Los Alamos County Attorney Alvin Leaphart

BY MAIRE O’NEILL

Los Alamos County Council unanimously voted Tuesday evening to pass an ordinance repealing an article in Chapter 28 of the Los Alamos County Code addressing panhandling.

The Council had enacted a moratorium on the enforcement of the panhandling provision in August after receiving a letter from the American Civil Liberties Union-New Mexico. County Attorney Alvin Leaphart’s office reviewed the letter and prevailing case law and first amendment jurisprudence recognized that there are some first amendment concerns. Leaphart told the Council his office recommends repealing or replacing the ordinance.

“If later it becomes apparent that there is some kind of aggressive panhandling problem in Los Alamos County that isn’t addressed by current laws on the books, we can revisit the issue,” Leaphart said.

He said most of the conduct described in the aggressive panhandling ordinance is illegal and criminal conduct regardless of whether a person is panhandling or not, such as threatening someone on the street, or touching somebody in a non-consensual manner.

“Those are crimes of simple battery. Assault is giving the impression that you’re going to do harm to somebody, regardless of whether you touch them. Disrupting the flow of traffic, all of those things fall under the common law crimes like disorderly conduct, simple battery, simple assault and we believe we have sufficient misdemeanor criminal statutes to be able to deal with that kind of misdemeanor criminal conduct,” Leaphart said.

The ACLU told the County that in recent years there has been an uptick in laws that effectively criminalize homelessness and extreme poverty including many laws that prohibit individuals from peacefully asking for passersby for help.

“Not only do these ordinances violate the constitutional rights of impoverished people but they are costly to enforce and serve to exacerbate problems associated with homelessness and poverty. Harassing, ticketing and or arresting poor persons for asking for help is inhuman, counter-productive and in most cases illegal,” the ACLU letter states. “That is why the ACLU has devoted resources in recent years to reviewing and challenging such ordinances here in New Mexico.”

The ACLU recently filed an action in federal court challenging the constitutionality of Albuquerque’s anti-panhandling ordinance.

The organization urged Los Alamos to seek alternatives to criminalizing homelessness noting that numerous communities have opted for “compassionate needs-driven approaches to homelessness” that are more effective, more humane and less costly. It states that the Los Alamos ordinance forbids myriads of forms of panhandling but allows other types of speech such as signs boycotting a business or supporting a political candidate and that distaste for a certain type of speech or a certain type of speaker is not a legitimate or compelling interest.

“As the Supreme Court explained, the fact that a listener on the sidewalk cannot ‘turn the page, change the channel or leave the website’ to avoid hearing an uncomfortable message is ‘a virtue, not a vice’,” the letter states. It also suggested that the County cannot “take a sledge hammer to a problem that can and should be solved with a scalpel”.

“Los Alamos law prohibits panhandling in a variety of locations including that which takes place near financial institutions, parks, cafes, bus stops, bus stations and publicly owned or operated buildings, on medians, streets, roads and highways and when it involves an occupant of a motor vehicle that is in traffic. However, it does not prohibit individuals standing in those exact same locations engage in other sorts of speech such as sharing political messages, advertising for business or simply engaging in a conversation with an occupant of a vehicle. Unsurprisingly, every court to consider a regulation that bans requests for charity within an identified geographic area has stricken the regulation,” the ACLU letter says.

Council Chair David Izraelevitz asked how the original ordinance passed muster and if there was more recent case law that highlighted the issue or lessons learned, things the Council should look at before passing an ordinance like this again. Leaphart said he did not have the legislative history on why the ordinance was passed or what kind of pressures existed to pass this kind of ordinance. He said he knows there has been vigorous debate and discussion among local governments in the civil libertarian lobbies like the ACLU.

“I think the lesson learned is that if we draft another ordinance we should consult more closely with the International Municipal Lawyers Association model ordinance and probably discuss proposed actions with folks like the ACLU to see how they feel and sort of come to some consensus with the interest of the municipality in making sure we have an ordinance that is generally acceptable,” he said.

Council Vice Chair Chris Chandler asked who sponsored the ordinance. Leaphart said he didn’t research it but he thought it was the Los Alamos Police Department that wanted the ordinance in place.

Assistant Attorney Kevin Powers said at the time in 2015 when the ordinance was passed it was sponsored by LAPD.

One of the concerns at that time was just having something on the books in case instances of these types of activities started to occur, Powers said. He said at that time Albuquerque was experiencing some aggressive panhandling and one of the concerns at that time and something was need to address the problem that could come.

Current Councilors Izraelevitz, Reiss, Sheehy and O’Leary were on the Council when the ordinance was presented in 2015.

Council Antonio Maggiore said he was happy to see the ordinance being repealed.

“Anything that gets us in trouble or tramples on perceived first amendment rights needs to be addressed and I’m happy that we’re doing it in a complete fashion,” he said.

Councilor Chandler said she thinks there is a lessons learned.

“If you don’t have a problem, don’t start making things criminal. I’ve lived here 25 years and I’ve never had a panhandler come up to me, ever. So the lesson I would be thinking of is when you get a law or an ordinance like this, ask yourself is it a problem, and obviously it’s not a problem.  Just creating criminal laws, which is exactly what this is, to satisfy some sort of perceived thing that’s going on in Albuquerque,” she said.

Chandler said her recollection was that the panhandling issue was a highly controversial one in 2015 and the ACLU was watching it. She said she didn’t know why that wasn’t brought before Council at the time.

“Challenging things is a good thing and I think we all need to be mindful of that when we get ordinances like this (and ask) what’s the problem we’re trying to fix. As far as I can tell there’s no problem that needs fixing with an ordinance like this and many people view it as a means to target people who aren’t as well off or whatever, and that’s why people find them objectionable. They’re easily misused – not that I’m saying our people would – but they’re easily misused and I’m very glad we’re taking them off the books,” she said.

She added her kudos to the Council for not being defensive in response to the ACLU letter and having been brought new information, deciding to move forward in a positive way.