LAS CRUCES – The Las Cruces City Council will likely revise or scrap the city’s laws against panhandling in response to a threat by the American Civil Liberties Union.
Las Cruces is one of 10 cities in the state that has been targeted by ACLU of New Mexico because they have anti-panhandling laws that the group believes violate the First Amendment. The town of Mesilla is also on the list. The group in January filed a federal lawsuit challenging the constitutionality of an Albuquerque anti-panhandling ordinance.
Las Cruces Mayor Ken Miyagishima received a letter from the ACLU on Tuesday calling on the city to repeal sections of the city’s code that relate to panhandling, stop enforcing those laws, and dismiss any pending prosecutions under those ordinances.
Miyagishima forwarded the letter to City Attorney Jennifer Vega-Brown for input. He said he would raise the issue at the City Council’s next meeting on Tuesday, Sept. 4. He said he hopes the City Council will make changes to its panhandling laws within the next month.
“We need to revise the ordinance,” Vega-Brown said. “What the ACLU is saying is well established. We are going to be very careful that we are respecting and not violating anybody’s First Amendment rights.”
Las Cruces’ has two main ordinances that restrict panhandling and similar activities. One prohibits solicitation of money or anything of value, or the sale of goods and services, in an “aggressive manner” in a public area; on public transportation or at a bus stop or station; within 15 feet of a bank, ATM, or check-cashing business; on private property; or from anyone in a vehicle on a public street.
The second ordinance prohibits solicitation near a street or highway. It prohibits solicitation of money, business or employment from vehicles on streets if the person engaged in that activity enters the street, does it from a median or blocks a parking area.
Both ordinances were approved by the City Council in May 2002 in response, city officials and police said, to an increase in panhandling in the city that occurred because of a recession that began the previous year as a result of the dot com bust and Sept. 11 attacks on the United States.
The ACLU contends such panhandling ordinances violate the First Amendment because they infringe upon the free speech of panhandlers and others seeking assistance in public places. That view is based on a 2015 Supreme Court decision that ruled a sign ordinance in Gilbert, Arizona, was unconstitutional because it restricted the content of speech.
In its letter to Miyagishima, the ACLU of New Mexico gave the city until Sept. 11 to respond to its demands and said it “will consider all options to ensure that the law is no longer enforced.”
Not strictly enforced
James Chavez, chief codes enforcement administrator for the Las Cruces Police Department, said that neither of the ordinances is strictly enforced and that he didn’t think anyone had ever been cited or arrested for violating one of them.
He said most panhandling complaints that Las Cruces police receives are made by business owners for panhandling that occurs near stores and other businesses, which normally takes place on private property and, therefore, isn’t protected by the First Amendment.
Chavez said Las Cruces police “do not enforce” the panhandling ordinances in public places, except along streets. If people are panhandling or asking for other types of help from motorists, or standing on medians, police will ask them to leave, but won’t arrest them.
“It’s a public safety issue,” Chavez said. “Sometimes they’re holding up traffic. We don’t want them to cause any accidents or to be run over. The higher priority is public safety than what they’re actually doing on the street.”
Miyagishima said he felt that any general prohibition against panhandling was probably not permissible, but he defended those laws that had a public safety intent. The ACLU said those laws were still unconstitutional since they don’t forbid other types of speech along streets and on medians.
“We recognize that asking for money is allowable,” Miyagishima said. “However, when you’re at some of the busy intersections, and darting in and out of traffic, it becomes a public safety issue. If that’s our focus, and we’re specifically focusing on public safety in those areas, I still believe we’re in the right on that.”
Mesilla’s anti-panhandling ordinance is broader in scope than the Las Cruces ordinances. It prohibits “begging” at homes and businesses, or “upon any public way or public place.”
Nora Barraza, Mesilla’s mayor, confirmed that she had received a letter from the ACLU about the town’s panhandling laws. She said she gave the letter to town attorney Joseph Cervantes. She said she hopes the issue will be discussed at the town’s next regular Board of Trustees meeting on Sept. 11.
“I really can’t comment on it,” she said. “I’m waiting for guidance from our attorney.”
The other New Mexico cities with panhandling laws targeting by the ACLU are Artesia, Elephant Butte, Española, Los Alamos, Los Lunas, Rio Rancho, Santa Fe and Silver City. Gallup recently repealed its panhandling ordinance under pressure from the ACLU.
Blake Gumprecht may be reached at 575-541-5453, email@example.com or @blakegumprecht on Twitter.
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