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ACLU suit aims to block city’s restrictions on panhandling

Copyright © 2018 Albuquerque Journal

Attorneys with the American Civil Liberties Union and Goodwin Procter LLP filed a federal lawsuit Thursday against the city of Albuquerque over a new pedestrian safety ordinance that severely restricts panhandling.

“This is just another heavy-handed attempt by the city to criminalize homelessness and push poor people out of sight and out of mind,” ACLU of New Mexico staff attorney María Martínez Sánchez said in a news release announcing the lawsuit. “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.”

The lawsuit, filed in U.S. District Court in Albuquerque, alleges that the ordinance is an unconstitutional attempt to eliminate panhandling by criminalizing speech in public areas where solicitation is common. It contends that the city ordinance violates the U.S. Constitution’s First and 14th Amendments along with a provision in the state Constitution.

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The suit seeks a court order declaring the ordinance unconstitutional, a preliminary and permanent injunction prohibiting the city from enforcing the law, and costs and attorney fees.

“Due to pending litigation, we are not able to comment on the ordinance we inherited,” said Alicia Manzano, interim communications director for Mayor Tim Keller, who took office Dec. 1.

City Councilor Trudy Jones, the sponsor of the ordinance, was unavailable for comment Thursday. But she has previously said the new law is aimed at public safety and not at infringing on anyone’s free speech rights.

“We’re not trying to limit their speech,” she told the Journal after the council approved the ordinance in November. “We’re just trying to say it needs to be in a safe place.”

City councilors voted 8-0 to adopt the ordinance on Nov. 6. Councilor Klarissa Peña was absent and did not vote on the measure, which went into effect Dec. 6. Former Mayor Richard Berry neither signed nor vetoed the ordinance, and it became law under the City Charter.

The law prohibits panhandlers, and anyone else, from soliciting motorists or occupants of a vehicle at busy medians and even on sidewalks. It also makes it illegal for drivers and passengers to physically interact with them.

Violating the ordinance is a petty misdemeanor punishable by a fine of not more than $500, or not more than 90 days in jail, or both.

The lawsuit was filed on behalf of five Albuquerque residents, including Rhonda Brewer and John Martin, who get most of their money by soliciting motorists.

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Brewer, 66, has been homeless since 2015, and, according to the ACLU, became homeless after escaping an abusive relationship.

Martin, who according to the lawsuit had been using donations to cover rent, utilities, food and other necessities for himself and his wife, has stopped seeking donations from motorists, fearing arrest. The suit says that he has tried soliciting exclusively from pedestrians in other areas of the city but was given far less money and was in danger of being unable to afford his family’s rent.

“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,” Martin said, according to the ACLU news release. “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.”

Two additional plaintiffs, Mary O’Grady, who experienced homelessness at the age of 19, and David McCoy, an Army veteran, say they regularly provide money and other items to people seeking donations on the streets.

The fifth plaintiff is Marissa Elyse Sanchez, a political activist who distributes political literature to occupants of vehicles stopped at red lights.

All five plaintiffs would violate the new city law if they continue those activities.

“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,” Martínez Sánchez said. “Criminalizing the solicitation of donations by the homeless in the dead of winter is not only unconstitutional, it’s cruel.”

The city previously had a stringent panhandling ordinance, but it was struck down more than a decade ago for violating free speech and due process rights.

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