On November 21, the Albuquerque City Council enacted a new and improved “pedestrian safety ordinance” on a 7 to 2 vote. The city council action amends a city ordinance that severely restricted panhandling and that was ruled by a federal court and a court of appeals as unconstitutional.
The new ordinance specifically bars individuals from standing in or entering street and highway travel lanes unless they are “legally crossing.” It also prohibits using or occupying medians on 30 mph or faster roads where there is not a flat surface of at least 4 feet wide having no greater than 8% grade. A city council legislative analysis determined that the ordinance will affect just over 17% of the linear feet of higher-speed arterial roadway medians across Albuquerque. Nonetheless, these are the medians on roadways with the highest traffic flows and highly visible to the driving public. In other words 83% of medians in the city will be available for constitutionally protected free speech activities.
Under the new ordinance, if pedestrians are on a median that doesn’t meet the bill’s requirements, a $100 citation will be issued. APD and the Albuquerque Community Safety Department (ACS) will be authorized to give warnings, or are a person can be criminally charged with a misdemeanor and fined a $100.
The updated ordinance removes the unconstitutional provisions of the original ordinance, including the part banning exchanges between drivers and pedestrians, and loosens up where pedestrians can be on sidewalks.
The link to a quoted news article is here:
PREVIOUS ORDINANCE RECALLED
It was in 2017 that Albuquerque City Councilor Trudy Jones sponsored the original “Pedestrian Safety Ordinance” that was enacted unanimously by the city council. The 2017 Pedestrian Safety Ordinance was very restrictive as to make it “unconstitutional” making it illegal to occupy certain medians and stand on highway entrance and exit ramps. It also barred “any physical interaction or exchange” between pedestrians and vehicle occupants while the vehicle was in a travel lane.
The American Civil Liberties Union (ACLU) filed a federal civil rights lawsuit challenging the original city ordinance after repeated warnings were made to the city council. The ACLU represented multiple plaintiffs including a woman who is homeless and routinely used the medians to ask for donations as well as individuals who distributed donations from their vehicles.
U.S. District Court Judge Robert Brack in Albuquerque ruled in 2019 that the ordinance violated free speech protections because it was “not narrowly tailored to meet the City’s interest in reducing pedestrian-vehicle conflicts.” The city appealed the ruling and in 2021 the U.S. 10th Circuit Court of Appeals upheld Judge Brack’s ruling. The U.S. 10th Circuit Court of Appeals in its ruling wrote:
“[The city was] unable to establish that the ordinance does not burden substantially more speech than necessary to further its interest in pedestrian safety … [and] has almost completely failed to even consider alternative measures that restrict or burden the speech at issue less severely than does the ordinance.”
City Attorney Lauren Keefe said the amended ordinance was written to address the specific concerns raised by the U.S. Court of Appeals. Keefe told the city council:
“The biggest concern from the court was whether the ordinance as drafted burdened more speech than necessary, meaning it took away more places people could stand and engage in expressive conduct than necessary in order to ensure people remain safe.”
Voting YES to enact the ordinance were Democrats Isaac Benton, Pat Davis, and Louie Sanchez and Republicans Renee Grout, Trudy Jones, Dan Lewis. Voting NO were Democrats Klarissa Peña and Tammy Fiebelkorn.
COMMENTARY AND ANALYSIS
CURING A DEFECTIVE ORDINANCE
The biggest problem with the original ordinance sponsored by Republican City Councilor Trudy Jones is that it was obviously directed at the homeless or panhandlers and also at drivers stopping to pass items such as food, money or anything a driver wanted to give as a handout to help make a beggar’s or a homeless person’s life a little less miserable. It came across as downright cruel and lacking any compassion interfering with people simply wanting to help with a handout.
In 2017, the city council was repeatedly warned about the language of the original ordinance by the ACLU and the City Council simply ignored what it was being told and that the original ordinance was unconstitutional. What was truly amazing is the poor advice the City Council was likely given in 2017 by the City Attorney’s Office and the fact that the City Attorney office appealed the original ruling.
From review of the new language and with the deletions of the unconstitutional language, the new version of the ordinance has a much better chance of being upheld as constitutional or even going unchallenged in federal court. Now that the ordinance has been enacted, the Mayor should sign it into law quickly and the city should dedicate resources and proceed to enforce it.
FIEBELCORN GIVES FLAKY JUSTIFICATION TO VOTE NO
Klarissa Peña in casting a NO vote raised concerns about enforcement saying that the city already lacks enough personnel to focus on other ordinances. Peña’s concern are legitimate.
Tammy Fiebelkorn on the other hand gave a downright “flaky” personal excuse for voting “NO” saying the ordinance’s purpose seemed “trivial” and said this:
“I’ve been an activist for 44 years. … When I’m protesting something or holding up a political sign, it matters where you are. I don’t want to have a political sign three blocks from where I wanted to have it.”
The link to the quoted news article is here:
Street “right of ways” are for safe driving and not for protesting of for that matter the unhoused. There is nothing “trivial” about the ordinance as Fiebelkorn claims. It’s bad enough Albuquerque divers have to keep close attention to traffic signals and signs and avoid collisions and even the risk of hitting pedestrians. The last thing drivers need to worry about are protesters who get up in your face, the likes of activists such as Tammy Fiebelkorn, and the “unhoused” who stick what many feel are obnoxious signs in front of their windshields and faces obstructing their views increasing the risk of accidents.
THE LEADING “FLAKE” ON THE CITY COUNCIL ADVOCATING FOR HER OWN POLITICAL AGENDA
Fiebelkorn has become the leading “flake” on the city council with some of her actions and comments. This includes her over the top complaints and demand for an investigation about chickens, roosters and sheep not being properly fed and watered at the City’s Biopark Heritage Farm facilities. At the time, Fielbelkorn said the animal’s conditions were so bad, she wanted the city to consider sending them to a “sanctuary” and said this:
“I am requesting officially that these animals be seen by an actual veterinarian, clearly not the veterinarians who are caring for them now. I would like an independent survey of if they are okay, I would like to be present at that visit, and I would like to discuss a plan to release these animals to sanctuaries because they are clearly not getting the care they need.”
It turns out that all the animals were in fact under veterinarian’s care, they were receiving care, antibiotics, topical ointments and high calcium diets according to Brandon Gibson, Biopark Deputy Director.
On November 18, Fiebelkorn sent out a Thanksgiving email best wishes to her constituents that said in part:
“I hope you are all making plans to spend next week with family, friends, or chosen family members. My partner, Paul, and I are heading to meet our dear friends, Mike and Dan, for our annual Thanksgiving celebration. We have a wonderful celebration with a extravagant vegan feast and some much-needed “down time”. I encourage everyone to consider making your Thanksgiving celebration cruelty-free this year.”
No doubt Fiebelkorn believes if you enjoyed a turkey, ham or prime rib roast with your family and friends during Thanksgiving this year, you and your family are cruel people and only a vegan feast was acceptable to her.
Then there is that matter that after a mere 6 months of service on the city council, Fiebelkorn wanted to completely gut her own city council district and gerrymander and realign it to be more favorable to her with more progressive Democrats. On June 4 it was reported that City Councilors Pat Davis and Tammy Fiebelkorn submitted to the City’s citizen-led City Council redistricting committee a map they came up with by themselves. The proposed map dramatically realigned both City Council District 6, represented by Pat Davis, and City Council District 7, represented by Tammy Fiebelkorn. The map was the most radical of all the 10 maps reviewed.
City Councilor Fiebelkorn said of the concept map she wanted adopted would be give the International District’s “large, culturally significant population” a more united voice on the council. She said she thought the International District residents may have “more in common” with residents just north of Lomas than with the current district that includes Nob Hill, which she called a “completely different demographic.” It was the progressive Nob Hill area that Fiebelkorn wanted to be included in her newly aligned district and to exclude a Republican leaning area of her district. City Councilor Fiebelkorn had this to say:
“One of the baselines of redistricting is that we find ways to make marginalized communities have a voice. This is just an idea. I want to hear what the folks who have been living and breathing this the last several months think in terms of these various options and what would be the best to make sure everybody is represented in a fair and equitable way.”
City Councilor Pat Davis for his part had this to say about the proposed concept map:
“I think we should have some different voices on the City Council. … If you look at it now, the entire east side of the city is represented by white folks, and I think that shows the current districting is leaving some people out of the process.”
The problem is Fiebelkorn does not represent the International District and she did not want it to be included in her new district. She knows very little about the International District in that she is not a part of any marginalized community nor is she a person of color but she is a strong animal rights advocate, yet she felt compelled to advocate for the International District. Fiebelkorn and Davis are both one of those “white folks” Pat Davis complained about.
No one should be surprised if “activist” City Councilor Tammy Fielbelkorn steps down from the City Council dias and gets out her poster boards, crayons and magic markers and produces a “protest sign” over the new ordinance and goes standing and waiving it at the intersection of Montgomery and San Mateo, the busiest intersection in the State of New Mexico, which also falls partially in her city council district, to protest the City Council’s enactment of the ordinance.