National Public Radio's MARKETPLACE: Law against panhandling ruled too harsh

 

 

 

 

 

 

 

 MARKETPLACE for Friday, September 28, 2012

by Krissy Clark
   
[listen to audio version here]

Depending on where you live and or work, you've probably been stopped by a stranger on the street at some point -- maybe many -- and been asked whether you've got any change you can spare. Everyone's got different reactions. In a growing number of cities, though, the police answer with a ticket. Anti-panhandling laws are becoming more common across
 the country, but this week a judge in Northern California ruled that one ordinance went too far.

How do you feel when someone asks you for money?

“It saddens me,” says Linda Gray, an office worker who had just been approached for money on the streets of downtown LA.  She will give a little money sometimes, she says, but “I just wish there was more we could do.” For others, being asked for money is an annoyance “maybe like a pigeon that poops on your head,” says Art Lopez, who was recently approached for money on his way to work.

A lawyer named Gordon Ownby says he usually politely declines to give money, but that there have been times where things have gotten aggressive -- which "obviously makes [him] very angry."

Some of the worries Ownby, Lopez and Gray expressed were at the root of a law passed a few years ago, hundreds of miles away in the town of Arcata, Calif. It banned people from asking for money -- aggressively or non-aggressively, either verbally or with a sign-- within 20 feet of certain locations like stores, intersections and bus stops. 

Arcata is college town known for pot farms, redwood trees and lots of itinerant panhandlers. So many panhandlers, says Mayor Michael Winkler, that locals felt like when they were approached “it was difficult for them to say no.”  He says he spoke to many older women and children who especially “felt very intimidated.”

Richard Salzman, an Arcata citizen who filed a lawsuit against the panhandling ban, agrees that the number of panhandlers in his city can be annoying. But he says to ban “a person passively holding a sign on the corner” struck him as a violation of free speech.

He staged a one-man protest, where he stood on the corner next to a restaurant employee holding a sign advertising five dollar pizzas -- a form of speech that perfectly legal in Arcata. Salzman held up a sign next to him: "Please buy me a pizza before I'm arrested for holding this sign."

Salzman also filed a lawsuit against portions of the panhandling ban and this week Humboldt County Superior Court Judge Dale A. Reinholtsen came down in his favor, ruling that it was unconstitutional for Arcata to “restrict solicitation merely because it makes people uncomfortable.” He ruled that the town can only enforce the ban near ATMs and on public transit.

Back on the streets of LA, I asked a young man in a dirty sweatshirt what he thought about the ruling -- after he asked me for fifty cents.

He didn't want to give his name, but he said, “I never thought I'd have to ask anyone for money. I guess you do what you got to do.”

---

[ My attorney Peter Martin and I did a one hour interview on The Jefferson Exchange which aired on Jefferson Public Radio (JPR) October 17th, 2012. You can listen to the podcast here. ]

--

[Coverage of this story on Free Speech Radio NEWS can be heard here.  Jump to the 5:00 mark.]

Times Standard on Arcata Lawsuit

 Judge tosses most of Arcata panhandling ordinance, city can appeal; Salzman: 'We knew we were in the right'

Grant Scott-Goforth/The Times-Standard
09/27/2012

The 2010 Arcata panhandling ordinance has been largely thrown out by Superior Court Judge Dale A. Reinholtsen.

The ordinance banned panhandling in certain locations around the city, including major intersections, pedestrian bridges and the entrances and exits to businesses. Reinholtsen stated in a court ruling this week that location restrictions were “largely unconstitutional.”

The ordinance also banned “aggressive panhandling,” but the legal challenge by Arcata resident Richard Salzman and attorney Peter Martin did not address that portion of the law.

”There appears to be no dispute that Arcata has legitimate interests in prohibiting 'aggressive panhandling,' so the Court will not dwell on that,” the court ruling states.

Martin called the judge's decision “detailed and thoughtful.”

”We're very gratified by the court's ruling,” Martin said. “We're happy to see that the city of Arcata will now have to respect the free speech of all of its citizens.”

A judgment -- the final action in the lawsuit -- will be entered in favor of Salzman on behalf of the judge. The city will have 60 days to appeal.

Arcata City Manager Randy Mendosa said the city attorney and the attorney defending the city in the lawsuit will review the ruling and likely meet in closed session with the city council prior to its Oct. 3 meeting.

”All we can say is that we are currently analyzing
the court's decision,” Mendosa said.

Mayor Michael Winkler said the city attorney worked hard to draft the ordinance based on similar laws in other cities.
”I'm disappointed,” he said.

The council and staff will meet with the city attorney about what steps to take next, Winkler said. That meeting has not been scheduled.

Salzman said he was pleased with the ruling and had mixed feelings about the possibility of an appeal.

”We knew we were in the right,” he said, adding that the city overreached and forced him to use the judicial system. “It's a testimony to the government that our founders so brilliantly structured.”

”I'm of two minds about appealing,” Salzman continued. “I'd prefer that they don't waste taxpayer money on a folly like that.”

Still, Salzman said, he is confident that the ruling would stand if appealed, making the ruling case law that other jurisdictions could reference in similar cases.

Reinholtsen struck down large portions of the law, allowing only minor exceptions to the ordinance.

”The core difficulty with evaluating the Ordinance is that it pits Arcata's legitimate interests against the speech rights of individuals,” Reinholtsen wrote in the ruling.

The ruling states that Arcata has a legitimate interest in “preventing congestion and controlling traffic” and that targeted panhandling can be disruptive to traffic flow. It goes on to state that Arcata has a valid interest in protecting its citizens from unwanted communications, or “the right to be let alone.”

However, Reinholtsen ruled that the restrictions infringed on constitutional rights.

”It is only a slight exaggeration that new laws that restrict speech based on the content of that speech are impossible to uphold,” the ruling states.

”In sum, the Court finds that the legitimate interests advanced by Arcata with respect to the targeted panhandling prohibition are insufficient in most instances to justify the infringement of solicitors' right, and, for that reason, it is largely unconstitutional,” the ruling states.

”The Court rules that the location-specific prohibition on panhandling is unconstitutional, with two exceptions. The exceptions are that Arcata may continue to prohibit 'panhandling' within twenty feet of any unenclosed ATM, and Arcata may continue to prohibit 'panhandling' 'in any public transportation vehicle,'” the ruling reads.

Public transit vehicles are not considered public fora, according to the ruling.

The court ruled that people using an ATM have their money and financial security at stake, and that “soliciting people while they are using ATMs heightens the feelings of duress and intimidation that can be felt by those solicited.”
The full text of the ruling can be viewed online at www.times-standard.com.

Grant Scott-Goforth can be reached at 441-0514 or gscott-goforth@times-standard.com.

LA Times on Arcata Lawsuit

Arcata panhandling law mostly struck down by judge

A Humboldt County judge says provisions of the ordinance banning non-aggressive panhandling within 20 feet of stores, intersections, parking lots and bus stops are unconstitutional.

By Lee Romney, Los Angeles Times
September 27, 2012

 A homeless man who calls himself Big Al sits on a guardrail with his pet mastiff on California Highway 101 in Arcata last June. Big Al was prosecuted under the city's ordinance restricting panhandling. (Los Angeles Times / July 10, 2012)

SAN FRANCISCO — A Humboldt County Superior Court judge has struck down as unconstitutional most of an ordinance that banned non-aggressive panhandling in Arcata within 20 feet of any retail store, intersection, parking lot or bus stop, among other places.

The ruling, released Wednesday, allows the North Coast town to enforce the ban under only two narrow circumstances: near unenclosed ATMs and on public transit vehicles.

The college town long has been a magnet for vagrants, who congregate on its New England-style central plaza. And officials long have struggled with how to address the often-annoying requests for money, booze or pot.

Passed by the City Council two years ago, the sweeping ordinance banned aggressive panhandling — a stance that was not challenged in court.

However, Judge Dale A. Reinholtsen sided overwhelmingly with a resident who challenged portions of the law that forbade non-aggressive panhandling — including the holding of a sign — in vast swaths of the town's commercial districts and beyond.

"Arcata may not restrict solicitation merely because it makes people uncomfortable," Reinholtsen wrote. "To put it simply, speech rights prevail in a public forum (e.g., public parks, streets, etc.) in the absence of unique circumstances."

While Reinholtsen found the ordinance "narrowly tailored" to address the problem officials sought to remedy, when weighing the city's interests against free-speech rights he concluded that the balance "disfavors Arcata in most instances."

The lawsuit was brought by Richard Salzman, who carries a copy of the Constitution in the pocket of his sport coat. He said he was pleased that the judge "agrees with me in general that the city overreached, and that this is an infringement of free speech."

Mayor Michael Winkler had voted for the broad restrictions along with two others on the five-member council after receiving legal assurances that a number of cities had approved similar bans.

"I'm disappointed," Winkler said. "I thought it was carefully crafted, and I'm sorry that the ruling was what it was."

A report last fall by the National Law Center on Homelessness & Poverty found that slightly more than half of 234 cities surveyed had bans on aggressive panhandling, the same proportion had outlawed it in specific areas, and one-fourth forbade begging citywide. Most of the ordinances have not been challenged.

Winkler declined to comment on the content of the ruling or the possibility of an appeal, saying the city attorney had advised officials not to do so.

Attorney Peter Martin, who represented Salzman and serves with him on the board of the Humboldt Civil Liberties Defense Fund, said the judge "really did wrestle with the issues, and if there is an appeal it will show he made a real effort to analyze the law and balance it on both sides."

Martin said he doubted that Arcata voters "want to see their council spend any more money appealing." But if the city were to appeal and lose, "it would create a statewide rule."

lee.romney@latimes.com

New York Times: Homeless Are Fighting Back Against Panhandling Bans

The New York Times
October 5, 2012

Homeless Are Fighting Back Against Panhandling Bans

By DAN FROSCH

COLORADO SPRINGS — Panhandlers, with their crumpled signs, coffee cups and pleas, are as customary a sight in many American towns and cities as Starbucks or McDonald’s. But for one Utah homeless man, the right to ask people for money has become a personal legal crusade.

Steve Ray Evans, who uses a sign to ask drivers for money, has been successfully suing Utah cities that have cited him for panhandling, arguing that his right to free speech is being violated by a state statute that bans soliciting near roadways.

“This is my only source of income,” said Mr. Evans, 54, whose sign reads “Starving Please Help!” “I do it for survival purposes. I feel as though a lot of other individuals depend on it, too.”

Mr. Evans said he had received more than 50 panhandling citations, and cases like his have become increasingly common of late. With the downturn in the economy, cities across the country have been cracking down on an apparent rise in aggressive panhandling, while advocates for the homeless and civil liberties groups contend that sweeping bans on begging go too far.

According to a report by the National Law Center on Homelessness and Poverty that examined 188 cities, there was a 7 percent increase in prohibitions on begging or panhandling between 2009 and 2011.

“Our sense is that cities are responding to the increasing number of chronically or visibly homeless people due to the economic crisis,” said Heather Maria Johnson, a civil rights lawyer for the group. “Rather than addressing the issue of homelessness, they are adapting measures that move homeless people out of downtowns, tourist areas or even out of a city.”

Case law on the issue has varied over the years, and local panhandling laws differ widely. But several recent legal decisions have favored the homeless.

Last January, after Mr. Evans’s initial lawsuit, Salt Lake City agreed to stop enforcing the state statute.

But Utah fought the suit, arguing that panhandling near roads was dangerous. A federal judge sided with Mr. Evans in March, ruling that the statute was unconstitutional. In June, the City of Draper agreed to stop enforcing the ordinance after Mr. Evans filed suit there as well.

After a lawsuit filed by a homeless man and a disabled veteran who were arrested on panhandling charges in Grand Rapids, Mich., a federal judge ruled in August that the state’s blanket ban on public begging also violated the First Amendment. Michigan’s attorney general, Bill Schuette, has appealed, arguing that begging is not protected speech.

In many cases, the dispute over panhandling centers on whether a city’s efforts to criminalize aggressive begging to protect pedestrians and businesses ends up overreaching.

After the Northern California city of Arcata passed an ordinance banning panhandling in 2010, a local resident, Richard Salzman, sued in State Superior Court in Humboldt County.

Mr. Salzman, 53, an agent for commercial illustrators, said he had no problem with Arcata’s efforts to curb aggressive panhandling. But he objected to the city — long known for its liberal leanings — also prohibiting panhandling that was not necessarily threatening on its face, like merely asking for money within 20 feet of the entrance to a store or restaurant.

“I don’t know how much more passive you can be than standing there silently holding a sign,” he said. “This is a slippery slope we don’t want to go down.”

Last month, Judge Dale A. Reinholtsen ruled that Arcata’s law was indeed too broad and struck down most provisions that prohibited all panhandling in specific locations.

“The court finds that the legitimate interests advanced by Arcata with respect to the targeted panhandling prohibition are insufficient in most instances to justify the infringement of solicitors’ speech rights,” Judge Reinholtsen wrote in his opinion.

In Colorado Springs, city officials are weighing a panhandling ban for a commercial section of downtown, after merchants complained that begging was interfering with business.

“What they have told us is that the persistent sort of solicitation by people who just camp out in front of stores every day downtown has really discouraged tourists, shoppers and families from coming downtown,” said City Attorney Chris Melcher.

Mr. Melcher acknowledged that there could well be a legal challenge if the ordinance is approved. But he said the city, which already bans aggressive panhandling, was committed to drafting a law that would avoid prohibiting lawful speech.

On a blustery Thursday morning in Colorado Springs, Turtle Dean, a 36-year-old homeless man, said that he did not think the proposed ban was fair.

“I only ask for money for stuff that I need to survive. Clothes and food,” said Mr. Dean, who panhandles downtown and vowed to continue begging, ban or not.

The most recent suit by Mr. Evans, who is being represented by a lawyer with the Utah Civil Rights and Liberties Foundation, was filed last month against the City of American Fork, where he was recently cited for panhandling.

While city officials consider whether to fight the suit, American Fork has agreed not to pursue the charges against him for now and to temporarily stop enforcing the statute.

Mayor James H. Hadfield said Mr. Evans had been cited because he was panhandling in a construction zone and people had complained.

“I have nothing against Mr. Evans or people who do these types of activities and use common sense,” he said. “We react to people’s complaints. We are not on a witch hunt.”