ACLU files lawsuit against City of Boston to halt Mass. and Cass evictions

A Boston Public Health Commission worker takes down a tent Nov. 1 as the city works to clear out the encampment at Mass and Cass.Jessica Rinaldi/Globe Staff

City officials are unlawfully removing people from the Mass. and Cass encampment without identifying adequate housing options for them, often destroying their property in the process, said a lawsuit filed Thursday on behalf of the hundreds of unhoused people who’ve taken shelter there in makeshift tents.

The 30-page civil complaint was filed with the single justice of the Supreme Judicial Court for Suffolk County by the ACLU of Massachusetts and the WilmerHale law firm. It names Acting Mayor Kim Janey and other city officials as defendants.

The complaint seeks a preliminary injunction barring the city from continuing to displace people from the area or seizing their property “in violation of law;” an order requiring the city to allow people who’ve been moved from the encampment to return there, unless alternative housing options are available that meet their individual needs; unspecified monetary damages for three of the named plaintiffs whose property was destroyed; and an award of “reasonable” attorneys’ fees.

Janey, speaking to reporters during a City Hall briefing Friday afternoon, said she would not respond to ongoing litigation but that the city would comply with the courts.

“Our approach has been a public health approach,” she said, adding that the city first provides notice and also provides storage for people’s belongings.

“We are not asking anyone to remove their property their belongings or to move off the streets without first identifying a place for them to go that is appropriate,” she said.

That could mean treatment or a low-threshold bed.

“We are working hard to match the individual needs of the people who are living on the streets, living in tents, with the appropriate treatment and shelter options available,” Janey said.

She said as temperatures dip below freezing this week, city outreach workers have helped over 60 unsheltered individuals, referring them to inpatient treatment city shelters, transitional housing, and assistance back to stable homes.

Janey said some “… individuals have chosen to relocate to inpatient treatment and nearby shelters or homes of their origin.”

The lawsuit faults her administration’s ongoing efforts, launched last month, to clear the sprawling encampment near Massachusetts Avenue and Melnea Cass Boulevard and move the homeless population to shelters. But the shelters, the complaint says, aren’t viable options for many people living at the encampment, due to their medical and family needs.

“Congregate shelters not only generally require abstinence and prohibit the possession of controlled substances and harm reduction items — thereby effectively banning individuals suffering with active substance use disorder — but the congregate nature of such shelters is also often inconsistent with the needs of people with other physical and mental health disabilities as well,” the complaint says.

It also describes sweeps of the encampment that have taken place after Janey’s Oct. 19 executive order, which said, “Tents and temporary shelters will no longer be allowed on the public ways in the City of Boston.”

City officials at the time also said they wouldn’t force anyone to move without being provided an adequate alternative shelter. But such forced removals are exactly what has transpired, according to the ACLU lawsuit.

Following the executive order, the suit says, “the City and its agents began dispersing people encamped at Mass & Cass under threat of arrest, and destroying many of their possessions, contrary to basic constitutional guarantees.”

On Oct. 25, the complaint says, “the city ordered a large number of people to vacate their encampments at Mass & Cass despite being offered no alternative housing options other than being told to go to the Pine Street Shelter,” and officials made no effort to determine whether the shelter was “suitable” for people with various medical conditions.

The filing notes that the city has said people at the encampment with open warrants are subject to arrest.

Overall, the city’s taking a wrongheaded approach to the issue, Carol Rose, executive director of the ACLU of Massachusetts, said in a statement.

“We can’t sweep or arrest our way out of the intersecting crises at Mass. and Cass,” Rose said. “This plan is harmful and unconstitutional because it forces people to disperse with no safe place to sleep, while disconnecting them from the medical care they are able to receive at Mass. and Cass. Indeed, it’s inconsistent with city assurances, public safety, and the law.”

In recent months, a tent city has sprung up by the busy intersection near Boston Medical Center, close to where the South End, Roxbury, and Dorchester meet. While Mass. and Cass has long had a homeless population and been a hub of social services, the number of tents has grown throughout the year.

The area is currently an open-air narcotics market, where multiple overdoses are a daily reality, and reports of street violence and sexual exploitation are commonplace. At least two tent fires have been reported in recent weeks at Mass. and Cass, and there have been at least six homicides within a half-mile radius of the intersection this year.

Janey, in announcing her executive order, told reporters that the city “cannot let our most vulnerable residents continue to suffer in these encampments.”

Officials said at the time that the city would establish a command structure to bolster street interventions and create a new protocol barring municipal employees from removing a homeless person from their encampment on public property unless there’s shelter available.

If all the steps in the protocol are exhausted, officials have said, and someone still refuses to remove their encampment, their refusal could be considered disorderly conduct, which is a criminal misdemeanor, meaning they could be subject to arrest.

The protocol, however, is lacking, according to the ACLU lawsuit. Kevin Prussia, a partner at WilmerHale, the law firm working with the ACLU, said in a statement that the threat of criminal prosecution is making the homeless population in the area less safe.