On May 23, Mayor Tim Keller and the Albuquerque Police Department (APD) announced a major effort to enforce the “Pedestrian Safety Ordinance” to discourage people from standing on major highway medians saying the crackdown is intended to improve public safety and not target panhandlers. The legal basis for the initiative is Mayor Tim Keller’s revision of a 2017 “pedestrian safety ordinance,” which was struck down by a federal judge in 2019 and then amended. The ordinance targets medians less than 4 feet in width, on roadways with a speed limit of 30 mph or greater. Violations are a petty misdemeanor punishable by a fine up to $100. On May 22, the new ordinance went into effect and on May 15 APD had issued 14 citations to violators.
The city has identified 15 intersections for enforcement The city has placed signs on those medians that warn “Unlawful to occupy median.” The locations where signs have been placed alerting pedestrians not to stand on medians are as follows:
• Montaño and 4th Street
• Indian School and Carlisle
• Carlisle and Lomas
• Louisiana and Menaul
• Avenida Cesar Chavez and Broadway
• Copper and Eubank
• Montgomery and Louisiana
• Menaul and San Mateo
• Menaul and San Pedro
• University and Gibson
• Yale and Gibson
• Montaño and Coors
• Ellison and Coors
• Coors and Irving
• Alameda and Corrales
https://www.cabq.gov/police/news/apd-ramps-up-median-safety-enforcement-1
Albuquerque has a grim record for pedestrian deaths on its roadways. The New Mexico Department of Transportation data shows that 40 pedestrians were struck and killed in Bernalillo County in 2022 and of those 33 happened within the city limits. The Governors Highway Safety Association has ranked New Mexico the nation’s deadliest state for pedestrians since 2016.
APD spokesperson Rebecca Atkins explained how the medians were selected. She said this:
“The medians were selected through a combination of complaints that have come into the area commands, crash data, as well as medians [that have been identified] as smaller than 4 feet in width that meet the qualifications of the ordinance. … The first 15 is just the first round of locations. … We are working on the second round of locations in the future.”
Link to quoted news source is here:
https://www.abqjournal.com/2602884/road-warrior-how-apd-picked-the-no-panhandling-medians.html
In announcing the enforcement initiative of the ordinance, Mayor Keller had this to say:
“We know pedestrian safety is a real challenge in Albuquerque and in New Mexico. So, it’s never lost on us that for a long time, we have been at the top of the ranking, that we don’t want to be at the top, when it comes to pedestrian safety. … We also know since last year, pedestrian fatalities doubled. That’s a terrible thing for our city. It’s also a call for us to try and do more about it.”
Way too many of our pedestrian fatalities have been on super-busy intersections and have been from a person either going to, or coming off, a median. … It’s fundamentally about safety, not about [free] speech. … When you get smaller than 4 feet, it’s just dangerous, especially in these busy intersections.”
“Historically, the city had two laws, and they were both thrown out in court. Now this third law, which passed in January, is only about safety on four-foot medians regardless. Our legal team at least believes that will stand up in court.”
APD Chief Medina for his part said this about the initiative:
“This is not about panhandlers. … It’s about public safety. … We know there are individuals across the city who frequent our medians for a multitude of reasons, but this presents safety concerns for them and drivers. … We decided to begin enforcement of this ordinance slowly, with warnings to educate the public that this is a citable offense, but also to spread word of the dangers. … It’s a typical misdemeanor that will go through Metro court. Generally, it’s under $500 in less than 90 days.”
Not at all surprising, the New Mexico Chapter of the American Civil Liberties Union took sharp issue with the Mayor and Chief Medina. A spokeswoman for the American Civil Liberties Union of New Mexico said the term “median enforcement” is a coded term for “anti-panhandling” measures. Maria Martinez Sanchez, the legal director for the ACLU, said this:
“It is no secret that the city’s goal is to sweep under the rug individuals seeking assistance from their neighbors on Albuquerque’s streets. … The intent is and has always been to drive the most vulnerable and desperate in our community out of public spaces where they are most visible.”
The links to quoted news sources are here:
https://www.koat.com/article/new-mexico-median-safety-enforcement-pedestrian-deaths/43981287
https://www.kob.com/new-mexico/albuquerque-police-crack-down-on-pedestrians-standing-on-medians/
https://www.cabq.gov/police/news/apd-ramps-up-median-safety-enforcement-1
HISTORY OF THE ORDINACE
The ACLU’s downright hostility towards the “Pedestrian Safety Ordinance” and the enforcement initiative should come as absolutely no surprise to anyone given the fact that it was the ACLU that successfully challenged the initial ordinance enacted by the City Council. 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.”
The original ordinance was amended to address the specific concerns raised by the U.S. Court of Appeals. On November 21, 2022, the Albuquerque City Council enacted a “new and improved” “Pedestrian Safety Ordinance” on a 7 to 2 vote. The city council amended the original city ordinance that severely restricted panhandling and that was ruled by the federal courts as unconstitutional.
The “new and improved” 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. 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.
City Attorney Lauren Keefe told the city council at the time of enactment of the new ordinance:
“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.”
The link to a quoted news article is here:
https://www.abqjournal.com/2552022/city-council-oks-revised-median-restrictions.html
COMMENTARY AND ANALYSIS
There is no doubt that the work of the American Civil Liberties Union is commendable and is necessary to help protect and preserve the right of free speech in this country. However, there are times the ACLU goes way too far and presumes the absolute worst in government and accuses government of dark and sinister motives to interfere with a person’s right of free speech.
Such is the case when Maria Martinez Sanchez, the legal director for the ACLU, when she said this about the amended Pedestrian Safety Ordinance ordinance and the enforcement action being taken by the city:
“It is no secret that the city’s goal is to sweep under the rug individuals seeking assistance from their neighbors on Albuquerque’s streets. … The intent is and has always been to drive the most vulnerable and desperate in our community out of public spaces where they are most visible.”
First of all, Sanchez presumes all panhandlers “seeking assistance” are the most “vulnerable and desperate” as she puts it and even homeless but that is not likely the case given some of the tactics reportedly used by panhandlers. Those tactics include using carboard signs with false claims, such as being a veteran, and having their cars parked within walking distance to where they panhandle so they can return to their homes after they panhandle with tax-free income.
This city’s goal is in no way “trying to sweep under the rug individuals seeking assistance from their neighbors on Albuquerque’s streets” given the city’s financial commitment to the homeless. Over the last two fiscal years, the city has spent upwards of $100 million to address assistance to the homeless including funding for affordable housing, programs for the low-income, near homeless and funding for mental health and substance abuse programs and two 24/7 homeless shelters.
Simply put, free speech is not an absolute right with no restrictions. It does not give you the right to act negligently and place yourself and others in harm’s way. Protected free speech has limitations that requires one to use your common sense. There is a very old case taught in law school where the United States Supreme Court found free speech does not mean you can stand up in a packed theater and falsely yell “fire” causing a stampede for the exits.
Government has the legitimate right to take reasonable steps to preserve and protect the safety of our roadways and to protect the safety of those that use them, including both drivers and panhandlers. Drivers have the right to expect that their view while driving will not be impaired or distracted by unwelcomed advances made by panhandlers. Panhandlers should not be allowed to negligently place themselves in harm’s way risking death by being hit by speeding cars asserting that it is their free speech right to do so and be on a median.
There are times you can not expect the New Mexico Chapter of the ACLU to be at all reasonable when it comes to vilifying legitimate City of Albuquerque government actions to protect the public safety and public property. It is those times of being unreasonable with the City of Albuquerque when the ACLU loses respect and public support. Least anyone forget on August 18, 2022 the NM Chapter of the ACLU has sued the City of Albuquerque over the closure of Coronado Park claiming that their clients’ civil rights were violated and the city failed to provide shelter. Coronado Park had become the largest de facto homeless encampment with upwards of 100 to 150 homeless camping at the park each night. It was costing the city $50,000 a month to repeatedly clean up the park of trash left by the homeless. The city cited ground contamination and lack of sanitation posing a health risk to those at Coronado Park as playing a major role in the park closure, as well as overall damage to the park.
The biggest factor and justification in closing the park was crime. Criminal activity had spiked at the park over the previous 3 years. The city park has an extensive history lawlessness including drug use, violence, murder, rape and mental health issues. In 2020, there were 3 homicides at Coronado Park. In 2019, a disabled woman was raped, and in 2018 there was a murder. APD reports that it was dispatched to the park 651 times in 2021 and 312 times in 2022. There had been 16 stabbings at the park in the previous 2 years and 30 days before closure of the park APD has seized from the park 4,500 fentanyl pills, more than 5 pounds of methamphetamine, 24 grams of heroin and 29 grams of cocaine. APD also found $10,000 in cash.
The New Mexico Chapter of the ACLU would no doubt likely be one of the first in line to bring a wrongful death action against the city for negligent maintenance of street medians when one of its panhandling clients holding a carboard sign his hit and killed by a speeding car while using an unsafe median to panhandle. This dispute over the new panhandler ordinance is one battle the ACLU should not pick. Instead the ACLU should get word out to their clients not to use medians to excercise their free speech.