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Judge rules against ACLU request for temporary restraining order to block Mass. and Cass tent removals

Another hearing for the case is set for Nov. 29 in Suffolk County Superior Court. 

By Dialynn Dwyer

November 18, 2021

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A Suffolk County Superior Court judge on Wednesday denied a request from the ACLU of Massachusetts seeking a temporary restraining order to prevent the City of Boston from removing more tents from encampments around Mass. and Cass. 

The ACLU filed a lawsuit against the city earlier this month on behalf of three people experiencing homelessness alleging they were “driven out” from their temporary shelters under the threat of arrest by the city officials without being offered “viable” alternative shelter options when Boston began implementing new protocols aimed at removing encampments. 

The procedures, mandated in an executive order issued by then-acting Mayor Kim Janey in October, targeted the removal of the hundreds of tents established around the blocks of the city that have become the epicenter of the addiction, mental health, and homelessness crises in the region. Janey said the goal was to get people struggling with homelessness, addiction, and mental health connected with resources and services.

But the ACLU alleged in its lawsuit the city failed to meet the needs of individuals with the housing and shelter options offered, leaving unhoused individuals without a safe place to sleep. 

Under Janey’s executive order, the city stated unhoused individuals must be given at least 48 hours notice that tents must be removed. Officials said no one would be required to remove their tent unless they have been offered a bed in a shelter or another service. But under the mandate, officials said people who were offered placement and refused to remove their shelter could be charged with disorderly conduct.

City officials have said no one was arrested in connection with the encampment protocols. 

In her ruling on Wednesday, Judge Janet L. Sanders cited the fact that no one has been arrested in connection with the tent removals and that shelter beds are available as flaws in the ALCU’s argument for a temporary restraining order, GBH reports. The judge also said that the ACLU’s assertion that there is a “constitutional right” to a particular kind of housing is “further than any court has gone.”

Another hearing for the case is set for Nov. 29 in Suffolk County Superior Court. 

According to GBH, Sanders said the city still needs to work to improve the conditions for people who were displaced from Mass. and Cass. 

“This case has already received some attention,” the judge said. “What happens in the next 12 days is likely to receive the same public scrutiny. Indeed, those elected to represent us perhaps have the greatest interest in making sure that in this interim period, those at Mass. and Cass are treated with dignity and respect and afforded as much help as government resources.”

According to GBH, during the hearing on Wednesday the city’s attorney, Lisa Maki, told the court that officials are not implementing the encampment mandates as strictly as they are stated in the executive order. 

“You can have a tent on the sidewalk in the city,” Maki said, according to the Boston Herald. “When it’s noticed for removal and the protocol steps are followed and it’s still there, it’s subject to removal. It doesn’t say you can’t.”

The ACLU’s attorney seized on that assertion in a statement.

“The City’s attorneys represented to the Court in no uncertain terms that, notwithstanding the language of the executive order, people are in fact free to put tents up anywhere in the City of Boston where they need to be to keep themselves safe — unless and until they get another 48 hours’ notice, and that 48 hours has expired, and city workers come and help store their belongings and put them away so they’re safely kept,” Ruth Bourquin said. “That’s a very different message that was given to the Court than has been given to our clients. We want to make sure our clients know this because right now, they are on the streets of Boston, scared to even put a tent over their head to try to keep themselves safe. The City made clear they are free to put tents up and protect themselves in the streets of Boston.”

Before the hearing on Wednesday, Mayor Michelle Wu said the city is pausing tent removals at Mass. and Cass while the Suffolk Superior Court weighs the lawsuit. The new mayor said the team she convened to address Mass. and Cass will be working proactively to ensure Boston is bringing public health and housing lenses to addressing the humanitarian crisis in the area. Wu tapped Dr. Monica Bharel, the state’s former public health commissioner, to lead the city’s response to Mass. and Cass.

When asked on Wednesday if the city would resume removing encampments if the court ruled against the ACLU, Wu said “not necessarily.”

“I think across the board there is agreement that we need to take a public health lens and a housing lens to this crisis,” she said. “And how that actually ends up connecting with people’s experience on the ground matters a great deal. So we’re going to be looking at all of that — from the policy all the way down to what is happening on the streets.”

In her statement, Bourquin called on the city to continue its pause of tent removals and “not force people under threat of arrest to leave where they are unless and until they have a housing option that takes into account their disabilities and other barriers.”

After the judge’s ruling on Wednesday, the mayor’s office did not say whether the “pause” would be ongoing. 

“Particularly as winter approaches, already unsafe living conditions on the streets will only become more dangerous,” a city spokesperson said in a statement on Thursday. “Mayor Wu’s team, led by Dr. Monica Bharel, will be urgently working with regional and state partners to take a holistic approach to the public health and housing crisis near the intersection of Mass. Ave. and Melnea Cass Blvd., with a focus on expanding low-threshold and permanent housing, treatment and support services.”