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Safety and Censorship

ACLU New Mexico says proposed city median bill isn’t constitutional

(Steven Hsieh)

Every day in Santa Fe, individuals stand on the medians of busy intersections, many holding signs, others pushing loaded shopping carts and some walking up and down the medians soliciting donations from drivers. That picture could soon change, if Mayor Alan Webber has his way.

A new bill he introduced proposing a ban on sitting or standing for any period of time on any median less than 36 inches in width in Santa Fe—punishable by a fine of up to $500 and/or up to 90 days in the county jail—will head for public comment at the April 24 governing body meeting before a potential vote in May. Webber tells SFR it’s an effort that “has been on my personal radar screen for quite a while.”

“The same challenge and danger presents itself, and I’ve seen it for a while and I haven’t known how to address it. The challenge is we have got people in very narrow medians—frequently with their pet dog and cars going by or stopping at a light—and all it takes is one interaction between a dog and a median,” Webber says. “If that were to happen, or maybe it has happened, you’ve got a fatality, you’ve got a bad situation, so the safety problem has been severe and ongoing.”

To address the issue, he says, the City Attorney’s Office drafted “as simple a median safety bill as you can draft,” adding it’s “reasonable and legal” and doesn’t carry a penalty any greater than a traffic violation. Webber notes another component of the city’s “clean and safe spring” effort, from which the median safety proposal originates, includes redesigning medians so they are “safer and easier to maintain…so the idea is to try to put pieces together that will address both public safety and the look and feel of the city.”

The bill has already sparked criticism from the American Civil Liberties Union of New Mexico (Webber says he plans to meet with both the ACLU and the New Mexico Coalition to End Homelessness regarding the proposed ordinance) for both its two-sentence length and the constitutional issues it raises. ACLU of New Mexico Legal Director María Martínez-Sánchez tells SFR attempts to ban individuals from standing or sitting on medians have popped up all over the state, and while “each iteration of these bills is a little bit different,” this one “doesn’t even try to be constitutional.”

“It just outlaws any type of speech in any median less than 36 inches,” Martínez-Sánchez says, noting the city’s proposal is vulnerable to a legal challenge in her opinion. “Not that I think any of the other ordinances are legally sound, but if they do [attempt to regulate median activity], these laws do need to allow for ample alternative places for people to engage in speech activities, whether that’s engaging in protest, selling newspapers or soliciting donations, and this one doesn’t seem to do much in that respect.”

Webber, in turn, says he’s “an absolute proponent” of First Amendment rights, which he characterizes as “the bedrock of democracy.” His bill, he notes, doesn’t target a particular population.

“This is not about people who are unhoused or exercising free speech. That just isn’t what we’re doing here,” Webber says. “I don’t think we should confuse that with safety. I think people who are unhoused also have a right to safety. It shouldn’t be an ‘either/or choice,’ they should have every right and privilege to safety and housing as anyone else.”

Martínez-Sánchez says that explanation is essentially laughable and that elected officials may say such bills don’t target specific populations “to try to make [them] constitutional” but proposals such as Webber’s “are meant to criminalize homelessness, and that’s exactly what they’re doing.”

Moreover, she notes, “People in Santa Fe aren’t dumb. New Mexicans aren’t dumb. We know that these ordinances are targeted at the unhoused population. That’s just the bottom line. The policymakers know that too, so they’ve gotten a little smarter in the way they talk about them. But that doesn’t change the fact.”

Webber notes several initiatives the City of Santa Fe has taken to help those experiencing poverty, such as free wifi in trailer parks; rental assistance through the city’s Affordable Housing Trust Fund; and a Mayors for Guaranteed Income study. Webber adds he’s “not a lawyer, but I know our city attorney’s office has researched this particular safety regulation, and it seems to stand up to this reasonable test” of First Amendment rights infringement, describing it as “good policy,” but he “can’t predict what anyone else will do” regarding potential legal challenges.

Indeed, the city attorney’s office references a 2019 10th Circuit Court of Appeals decision in Evans v. Sandy City in which the court upheld a similar ban on median activity as a “valid time, place, or manner restriction on speech.”

Martínez-Sánchez disagrees with the city’s assessment, noting the Sandy City decision is not the most recent in the 10th circuit, which also ruled on a median law in Albuquerque in 2021. That decision, she says, ruled the ordinance unconstitutional though the City of Albuquerque made similar arguments related to safety. Furthermore, “it’s not a one size fits all type of situation.”

“These laws have to be created for the specific municipality that you’re in,” she says. “So just because something was acceptable in Sandy City—a city in another state with a different population with a different kind of makeup of the city in terms of how the mediums are placed in the streets—that has nothing to do with Santa Fe, New Mexico and how its streets are and the public safety risks. I think people are trying to say that Sandy City is now the law of the land for everyone and everywhere, but that’s simply not the case. That’s not how constitutional law with respect to free speech works.”

Via text, City Attorney Erin McSherry tells SFR that the city’s understanding is Sandy City’s decision “is still good law.”

“Although Brewer, the Albuquerque decision, came out in 2021, Albuquerque’s ordinance was adopted in 2017 before Sandy City came out,” McSherry writes. “The 10th Circuit Court distinguished Albuquerque and Sandy City, preserving its holding in Sandy City.”

A memo accompanying Webber’s proposed bill cites statistics from the Governor’s Highway Safety Association, which drew on data from the state highway safety offices and US Census Bureau to conclude New Mexico had the highest pedestrian fatality rate by state per 100,000 population, from 2021 through 2023. Martínez-Sánchez challenges the city to dig deeper into the statistics, saying: “I would venture to guess that the causes for accidents in Santa Fe are going to be very different” than people standing on medians, which she adds the ACLU discovered in the process of its fight against Albuquerque’s ordinance.

Webber says even if the bill is approved, he hopes “there will be absolutely no need for enforcement.”

“The goal of doing prevention of unsafe situations is that it will lead people to recognizing we have really been skirting a problem and people who might have been inclined to stand in a median or waiting there won’t,” he says, adding if someone receives a citation they can go to the court and explain their case. “The adjudication is often dependent on the circumstances…We’re not looking to punish people any more than any other traffic violation, and I hope what it does is to encourage people to say community wide, ‘This is something we’ve accepted, but it’s an accident waiting to happen, so let’s stop.’”

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