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Copyright © 2019 Albuquerque Journal

A federal judge has ruled that an Albuquerque ordinance severely restricting panhandling is unconstitutional, a decision the American Civil Liberties Union of New Mexico is hailing as a “significant victory.”

Judge Robert Brack of U.S. District Court in Albuquerque on Thursday issued a 37-page opinion in the ACLU’s 2018 lawsuit against the city. Brack wrote that most of the Pedestrian Safety Ordinance, passed in 2017 and amended last month, is “an unconstitutional restriction on free speech because it is not narrowly tailored to meet the City’s interest in reducing pedestrian-vehicle conflicts.”

The ordinance, sponsored by City Councilor Trudy Jones, bars anyone from standing inside travel lanes, along interstate entrance and exit ramps and on certain medians. It also prohibits “any physical interaction or exchange” between pedestrians and occupants of vehicles in traffic lanes.

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The ACLU and the Goodwin Procter law firm represented four plaintiffs in the case: Rhonda Brewer, a homeless woman who regularly seeks donations from medians or near freeway entrances; Mary O’Grady and David McCoy, who hand out donations from their vehicles; and Marissa Elyse Sanchez, who has distributed fliers and other material to motorists stopped at red lights.

Leon Howard, legal director for ACLU New Mexico, celebrated Brack’s decision in a written statement Friday morning.

“This is a significant victory, not just for free speech, but basic fairness and human compassion,” he said. “These types of unconstitutional laws not only erode the right to express oneself in public places, but endlessly cycle those on the margins of society in and out of the criminal justice system.”

The ordinance, which went into effect in December 2017, never fully took root.

The plaintiffs filed suit the following month, and the city agreed not to enforce the law pending the outcome of the case.

But the City Council voted 8-1 last month to pass an amended version with an eye toward resuming enforcement if the city prevailed in the case.

The matter was supposed to go to trial next month, but Brack called off the trial in his opinion.

He instead decided to grant partial summary judgment to the plaintiffs, agreeing that most subsections of the ordinance violated the First Amendment.

The judge did, however, write that the ordinance’s ban on people standing in traffic lanes was a “valid restriction” and agreed with the city’s arguments that the ordinance is “content neutral” and addresses a significant government interest.

“In sum, 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,” Brack wrote. “Still, prohibiting all access to these spaces on the grounds 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.”

Jones called the opinion “disappointing” but noted that Brack upheld part of the ordinance.

“If there’s anything I can do, I would like to appeal, or write a better ordinance or whatever it takes to see if we can stop this unsafe condition,” she said Friday.

A spokeswoman for Mayor Tim Keller’s office said the city has not decided whether to appeal but indicated in a statement that the administration was ready to move on.

“The legal reality is now clear,” spokeswoman Jessie Damazyn said in a written statement. “We are ready to support new City Council efforts to keep our streets safe and reduce pedestrian injuries associated with chronic panhandling.”

Keller has said combating homelessness is one of his priorities. The city recently extended operations at its West Side homeless shelter, keeping what has been a winter-only facility open year-round. The city is also seeking $14 million in this fall’s general obligation bond election to develop a new, 24/7 shelter in a more central location.

Howard of the ACLU said the city should keep looking for ways other than the Pedestrian Safety Ordinance to tackle the problems.

“They’re not going to cite their way out of any poverty issue, and they’re certainly not going to criminalize their way out of the poverty issue,” he said in an interview. “We’d like to see the city continue to focus on those things and not target people on the fringes, and certainly we don’t want to see them doing anything that restricts First Amendment rights.”