< /head > Colorado Coalition for Human Rights: Panhandling in Denver

Saturday, November 19, 2005

Panhandling in Denver

An interesting article from the Denver Post about the City Council's attempts to limit panhandling in the downtown area. From the article:

Denver took the first step Wednesday toward clamping down on panhandlers with initial approval of three new ordinances that limit beggars' activities but also restrict how and when police can arrest them.
The City Council's safety committee endorsed measures to prohibit beggars from sitting or lying down in downtown Denver, stepping out into traffic or approaching diners at outside restaurant tables. But police would not be able to arrest violators without first giving them a warning or attempting to connect them with mental-health or substance-abuse counselors.
The proposals are the city's first attempt at restricting the homeless with enforceable laws since Mayor John Hickenlooper's 10-year plan to end homelessness was endorsed by the council in October.


While the proposed ordinance does make arrest a "last resort" it is hard for me to see how the city can put a limit on panhandling and put a limit on free speech. I guess a simliar ordinance in Seattle was challenged on such grounds, but was upheld by the 9th Circuit Court. If anyone has any thoughts on this please leave a comment.

Click here to read the article.

Also check out Poor, Poorer, Poorest:The Politics of Poverty by CU-Denver Professor Tony Robinson

--Tom Hayes

2 Comments:

Blogger NSLS said...

Here's what the American Law Reports (ALR) has to say about First Amendment challenges to panhandling statutes (It's long... but comprehensive. Covers pretty much all of American jurisprudence on the matter.). Note that something from part [b] would have to embace the Denver statute for a good legal argument to be made against the Denver ordinance.

§ 3. Freedom of speech

[a] Held valid

In the following cases, where laws regulating begging, panhandling, or similar activity by poor or homeless persons were challenged as violating freedom of speech, the courts held that the law at issue was valid.
In Young v New York City Transit Authority (1990, CA2 NY) 903 F2d 146, cert den (US) 112 L Ed 2d 528, 111 S Ct 516, the court held that a regulation prohibiting begging and panhandling in the New York subway system did not violate the free speech provision of the First Amendment. Action was brought in the district court on behalf of two homeless men as representative plaintiffs for a class of homeless and needy persons who beg and panhandle in the New York City subway system against various transit authorities and other defendants complaining that the prohibition of begging and panhandling in the subway contravenes their rights to free speech, due process, and equal protection of the law. The defendants appealed from a judgment entered in the district court permanently enjoining the enforcement of the regulation. The challanged regulation prohibited all begging and panhandling in the subway system and provided for some utilization of the transit system for certain noncommercial activities, such as solicitation for charitable purposes, subject to certain place restrictions. The court began its discussion by referring to a study, in evidence at the district court, which pointed out the fear and intimidation beggars and panhandlers created for subway riders and drew a distinction between the need for rules against begging in the subway and the city streets because of the captive nature of the subway. The plaintiffs contended that begging was pure speech fully protected by the First Amendment. However, the court determined that the object of begging and panhandling was the transfer of money and that speech was not inherent to the act or the essence of the conduct. The court noted that the test for determining whether particularized conduct possesses sufficient communicative elements to bring the First Amendment into play was whether a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it. Based on this criteria, the court concluded that begging was not inseparably intertwined with a particularized message, and that while arguably a beggar may have an intent to give a particular message such as "government benefits are inadequate," there was hardly a great likelihood that subway passengers who witness the particular conduct were able to discern what the particular message might be. The court also noted that in the subway it is the conduct of begging and panhandling, totally independent of any particularized message, that passengers experience as threatening, harassing, and intimidating. The court also disagreed with the plaintiffs' contention that occasional questions from or conversations with passengers resulting from the begging made this activity protected, finding that the incidental speech was not one and the same as the conduct being regulated. The court also disagreed with the district court's finding that a meaningful distinction could not be drawn for First Amendment purposes between solicitations for charity and begging. The court noted that there was evidence before the district court that passengers experience begging as intimidating and threatening, but there was no evidence that they felt intimidated by organized charities. The court concluded that the transit authorities made a reasonable distinction between the harmful effects of begging and the First Amendment interests of organized charities and made a judgment that while solicitation by charities could be contained to certain areas of the system, the problems posed by begging and panhandling could be addressed by nothing less than the enforcement of a total ban. Assuming arguendo that begging and panhandling possess some degree of a communicative nature, the court held that the regulation was not in violation of the First Amendment. The court determined that rather than being directed at the communicative nature of the conduct, this was a regulation that proscribed a particular conduct in order to protect a governmental interest unrelated to the suppression of free expression, which comes under the relatively lenient level of scrutiny represented by the O'Brien [FN19] standard. Pursuant to O'Brien, the court pointed out, a government regulation is sufficiently justified when: (1) it is within the constitutional power of the government, (2) it furthers an important or substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Applying this standard to the present case, the court concluded that (1) the government's power to regulate was not genuinely at issue; (2) the regulation advances substantial governmental interests because subway passengers perceive begging and panhandling as intimidating, threatening and harassing; (3) the regulation is content neutral and is justified on the ground that it serves legitimate governmental interests totally unrelated to the suppression of free expression; and (4) the exigencies created by begging and panhandling in the subway warrant the conduct's complete prohibition, especially since it is prohibited only in the subway and not throughout all of New York City. Finally, the court rejected the district court's contention that the subway was a public forum in which panhandling must be permitted, based on the fact that there are parts of the subway system where charitable solicitation was permitted, finding that the government does not create a public forum by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.
Panhandling ordinance that prohibited solicitation of cash at night and near public transportation vehicle or facility, parked or stopped vehicle, sidewalk cafe or bank did not violate First Amendment; ordinance was narrowly tailored to promote city's legitimate interest in safety and convenience of its citizens on public streets, and ordinance allowed many feasible alternatives to reach both daytime and nighttime downtown crowds. U.S.C.A. Const Amend 1. Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000).
Statute prohibiting aggressive begging did not reach speech protected by First Amendment where, by express terms of statute and as those terms were limited by reviewing court, statute related only to intimidating conduct that would make reasonable person fearful of harm to his or her person or property. Nor was statute, as so limited, overbroad. However, section of statute listing circumstances to be considered in determining whether actor intended to intimidate another was struck down as being too vague. Roulette v City of Seattle (1994, WD Wash) 850 F Supp 1442.
Regulation proscribing begging on five-mile strip of beach and two attendant sidewalks in City of Fort Lauderdale, Florida was narrowly tailored to serve City's significant government interest in providing safe, pleasant environment and eliminating nuisance activity on beach, and thus did not violate free speech guarantees; City determined that begging in such area adversely impacted tourism, begging was allowed in other public fora throughout City, and proffered alternatives of proscribing only hostile or aggressive begging or confining begging to specific parts of beach did not demonstrate that regulation was substantially broader than necessary. U.S.C.A. Const Amend 1. Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954 (11th Cir. 1999).
In Blair v Shanahan (1991, ND Cal) 775 F Supp 1315, 91 CDOS 7867, 91 Daily Journal DAR 13970, amd (ND Cal) 91 Daily Journal DAR 13969, later proceeding (ND Cal) 92 Daily Journal 7671 (applying California law on this issue), discussed more fully in § 3[b], the court held that NY Penal Code § 647(c), which provided that anyone who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms is guilty of a misdemeanor, did not violate the free speech provision of NY Constitution Article 9, finding it was compelled to follow the holding of the court in Ulmer v Municipal Court for Oakland-Piedmont Judicial Dist. (1976, 1st Dist) 55 Cal App 3d 263, 127 Cal Rptr 445, this section, on this issue.
In Ulmer v Municipal Court for Oakland-Piedmont Judicial Dist. (1976, 1st Dist) 55 Cal App 3d 263, 127 Cal Rptr 445, the court held that NY Penal Code § 657(c), which prohibited accosting other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms, did not violate the free speech provisions of the state or federal [FN20] constitutions. The defendant contended that the trial court erred in determining that the statute was unconstitutional in that it was overbroad-- prohibiting constitutionally protected as well as unprotected activity. The court noted that it was evident from the comments of the principal draftsmen of the statute that its purpose was to protect members of the public from the annoyance of being approached in a public place by beggars. The court pointed out that the First Amendment protected the freedom of individuals to speak, write, print, or disseminate information or opinion, and that regulation of conduct bearing no necessary relationship to the freedom to speak, write, print or distribute information or opinion did not abridge the guaranties of the First Amendment. The court concluded that since begging and soliciting for alms did not not necessarily involve the communication of information or opinion, approaching individuals for that purpose was not protected by the First Amendment and the statute was not invalid on First Amendment grounds.
Cal Penal Code § 647(c), making it illegal to accost other persons in any public place for purpose of begging or soliciting alms, did not violate defendant's right to freedom of speech, was not constitutionally overbroad or vague, and did not violate defendant's right to equal protection. State has legitimate interest in protecting citizens from unwanted exposure to certain intrusive and unpleasant methods of expression that may properly be deemed public nuisance. Activity, such as begging, which bears no necessary relationship to freedom to speak, write, print, or distribute information or opinion does not abridge First Amendment guaranties. Meaning of statute is sufficiently clear to warn of proscribed conduct. Begging (sole object of which is transfer of money) is sufficiently distinct from charitable solicitation (secondary objective of which is to seek support for particular causes or for particular views on economic, political, or social issues) to defeat equal protection claim. People v Zimmerman (1993) 15 Cal App 4th Supp 7, 19 Cal Rptr 2d 486.
Section of Dist Col Panhandling Act (Dist Col Code 1981 § 22-3312(b)) prohibiting any person from asking, begging or soliciting alms at any subway station or stop was reasonable regulation of begging that did not violate First Amendment; section was designed to ensure public safety in nonpublic forum area. Further, "subway station or stop" as used in statute was not unconstitutionally vague. McFarlin v District of Columbia (1996, Dist Col App) 681 A2d 440.
Statute prohibiting begging in city subway system did not violate defendant's right to freedom of speech; while begging was protected speech, city transit system was nonpublic forum containing, at most, limited forum open only to some speech activities but expressly not extended to begging, and restriction was reasonable under circumstances presented. People v Schrader (1994, City Crim Ct) 162 Misc 2d 789, 617 NYS2d 429.
Where the police report indicated that the defendant, who was arrested and charged with pedestrian interference, had been stopping pedestrians and asking for spare change, the court in Seattle v Webster (1990) 115 Wash 2d 635, 802 P2d 1333, 7 ALR5th 1100, cert den (US) 114 L Ed 2d 85, 111 S Ct 1690, held that the pedestrian interference ordinance was not constitutionally overbroad as sweeping within its prohibitions constitutionally protected free speech activities. The ordinance made it unlawful to intentionally obstruct pedestrian or vehicular traffic [FN21] and defined "obstruct pedestrian or vehicular traffic" to mean to walk, stand, sit, lie, or place an object in such a manner as to block passage by another person or a vehicle, or to require another person or a driver of a vehicle to take evasive action to avoid physical contact. It also provided that acts authorized as an exercise of one's constitutional right to picket or to legally protest shall not constitute obstruction of pedestrian or vehicular traffic. The court noted that a law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities and that criminal statutes require particular scrutiny and may be facially invalid if they make unlawful a substantial amount of constitutionally protected conduct even if they also have legitimate application. The court continued that a statute which regulates behavior, and not pure speech, will not be overturned unless the overbreadth is both real and substantial in relation to the ordinance's plainly legitimate sweep, but that the court would not uphold the constitutionality if it was unable to place a sufficiently limited construction upon the standardless sweep of the legislation. The defendant argued that the ordinance had a potentially enormous scope, since it was not uncommon to innocently walk, stand, sit, or lie, or place an object in such a manner as to block passage of another. However, the court pointed out that the ordinance was written to apply only to persons intentionally blocking passage by another person or a vehicle and requiring another person or a driver to take evasive action to avoid physical contact by walking, standing, sitting, lying, or placing an object. The court found that the ordinance did not prohibit innocent intentional acts which merely consequentially block traffic or cause others to take evasive action, and agreed with the city's argument that the inclusion in the ordinance of the element of specific intent saved it from being unconstitutionally overbroad.

[b] Held invalid

In the following cases, where laws regulating begging, panhandling, or similar activity by poor or homeless persons were challenged as violating freedom of speech, the courts held that the law at issue was invalid, finding that begging constituted speech.
See Loper v New York City Police Dept. (1991, SD NY) 766 F Supp 1280, later proceeding (SD NY) 1991 US Dist LEXIS 9547, summary judgment den on other grounds (SD NY) 785 F Supp 464, where the court recognized the possibility that begging may be constitutionally protected either as expressive conduct or commercial speech, but held that the existence of unresolved factual issues concerning the historical treatment of begging, the rationale behind and the enforcement of the law, and the nature of the city's police power and fraud prevention interests precluded the granting or denial of summary judgment on the First Amendment claims. Two beggars brought a class action suit under 42 U.S.C.A. § 1983 seeking a declaration that NY Penal Law § 240.35(1), which provided that a person is guilty of loitering when he loiters, remains or wanders about in a public place for the purpose of begging, violated the U.S.C.A. Const Amend 1 and 14 as well as the NY Constitution. The city sought summary judgment on the ground that, as a matter of law, begging is not protected by the First amendment, citing Young v New York City Transit Authority (1990, CA2 NY) 903 F2d 146, cert den (US) 112 L Ed 2d 528, 111 S Ct 516, § 3[a], as authority for this proposition. However, the court found that while the opinion in Young in effect held that the regulations at issue were permissible even if begging was expressive conduct, the court did not resolve the issue of the status of begging in order to decide the question before it.
Statute providing that person is guilty of loitering when he loiters, remains, or wanders about in public place with purpose of begging, NY Penal Law § 240.35(1) violated First Amendment right of free speech; statute imposed blanket ban on conduct with expressive component that had right to protection; although state has valid interest in preventing fraud, preserving public order, and protecting members of audiences and bystanders, interest in permitting free speech and message that begging sends about our society predominates. Loper v New York City Police Dept. (1992, SD NY) 802 F Supp 1029.
City ordinance banning sales and solicitation of donations along boardwalk was not narrowly tailored to serve governmental interests of protecting local merchants and aiding free traffic flow, in violation of First Amendment free speech protections, where ordinance contained exception for nonprofit organizations; there was no evidence that organizations without nonprofit status were any more cumbersome upon fair competition or free traffic flow than those with nonprofit status. U.S.C.A. Const. Amend. 1; Los Angeles, Cal., Municipal Code § 42.15. Perry v. Los Angeles Police Dept., 121 F.3d 1365, 25 Media L. Rep. (BNA) 2206 (9th Cir. 1997), cert. denied, 118 S. Ct. 1362 (U.S. 1998).
In Blair v Shanahan (1991, ND Cal) 775 F Supp 1315, 91 CDOS 7867, 91 Daily Journal DAR 13970, amd (ND Cal) 91 Daily Journal DAR 13969, later proceeding (ND Cal) 92 Daily Journal DAR 7671, the court held that NY Penal Code § 647(c), which provided that anyone who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms is guilty of a misdemeanor, violated the free speech guaranty of the U.S.C.A. Const Amend 1. [FN22] Declining to follow the decision in Young v New York City Transit Authority (1990, CA2 NY) 903 F2d 146, cert den (US) 112 L Ed 2d 528, 111 S Ct 516, § 3[a], which held that begging constituted conduct rather than speech and was outside the protection of the First Amendment, the court found no distinction of constitutional dimension between soliciting funds for oneself and for charities. The court found that begging can promote the very speech values that entitle charitable appeals to constitutional protection, and that a request for alms clearly conveys information regarding the speaker's plight and gives the speaker an opportunity to spread his views on, among other things, the way our society treats its poor and disenfranchised. The court continued that the fact that the beggar may keep the money he receives does not strip a beggar's protected speech of its claim to First Amendment protection, nor does the fact that he represents himself and not an organized charity. The court also disagreed with the Young court's distinction that beggars do not convey clearly articulated information to the target listener, pointing out that most who solicit for charity do so to raise money rather than to change the way the listener thinks about the world. Finding the statute aimed specifically at protected speech in a public forum, the court noted that to pass constitutional muster, the state must demonstrate that this content-based infringement on free expression in a public forum is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The court pointed out that the court in Ulmer v Municipal Court for Oakland-Piedmont Judicial Dist. (1976, 1st Dist) 55 Cal App 3d 263, 127 Cal Rptr 445, § 3[a], explained that the state interest promoted by the statute was to avoid annoyance to the public, and the defendants asserted that it protects the public from intrusive conduct which is threatening and coercive to those who are accosted and from intrusive, coercive behavior. The court found, however, that even if avoiding such activity could be considered a compelling state interest, the statute was neither necessary, nor narrowly drawn, to serve that interest. The court noted that there were other statutes which served to protect the public from threatening conduct without prohibiting a form of political speech, and it was not narrowly drawn to serve the purpose because it did not require that an "accost" be either threatening, intimidating, or coercive to violate the statute.
In C.C.B. v State (1984, Fla App D1) 458 So 2d 47, 9 FLW 2217, the court held that a city ordinance that prohibited all forms of begging or soliciting for alms was unconstitutional in that it curbed the First Amendment right of freedom of speech in a more intrusive manner than necessary. The defendant appealed his conviction for violation of an ordinance which provided that it shall be unlawful for anyone to beg or solicit alms in the streets or public places of the city or exhibit oneself for the purpose of begging or obtaining alms. The court found that the ordinance was unconstitutionally overbroad by its abridgement in a more intrusive manner than necessary, of the First Amendment right of individuals to beg or solicit alms for themselves. The court noted that the city's alleged legitimate and compelling interest was its duty and responsibility under its police power to control undue annoyance on the streets and public places and prevent the blocking of vehicle and pedestrian traffic, but that goal must be measured and balanced against the rights of those who seek welfare and sustenance for themselves, by their own hand and voice rather than by means of the muscle and mouths of others. The court continued that this right to self help must be subject to the state's interest but conditioned upon less intrusive means than absolute preclusion. The court concluded that a total prohibition of begging or soliciting alms for oneself was an unconstitutional abridgement of the right to free speech as guaranteed by the First and Fourteenth Amendments and that protecting citizens from mere annoyance was not a sufficient compelling reason to absolutely deprive one of a First Amendment right. Finally, the court pointed out that the city could regulate that right subject to strict guidelines and definite standards closely related to permissible municipal interests, such as could be imposed by a narrowly drawn permit system. [FN23]
City code ordinance prohibiting begging for money upon public way was unconstitutional as overbroad and vague since ordinance restricted speech on public ways, which were traditional public forum, and strict scrutiny test infringed on free speech rights in manner more intrusive than necessary; ordinance did not distinguish between aggressive and passive begging, and it was vague by not defining terms "beg" or "begging," and therefore could be subject to arbitrary enforcement. Ledford v. State, 652 So. 2d 1254 (Fla. Dist. Ct. App. 2d Dist. 1995).

Hope that sheds some light.

10:30 PM  
Anonymous Anonymous said...

Who knows where to download XRumer 5.0 Palladium?
Help, please. All recommend this program to effectively advertise on the Internet, this is the best program!

7:59 AM  

Post a Comment

<< Home

 

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)