In what will be an interesting test for Mayor Tim Keller's new administration, the ACLU on Thursday sued the city in federal court claiming the city's pedestrian safety ordinance is an unconstitutional attempt to eliminate panhandling by criminalizing speech [on highway exit and entrance ramps and on street medians] in public areas where solicitation is common.
Here's the rub: the ordinance passed by an 8-0 vote in the City Council on Nov. 6, 2017. Democrats and Republicans voted for it. No matter what Keller feels about defending the city over the lawsuit, the City Attorney works for both the Mayor's Office and the City Council.
The ordinance prohibits anyone - including firefighters soliciting money for their causes - from using street medians and highway entrance and exit ramps from interacting with motorists. The ordinance, which took effect on Nov. 22, 2017, says it's dangerous for people to stand in street medians and highway ramps.
Here's the ACLU's news release on the lawsuit:
Today, the American Civil Liberties Union (ACLU) of New Mexico and Goodwin Procter LLP filed a lawsuit against the City of Albuquerque in federal court alleging that a new ordinance passed by the Albuquerque City Council is an unconstitutional attempt to eliminate panhandling by criminalizing speech in public areas where solicitation is common. The ordinance, which was passed on November 6, 2017 and went into effect on December 6, 2017, restricts speech on medians and freeway entrance and exit ramps and criminalizes physical interactions between occupants of vehicles and pedestrians.
“This is just another heavy-handed attempt by the city to criminalize homelessness and push poor people out of sight and out of mind,” said ACLU of New Mexico Staff Attorney Maria Sanchez. “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. If the Albuquerque City Council is serious about addressing issues of poverty and homelessness, it should abandon its punitive mentality and approach the problem in a way that is legal, compassionate, and effective. Criminalizing the solicitation of donations by the homeless in the dead of winter is not only unconstitutional, it is cruel.”
The ACLU of New Mexico filed the lawsuit on behalf of Albuquerque residents Rhonda Brewer and John Martin, both of whom derive an important source of income from soliciting donations in places now prohibited by the ordinance. After escaping a physically abusive relationship, Ms. Brewer has experienced homelessness since 2015 and currently makes ends meet by soliciting donations on medians or along freeway entrances and exits several times per week. Mr. Martin, after experiencing a period of homelessness, now maintains shelter for himself and his wife by providing water bottles to motorists in exchange for donations.
“It took me forever to get from the street to having a roof over my head, and this new ordinance makes me terrified I’m about to lose that,” said Martin. “This ordinance makes it extremely difficult for me to pay rent but if I keep on seeking donations I risk fines I can’t afford and the possibility of ending up in jail. Either way I become homeless again. I feel like my hands are tied.”
Other plaintiffs in the lawsuit include Albuquerque resident Mary O’Grady, who regularly donates food, water, toiletries, and money to people seeking donations in the streets. Ms. O’Grady had her own experience with homelessness when she was 19 years old and donates out of a personal calling to help those in need. The ACLU of New Mexico also represents David McCoy, a U.S. Army veteran and the executive director of a local environmental group, who also regularly donates to individuals on the streets out of a personal calling to help those in need. This ordinance would criminalize O’Grady’s and McCoy’s acts of compassion, and make them subject to fines and citation if observed by police.
“I know what it’s like to be homeless, scared, and ashamed,” said O’Grady. “At age 19 I wound up living in my car to escape a family situation rife with chaos and physical and emotional abuse. I was one of the lucky ones who made it out of that situation, so I feel compelled to give folks in similar circumstances any help and encouragement I can. But this ordinance makes these small acts of human compassion illegal, and that’s just not right.”
The ACLU of New Mexico’s final plaintiff is Marissa Elyse Sanchez, an Albuquerque resident who is extensively involved in political activism with the Act Now to Stop War and End Racism (ANSWER) coalition. Sanchez regularly holds political signs at medians and distributes political literature to occupants of vehicles stopped at red lights, activities which are now prohibited under the new ordinance.
In its lawsuit, the parties seek a declaration from the court that the Albuquerque ordinance is unconstitutional and violates the plaintiffs’ rights to freedom of speech under the First and Fourteenth Amendments to the United States Constitution, and Article II, Section 17 of the Constitution of the State of New Mexico. The parties have also filed a motion for a preliminary injunction seeking an order from the court which would cease the City’s enforcement of the ordinance until the court makes its final decision.
Attorneys representing the plaintiffs in this case include ACLU-NM Staff Attorney Maria Martinez Sanchez, ACLU-NM Legal Director Leon Howard, and cooperating attorneys Kevin P. Martin, Jaime A. Santos, Gerard J. Cedrone, and Martin C. Topol of Goodwin Procter LLP.