An Albuquerque ordinance once ruled unconstitutional has a new look and the City Council’s backing.
Mayor Tim Keller’s rewrite of the old “pedestrian safety ordinance” — which would have severely restricted panhandling but was struck down by a federal judge — cleared the council Monday on a 7-2 vote.
The latest incarnation deletes much of the language from the last version, targeting activity on certain medians and in driving lanes.
As approved by the council, the ordinance specifically outlaws occupying medians without at least 4 feet of flat surface on streets where the speed limit is 30 mph or faster. It also bars people from standing in or walking into the travel lanes of streets or highway on- and off-ramps unless they are legally crossing.
City Attorney Lauren Keefe said the new version was crafted to address various concerns raised last year by the U.S. Court of Appeals.
“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,” Keefe told the council Monday.
A city analysis determined that the ordinance would affect just over 17% of the linear feet of higher-speed arterial roadway medians across Albuquerque.
Councilor Isaac Benton said that leaves about 83% for constitutionally protected expression and that he co-sponsored the ordinance because he believed it would improve safety.
Although the ordinance cites only one case where a person sitting in a narrow median in Albuquerque was struck and killed by a vehicle, Benton said he is also concerned about people who may be sitting on slim medians with their feet over the curb.
“It’s not just death — there are many, many opportunities for a serious injury as well,” said Benton, who co-sponsored the bill with Brook Bassan at the Keller administration’s request.
Pat Davis, Renee Grout, Trudy Jones, Dan Lewis and Louie Sanchez joined the sponsors in support.
Tammy Fiebelkorn and Klarissa Peña cast the dissenting votes.
Peña raised concerns about enforcement, noting that the city already lacks enough personnel to focus on other ordinances.
Fiebelkorn said the ordinance’s purpose seemed “trivial” given the scope of the resulting restrictions, noting that it will take away some of the most desirable protesting spots.
“I’ve been an activist for 44 years,” she said. “When I’m protesting something or holding up a political sign, it matters where you are. I don’t want to have a political sign three blocks from where I wanted to have it.”
Fiebelkorn did join Bassan to pass an amendment ensuring that law enforcement issue warnings to people who violate the ordinance before proceeding to citations or arrests.
The American Civil Liberties Union of New Mexico did not have a comment Monday, according to a spokesperson.
The ACLU had sued the city over the original Pedestrian Safety Ordinance passed in 2017, representing multiple plaintiffs including a woman who is homeless and routinely used the medians to ask for donations and individuals who distribute donations from their vehicles.
U.S. District Court Judge Robert Brack ruled against the city in the case, determining the ordinance violated free speech protections. It was “not narrowly tailored to meet the City’s interest in reducing pedestrian-vehicle conflicts,” Brack wrote.
The city’s 2017 Pedestrian Safety Ordinance was more restrictive, 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 City Council slightly amended the ordinance in 2019, but the U.S. 10th Circuit Court of Appeals ultimately upheld Brack’s ruling in 2021.