On October 10, 2019, the Albuquerque City Attorney’s Office announced that the city is appealing a federal judge’s ruling that the “Pedestrian Safety Ordinance” designed to eliminate or restrict panhandling on the streets of Albuquerque is unconstitutional. The language of the ordinance prohibits anyone from standing inside travel lanes, along interstate ramps on medians and prohibits “any physical altercation or exchange” between “pedestrians and occupants of vehicles in traffic lanes.” In other words it is also a prohibition not only against the individual panhandlers but prevents drivers of vehicles in traffic from giving anything to panhandler’s.
The “Pedestrian Safety Ordinance” was enacted by the City Council in November of 2017 despite repeated warnings that the ordinance was a violation of constitutional rights. The American Civil Liberties Union (ACLU) filed a federal lawsuit that sought a declaratory ruling from the federal court that the ordinance was unconstitutional, that the ordinance violates the plaintiffs’ rights to freedom of speech under the First and Fourteenth Amendments to the United States Constitution, as well as Article II, Section 17 of the Constitution of the State of New Mexico. The city council ignoring legal advice made minor amendments to the ordinance.
In 2018, the ACLU sued the city and at the time of filing of the lawsuit, the ACLU of New Mexico staff attorney María Martínez Sánchez said in a news release:
“This [ordinance] is just another heavy-handed attempt by the city to criminalize homelessness and push poor people out of sight and out of mind. … People have a constitutional right to stand in public places and solicit donations, regardless of whether they’re looking for their next meal or raising money for little league uniforms”.
U.S. District Judge Robert Brack granted the ACLU’s motion for summary judgment in July of this year. Judge Brack ruled that the enacted “Pedestrian Safety Ordinance” was “an unconstitutional restriction on free speech because it is not narrowly tailored to meet the City’s interest in reducing pedestrian-vehicle conflicts.”
Upon hearing the city’s intent to appeal the ruling, ACLU-NM senior staff attorney María Martínez Sánchez said the ACLU welcome the appeal and, in a statement, issued said:
“The District court correctly recognized that the law was an unconstitutional infringement of free speech rights and struck it down.”
The City Hall has contracted outside council to handle the appeal and not the City Attorney’s Office. The decision to appeal was not made by the city council, but was made by City Council Services who instructed the outside council to proceed with the appeal.
CITY COUNCIL REACTION TO APPEAL
Albuquerque City Councilor Trudy Jones, the sponsor of the “Pedestrian Safety Ordinance” had this to say in support of the city appealing the case:
“I believe the citizens – the residents of Albuquerque – would really like to see something happen here, and we’re trying to do it in the best and, obviously, legal way.”
Republican Albuquerque City Councilor Don Harris, who is also a private attorney, had this to say about the appeal:
“I can understand how the court got there, but it was an incorrect ruling and it needs to be corrected. … I think the average person with common sense understands the medians are not meant for interacting with traffic.”
Democrat City Councilor Pat Davis said he would not take a position on the merits of the appeal but expressed the opinion the city has other law enforcement options to combat panhandling.
Mayor Tim Keller has not announced his position on the appeal.
COMMENTARY AND ANLAYSIS
City Attorney’s Office employs upwards of 33 attorneys yet City Hall felt the need to contract outside council to handle the appeal. It a very sad commentary that the City Attorney’s office does not have experienced attorneys and the know-how and the understanding how to appeal and defend a city ordinance. The city attorney’s office no doubt was involved with the review and drafting of the ordinance and they should be more than capable of handling the appeal for the city.
There is no doubt that “panhandling” is a problem on the streets of Albuquerque with drivers often becoming distracted, annoyed and angry when panhandlers become way too aggressive. Notwithstanding, based on settled case law on similar ordinances, it is more likely than not that the city’s appeal of the court ruling will be denied with the federal court of appeals again finding that it goes way too far and is unconstitutional.
The truth is the “Pedestrian Safety Ordinance” probably is not even needed. After the federal district court ruled the ordinance unconstitutional, the city began to make other efforts to solve the problem. Albuquerque Police Department (APD) has begun approaching panhandlers when they see them jaywalk or violate other existing ordinances and laws. APD cannot arrest anyone for a jaywalking offense alone, but they can cite panhandler’s resulting in a fine or appearance in court.
When the “Pedestrian Safety Ordinance” was first enacted, APD was still suffering from a severe shortage of police officers and still suffers from a severe crime wave. During the last year, APD has added 117 sworn police to the force and APD now employs 980 sworn police. APD has also initiated bike patrols in a few areas of town to promote “community based” policing. APD should now be able to develope a “Panhandler Welfare Check Tactical Plan” and increase patrols of all the major intersections and freeway entrance ramps that can be easily identified where panhandlers are known to frequent.
Existing laws governing trespassing, camping on public property and prohibitions on using traffic street medians need to be enforced with a police patrol presence and law enforcement contact to reduce panhandling and offer social services available. A tactical plan needs to include a form of “welfare checks on panhandlers” based on calls for service to APD to begin identifying the panhandlers and determine if the panhandler needs help or in real distress where social services can be offered such as shelter. Welfare checks to determine identity, addresses and perhaps do background checks on outstanding warrants can be done by officers in plain cloths and accompanied by a social worker with an offer of transportation to the city’s homeless shelter.
Until a measured law enforcement response respecting constitutional rights is taken, the panhandling will only continue to frustrate and anger the driving public.