Las Cruces Police Chief proposes new shopping cart ordinance during City Council work session

Citing public safety, blight and improving quality of life for residents, Las Cruces Police Chief Jeremy Story presented two modifications of existing ordinances regarding solicitation and proposed a new ordinance regarding shopping cart containment and retrieval.

Story presented during a City Council work session on Monday. The work session included pushback from some councilors, but had enough support to move forward to a future meeting.

There was also 20 minutes of public comment, mostly in support of the changes from local business owners but some opposition was voiced, including from an ACLU advocate and a speaker from New Mexico Coalition to End Homelessness.

It's unclear when and if Council would be expected to vote for approval for one of, or all three, ordinances. Mayor Eric Enriquez said the ordinances could be presented as soon as May, but could also be later this summer as the state legislature could be addressing similar issues in an upcoming special session in July.

"We don't want to go and then have to come back and change things," Enriquez said. "We can't be anything less than the state so we want to make sure to do what is right.

"It could be sooner if we understand that we are on the same page with the special session. There are other municipalities, even in the state of New Mexico, that have already done some changes in their panhandling ordinances."

What the shopping cart containment and retrieval ordinance involves

Story repeatedly stated that members of the unhoused population would not be arrested for possessing a shopping cart. Their property would not be discarded. The goal, he said, is to help businesses, while having services in place to address mental illness or drug addiction, as well as a diversion court established to prevent repeat offenders and incarceration.

"Nobody is going to be arrested for possession of a shopping cart or a violation of solicitation ordinances," Story said. "The differences between a physical arrest and a criminal citation on paper may not be much, but in real life, going to jail or getting a piece of paper is a very different thing.

"We don't have the services we need when it comes to mental health in the southern part of New Mexico … we also don't have the resources we need for substance use. But there are a lot of resources here. They are not at capacity. Why? Because at this point, there is very little ways to compel people to get that treatment."

According to Story, an April 23 project involving LCPD community outreach, codes, parks and recreation and others gathered 162 shopping carts in two hours with a total value of $32,000. Walmart was responsible for 132 carts. The project mirrored the results of a similar project in 2020.

The ordinance sets up several requirements for businesses that use shopping carts. Businesses would be required to affix a sign/placard to carts and submit a shopping cart plan approved by community development that is to be renewed every two years. Businesses can also apply for an exemption if they already take certain measures against the theft of carts from their premises. Businesses would have three business days to retrieve shopping carts if notified by the city.

Enforcement of the ordinance could include a requirement that a business abides by a different plan, or violations for individuals could result in a petty misdemeanor, between $100 and $500 fines depending on number of violations within the same year. Included in the ordinance is that at the discretion of a sentencing judge, any person convicted under the article may perform community service, which could consist of entering treatment for mental illness, substance abuse or both.

What the modified ordinances propose

There were revisions to two existing ordinances discussed involving solicitating and loitering.

According to Story, the changes were minor in nature and made to remove potentially unconstitutional language or to narrow the interest to public safety. Story said the changes should allow both ordinances to be enforceable.

In 2018, the city revised some of its panhandling ordinances in response to objections from the American Civil Liberties Union. In 2015, the U.S. Supreme Court indirectly affirmed free speech protections for panhandlers when it ruled a sign ordinance in an Arizona town violated the First Amendment because it restricted the content of speech on signs. In 2018, the City suspended enforcement of its ordinances until they could be revised to comply with free speech protections. City Council voted to revise two ordinances related to panhandling.

According to a proposed ordinance regarding soliciting, "It shall be unlawful for any person to solicit money or other things of value, or to solicit the sale of goods or services in the manner described in subparagraphs (1) through (3) of this section.

Solicitation is prohibited "in an aggressive manner in a public area or private property within city limits." Additionally, "On private property if the owner, tenant, or lawful occupant has asked the person not to solicit on the property, or has posted a sign clearly indicating that solicitations are prohibited on the property." Finally, "From any occupant of a motor vehicle that is in traffic on a public street, if the solicitation would cause any person to walk upon a portion of the roadway not clearly designated and/or marked for pedestrian foot traffic."

The term, "aggressive" in existing code defines soliciting that includes physically touching another person without consent; following a person being solicited in a manner where the person to fear physical harm; continuing to solicit within five feet of a person who has made a negative response; blocking the safe passage of a person being solicited; intentionally using obscene or abusive language or gestures; and approaching a person in a manner the person fears imminent harm or is intended to intimidate the person being solicited.

The "standing or loitering on or near street or highway ordinance" would make it unlawful for any person to stand or loiter on a street or highway when such activity, "(1) Causes the person performing the activity to enter onto the traveled portion of a street or highway. (2) The person performing the activity is located such that vehicles cannot move into a legal parking area safely."

It would also be unlawful, " to stand or loiter on any highway included in the interstate system including any entrance to or exit from the highway." The traveled portion of the street or highway shall mean that portion of the road normally used by moving motor vehicle traffic, according to the ordinance.

Story said there were 23 total pedestrian crashes in 2020 and there were 45 pedestrian crashes in 2023.

Council will move forward with items, but concerns voiced

Enriquez, District 1 Councilor Cassie McClure, District 2 Councilor Bill Mattiace and District 3 Councilor Becky Graham all voiced support to move the ordinances to a future meeting for a potential vote.

District 6 Councilor Yvonne Flores did not suggest moving them forward.

"I find it a bit harsh," Flores said during the work session. "You (Chief Story) did touch on mental competency. It's not to say there is a problem. I recognize there is a problem. I don't know if this is the solution."

Mayor Pro Temp Johana Bencomo said if the ordinances move forward, she would propose a needs assessment for individuals when interacting with law enforcement, that the City's LIGHT team is used when responding to individuals when possible and for the city to support adding at least two staff members to the community outreach team at Community of Hope.

Bencomo did express doubts that the ordinances would have the desired effect, and could add to the problems the unhoused already face.

"If we continue with something like this, I deeply believe we may be making things worse," Bencomo said. "But as we move forward, I also want to make sure there is as much harm reduction as possible. I want to come to the table and be a good team player."

Graham ultimately voiced support for the ordinances, placing her trust in Story and his department.

"I trust that our officers will, in good faith, work to find the critical balance necessary to improve safety and security for all residents while also increasing the chance that those facing challenges like addiction and mental health issues will plug into available resources," said Graham while reading from a prepared statement.

Jason Groves can be reached at 575-541-5459 or jgroves@lcsun-news.com. Follow him on X @jpgroves.

This article originally appeared on Las Cruces Sun-News: Las Cruces Police Chief proposes new shopping cart ordinance during City Council work session