Albuquerque Panhandling Law Ruled Unconstitutional

ALBUQUERQUE (CN) — A federal judge ruled Thursday that an Albuquerque law against panhandling violates the First Amendment, and invalidated all of it except parts “related directly to prohibiting pedestrians from standing in travel lanes.”

The Albuquerque City Council in November 2017 approved an ordinance prohibiting pedestrians from standing or assembling on streets, medians, highway exit and entrance ramps and major intersections. It also barred pedestrians from talking to or interacting with drivers and occupants of vehicles, and made it illegal for anyone in a vehicle to interact with pedestrians.

But five named plaintiffs represented by the American Civil Liberties Union called the law a cover for a direct attack on panhandlers, the homeless, and the First Amendment.

In fact, City Councilwoman Trudy Jones, who proposed the ordinance, said as much in remarks she made about it to the staff of a homeless services center.

“We can only help people who want to be helped, and we cannot allow this to keep degrading our city,” Jones said, according to the lawsuit. “We have to take our streets back. We have to … retake control of our city, and if that means they go to Tucson, or Phoenix, or Dallas or Colorado where the drugs are cheaper, so be it.”

The January 2018 lawsuit called the ordinance overbroad, “entirely irrational and unconstitutional on its face.”

“Far from merely preventing pedestrians from standing in the middle of a major intersection, the ordinance bars neighbors from having a conversation on the street outside their homes and even prohibits residents from gathering outside City Hall,” the complaint states.

In February 2018, the ACLU and Albuquerque reached a settlement in which the city agreed to refrain from “arresting, charging, or prosecuting any person pursuant to the Ordinance; ordering any person to refrain from speaking or to leave any public place pursuant to the Ordinance; or threatening or attempting to undertake any of the foregoing actions pursuant to the Ordinance.”

In return, the ACLU and the plaintiffs withdrew a motion for a preliminary injunction.

On Thursday, Senior U.S. District Judge Robert C. Brack issued a Memorandum Opinion and Order finding that “pedestrian safety is a concern and a valid government interest in Albuquerque. Pedestrians who choose to stand, seek donations, or hand out leaflets in any area where increased physical proximity to vehicles benefits their expressive activity may be taking on more risk than individuals who choose to do so from the sidewalk. Still, prohibiting all access to these spaces on the ground that Albuquerque struggles with troublingly high rates of pedestrian-vehicle conflicts, without presenting any evidence beyond anecdotal and personal speculation that the ban would actually reduce the number of such conflicts in the City and that less sweeping restrictions would not suffice, runs afoul of the First Amendment.”

Brack found that the city “has not explained why prohibiting all physical exchanges with vehicles in travel lanes is the only adequate option. The City cannot simply assert that its ‘chosen route’ of banning all such physical exchanges is easier to enforce than banning only those physical exchanges that present a clear safety risk, as ‘the prime objective of the First Amendment is not efficiency.’”

Brack ruled that only the sections of the ordinance related directly to prohibiting pedestrians from standing in travel lanes are valid, and the rest of the ordinance “is an unconstitutional restriction on free speech because it is not narrowly tailored to meet the City’s interest in reducing pedestrian-vehicle conflicts.”

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