are there,” Helzer said.

Exceptions do exist in the municipal code for expedited camp clearing. For example, if a person is living in the middle of a sidewalk and hindering access for others, or tenting in a median with fast-moving traffic zooming past, or, as has happened in recent years, dry conditions make the risk of open flames in encampments igniting a wildfire especially high.

“The municipality also continues to abate in areas where ... circumstances posing a serious risk to human life and safety exist no matter shelter availability,” said Johnson, citing a subsection of the Anchorage Municipal Code spelling out when camps can be abated without prior notice.

In the case of Cuddy Park, notices went up roughly two weeks before campers were told they had to be gone.

The city, Johnson said, accepted $25,000 in permit payments from the music festival organizers months ago, when the Sullivan was still open and there were no encampments in Cuddy Park.

“Because this concert was permitted prior, we have a legal obligation,” she said.

The permitted event means the park is technically closed to the general public, which touches on another exception within the abatement protocols that makes the Department of Law surer of its footing.

“Cuddy Park is being abated because the park is being closed for a concert,” wrote Bronson spokesman Hans Rodvik in response to detailed questions for the city’s legal department. “The municipality remains committed to keeping green spaces safe for all users. The MOA will continue to abate prohibited camps that pose a serious risk to human life and safety, on public land that is closed to the public, and where the MOA needs to ensure (Americans with Disabilities Act) access.”

Organizers and the city anticipate thousands of people coming to the festival during its three days, Johnson said. Liability is a huge issue. Thus, the legal rationale goes, there exists a “significant safety concerns to all parties involved” that justifies telling people they have to move their camps out of Cuddy Park without extending the same demand to encampments scattered through neighborhoods, near businesses, or in other parks, according to Johnson.