Is Mass And Cass Forcible Removal Legal? Here's What Our Expert Says

Boston’s Acting Mayor Kim Janey unveiled an executive order last week to grapple with the rampant drug use and encampment of homeless people along the intersection of Massachusetts Avenue and Melnea Cass Boulevard Monday, commonly known as Mass and Cass, in Boston. Janey called the situation a “public health crisis,” and among other things, the plan involves the forced removal of tents and other property from the area.

Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined Henry Santoro on Morning Edition to discuss the legal issues. This transcript has been edited for clarity and length.

Henry Santoro: Does Kim Janey have the law on her side in issuing an executive order like this?

Daniel Medwed: That’s an interesting question, and it requires a deep dive into the Boston City Charter, which is not for the faint of heart. First of all, she is the acting mayor, not the duly elected one, and that limits her powers to some degree. However, the charter indicates that an acting mayor can draw on the regular mayor’s power for quote “matters not admitting of delay,” which basically means time-sensitive, emergency measures.

Second, the Charter provides that a city official can only spend money not otherwise part of a duly enacted appropriation “in case of extreme emergency involving the health or safety of the people or their property.” I think that’s why the mayor framed the executive order in terms of this being a public health crisis at Mass and Cass — it not only suggests that it falls within her authority as acting mayor, but also that she has the capacity to allocate additional funds to this effort.

Santoro: But surely there must be legal perimeters that she has to stay within?

Medwed: Absolutely. The Bostonians in those encampments have legal rights to their personal property, not to mention all the constitutional rights that would attach if they were to resist the order and wind up in the criminal justice system.

Janey’s executive order seems to anticipate some of these possibilities. It specifies that any enforcement actions “should not criminalize the status of being an unsheltered individual” and that “the City will: treat individuals with dignity; recognize that unsheltered individuals have a property interest in their belongings; give people appropriate notice and the opportunity to remove their tent; offer individuals substance use and mental health treatment services; and, offer people alternative shelter.”

Santoro: Daniel, you mentioned that those living on Mass and Cass have a right to their personal property. Do they have any property interest to the location, to the spot where they’ve been living? Basically, how do squatter’s rights work in Massachusetts?

Medwed: I don’t think they apply very well to this situation, and here’s why: The concept of “squatter’s rights” basically reflects a legal doctrine in Massachusetts known as “adverse possession” which provides that if you occupy property for a period of time, typically private property, eventually you accrue an interest in it. However, it is very difficult to obtain property this way. For one thing, you have to squat for — get this — 20 years. For another thing, under the law, that occupancy must be continuous and exclusive. If you go somewhere else for a night or share your space with a guest, then the clock starts all over again. And, to reiterate, it’s usually a doctrine that applies to private property, when someone occupies an abandoned house or something like that, rather than a public space.

Santoro: What concerns do you have with Janey's plan?

Medwed: I’m more concerned about the practical problems in enforcing it rather than its theoretical, legal basis. For instance, the order notes that as a “last resort” for people who pose a threat to themselves or others, the Boston Police Department can seek to commit them — involuntarily — subject to certain procedures. What that means is that some of the people residing on Mass and Cass might be forcibly committed to treatment centers, and it’s not always clear whether that will result in the best outcomes for everyone.