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A Dream Denied:
The Criminalization of Homelessness in U.S. Cities


II.  Challenges to Anti-Begging, Anti-Soliciting and Anti-Peddling Laws

A. Federal Court Cases

American Civil Liberties Union of Nevada v. City of Las Vegas, 333 F.3d 1092 (9th Cir. 2003).
Plaintiffs, including the Civil Liberties Union of Nevada, sued, among other defendants, the City of Nevada and Fremont Street Experience Limited Liability Corporation (“FSELLC”), challenging prohibitions on distributing written material and soliciting funds and restrictions on educational and protest activities at an open mall area.  Plaintiffs sought a preliminary injunction against the enforcement of several Las Vegas Municipal Code sections and rules and policies of the FSELLC.  The district court granted the preliminary injunction, barring enforcement of a section of the Las Vegas Municipal Code prohibiting leafleting and a “standardless licensing scheme,” but did not grant a preliminary injunction regarding enforcement of a second section regarding solicitation.   The district court granted defendants’ motion for summary judgment regarding plaintiff’s challenge to the anti-solicitation ordinance.  The court found that the ban on solicitation did not violate the First Amendment because (i) the mall in question was a non-public forum, (ii) the ban on solicitation was viewpoint neutral, and (iii) the ban was reasonable considering the commercial purposes of the mall.

Plaintiffs appealed to the Ninth Circuit.  In its “forum analysis,” the Ninth Circuit emphasized three factors: “the actual use and purposes of the property . . . the area’s physical characteristics, including its location and the existence of clear boundaries delimiting the area . . . and traditional or historic use of both the property in question and other similar properties.”  Because the area at issue was used as a public thoroughfare, was open to the public and integrated into the city’s downtown, and, like other “public pedestrian malls and commercial zones,” was historically used as a public forum, the court held that the mall was a traditional public forum for purposes of the First Amendment.   The court remanded the case regarding the anti-solicitation ordinance to the lower court, where, because the area is a public forum, the city must “show that the limitation is narrowly tailored to serve a significant government interest without ‘burden[ing] substantially more speech than is necessary to further the government’s legitimate interests.”

The city petitioned for a writ of certiorari to the Supreme Court, arguing that the Ninth Circuit decision (i) diverges from the public forum jurisprudence of the Supreme Court and the Seventh and Eleventh Circuits, which would allow the city to treat the property as a non-public forum by changing the property’s primary use; (ii) conflicts with the Second Circuit, which emphasizes the primary function and purpose of a property; (iii) unduly constricts the government’s ability to make optimal use of publicly owned property for commercial and entertainment purposes; and (iv) expands the public forum doctrine to the point of incentivizing cities to privatize public space.

Opposing the city’s petition for writ of certiorari, the ACLU argued that the Ninth Circuit applied traditional forum analysis to the facts of the case, the city and businesses have always faced the Court’s established view that streets and sidewalks are natural public fora, and the Ninth Circuit decision does not involve analysis with respect to when a city can close a public forum because Fremont Street remains open to public pedestrian traffic.  The Supreme Court denied the petition for writ of certiorari.

Atchison v. City of Atlanta, No 1:96-CV-1430 (N.D. Ga. July 17, 1996).
Seven homeless individuals filed suit in federal court one month prior to the opening of the Olympic Games in Atlanta challenging Atlanta’s ordinances prohibiting aggressive panhandling and loitering on parking lots, its enforcement of Georgia’s criminal trespass law, and unlawful police harassment under 42 U.S.C. § 1983.  The U.S. District Court for the Northern District of Georgia granted a temporary restraining order barring enforcement of one provision of the parking lot ordinance, finding that the plaintiffs were likely to succeed on the merits of their claim that the provision was unconstitutionally vague.   In its ruling on plaintiffs’ motion for a preliminary injunction, the court held that the provision of the anti-aggressive panhandling ordinance that prohibited “continuing to request, beg or solicit alms in close proximity to the individual addressed after the person to whom the request is directed has made a negative response” was unconstitutionally vague, and granted a preliminary injunction prohibiting enforcement of that specific provision.  The court found that with the above exception, the ordinance “appears narrowly tailored to address the significant interests while affording panhandlers ample channels with which to communicate their message.”   The court also rejected the plaintiffs’ equal protection claim, holding that they failed to show a city policy of violating their rights or failing to train police officers.

Before the appeal was heard, the case was settled.  As part of the settlement, the city agreed to redraft the panhandling and parking lot ordinances and require various forms of training for its law enforcement officers for the purpose of sensitizing them to the unique struggle and circumstances of homeless persons and to ensure that their legal rights be fully respected.

Blair v. Shanahan, 919 F. Supp. 1361 (N.D. Cal. 1996).
In 1991, plaintiff challenged a California state statute that prohibited “accost[ing] other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms.”   The U.S. District Court for the Northern District of California held the California state anti-begging statute to be unconstitutional on its face, concluding that the statute violated the First Amendment because it was content-based, was aimed specifically at protected speech in a public forum, and was not narrowly tailored to meet a compelling state interest.  The court also held that the statute violated the plaintiff’s right to equal protection under the Fourteenth Amendment since it distinguished between lawful and unlawful conduct based on the content of the communication at issue.

The city settled its case with the plaintiff for damages, but then, joined by the State, moved to have the declaratory judgment modified or vacated.  The district court rejected this motion.   On appeal, finding that the city had mooted its own appeal by settling the case, the Ninth Circuit refused to order the district court to vacate the declaratory judgment but remanded the case to the district court for a decision on whether to do so.   The district court then vacated its declaratory judgment on the ground that in light of the specific circumstances of the case, it would be inequitable to the state to permit the order invalidating a state statute to stand without the possibility of intervention by the state and appellate review of the constitutional issue involved.

Chad v. City of Ft. Lauderdale, 66 F. Supp. 2d 1242 (S.D. Fla. 1998).
Plaintiffs challenged enforcement of Ft. Lauderdale’s ordinance prohibiting soliciting, begging, or panhandling on the city’s beach and adjacent sidewalk.  The district court denied plaintiffs’ motion for a preliminary injunction, and both parties filed motions for summary judgment.  The district court granted the City’s motion and denied plaintiffs’ motion.  Plaintiffs argued the ordinance violated the Fourteenth Amendment to the U.S. Constitution because it unconstitutionally limited free speech by prohibiting speech “asking for” something.  Plaintiffs argued this prohibition was vague and therefore unconstitutional.  The court rejected this argument, noting that the “asking for” behavior the statue covers is sufficiently clear as to what is being prohibited.  Plaintiffs also argued the ordinance was overbroad because begging, panhandling, and solicitation are forms of protected expression.  The court also rejected this contention holding that although the ordinance was broad enough to include protected speech, it satisfied the reasonable time, place, and manner restrictions on such speech, the ordinance was content neutral, and was narrowly tailored to promote the significant governmental interest of promoting a safe, healthful, and aesthetic environment.

Community for Creative Non-Violence v. Turner, 893 F.2d 1387 (D.C. Cir. 1990).
Community for Creative Non-Violence (CCNV) members challenged the constitutionality of Washington Metropolitan Area Transit Authority (WMATA) regulations requiring individuals to obtain permits to engage in free speech activities on WMATA property, permitting suspension of permits in emergencies, requiring that the speech be in a “conversational tone,” and restricting the number of individuals who may engage in free speech at each station.   The U.S. Court of Appeals for the D.C. Circuit affirmed the trial court ruling that struck down all of the provisions, finding that the above-ground free areas of the stations were public fora.  The D.C. Circuit found that the permit requirement was an impermissible prior restraint, the suspension provision was not severable from the permit provision, the “conversational tone” provision was unconstitutionally vague, and the limit on the number of individuals burdened more speech than was necessary.

Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710 (6th Cir. 1995).
Plaintiffs, which included the Greater Cincinnati Coalition for the Homeless (the “Coalition”) and a homeless man, originally filed a complaint against the City of Cincinnati in District Court seeking injunctive, declaratory, and monetary relief for damages allegedly suffered as a result of a municipal ordinance which prohibited people from “recklessly interfere[ing] with pedestrian or vehicular traffic in a public place.”   Activities that were considered reckless interference included walking, sitting, lying down, and/or touching another person in a public place so as to interfere with the passage of any person or vehicle, or asking for money or anything else of value in a way that would “alarm” or “coerce” a reasonable person.   The District Court found that the plaintiffs lacked standing to challenge the ordinance and the plaintiffs appealed.  The Court of Appeals for the Sixth Circuit found that neither the Coalition nor the homeless man had demonstrated a “direct injury-in-fact” or a threatened injury that could potentially result from enforcement of the ordinance, and that therefore plaintiffs did not have standing to challenge the ordinance.   The Court of Appeals, however, did indicate that other potential challenges that demonstrated that the ordinance violated plaintiff’s protected First Amendment rights under the U.S. Constitution might be successful.

 

Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000).
Jimmy Gresham, a homeless person, challenged an Indianapolis, Indiana ordinance that prohibited panhandling in public places from sunset to sunrise and also prohibited “aggressive panhandling.” Gresham claimed the city ordinance violated his First Amendment right to free speech and his Fourteenth Amendment right to due process.  The city argued the ordinance was a response to the public safety threat that panhandlers cause.  The District Court granted the city’s motion for summary judgment and Gresham appealed to the Seventh Circuit.  The Circuit Court affirmed the District Court’s opinion.  The Court held Mr. Gresham’s First Amendment right was not violated simply because it forbade him to panhandle at night.  It found Mr. Gresham had many other feasible alternatives available to him during the day and during the night to reach Indianapolis crowds.   Furthermore, the Court affirmed the district court’s opinion that a state court could not find the statute unconstitutionally vague.

Henry v. Cincinnati, 2005 WL 1198814 (S. D. Ohio 2005).
Four homeless individuals and the CEO of the Homeless Hotline of Greater Cincinnati brought suit to challenge the constitutionality of a city ordinance that prohibits engagement in vocal solicitation without a valid registration.  The city moved to dismiss on standing grounds.  Because the plaintiffs asserted that they fear arrest due to their solicitation activities without registration, the court held that plaintiffs had alleged sufficient facts to overcome the motion to dismiss.  Furthermore, because plaintiffs claimed that the registration scheme lacks the necessary procedural safeguards, they have standing to challenge the ordinance’s allegedly overbroad registration requirements.  Plaintiffs also alleged that the time, place, and manner restrictions are unconstitutionally vague and that the city ordinance is not narrowly tailored to serve a compelling government interest, but serves as a prior restraint on speech.
 
The court rejected the city’s argument that the ordinance regulates only panhandling and that panhandling is merely commercial speech.  However, the court held that the ordinance was content-neutral under the Hill v. Colorado standard.  The court characterized the regulation as a time, place, and manner restriction and noted that the ordinance is not concerned with the message a solicitor communicates by requesting money.  Lastly, the court found that the ordinance was justified by reference to the act of solicitation, not the content of the speech.  Regarding constitutional review under intermediate scrutiny, the court held that the parties should be afforded an opportunity to present evidence.  In addition, the court did not dismiss the registration requirement claim because it was not convinced by the city’s argument that registration for solicitors is required to prevent fraud. 

Jones v. City of Denver, No. 96-WY-1751 (D. Colo. 1996).
Four homeless individuals, along with two non-homeless individuals with an interest in the information communicated by those who beg, brought an action against the City and County of Denver, Denver Chief of Police, and two police officers challenging the constitutionality Colorado’s state law making it a crime to “loiter… for the purpose of begging.”   The parties reached a settlement agreement in which defendants stipulated that the law violates the Due Process Clause, and have agreed to a declaratory judgment and injunction prohibiting enforcement of the law in the City of Denver.  The court approved the proposed settlement agreement and the state legislature subsequently repealed the suspect language.

Heathcott v. Las Vegas Metropolitan Police Officers, No. CV-S-93-045 (D. Nev. Mar. 3, 1994).
A homeless man challenged a Nevada state statute that prohibited loitering with the intent to beg.  The district court found that the law effectively prohibited all begging, which is constitutionally protected speech, and that since the statute was not narrowly tailored to meet any compelling government interest it was constitutionally overbroad.  The court also noted that there was no serious harm posed to the public by peaceful begging and that conduct that may require regulation, including fraud, intimidation, coercion, harassment, and assault, are all covered by separate statutes.

Loper v. New York City Police Department, 999 F.2d 699 (2nd Cir. 1993).
Plaintiffs challenged the New York City Police Department’s enforcement of a New York statute prohibiting “’loiter[ing], remain[ing], or wander[ing] about in a public place for the purpose of begging.’”  The Second Circuit affirmed the district court’s order granting summary judgment to plaintiffs and invalidating the statute on First Amendment grounds.  The Court of Appeals held that begging constitutes expressive conduct or communicative activity for the purposes of First Amendment analysis, and that there was no compelling government interest served by prohibiting those who beg peacefully from communicating with their fellow citizens.  The court further held that even if the state had such an interest, a statute banning all begging was not narrowly tailored, not content-neutral, and left open no alternative channels of communication “by which beggars can convey their messages of indigency.”

Los Angeles Alliance for Survival v. City of Los Angeles, 224 F.3d 1076 (9th Cir. 2000).
This suit challenged the city’s ordinance banning aggressive solicitation.  The ACLU and co-counsel argued that the ordinance was overbroad and violated the First Amendment to the United States Constitution and the Liberty of Speech Clause of the California Constitution.  The federal district court issued a preliminary injunction in October 1997.  The city appealed, and requested certification of three questions to the California Supreme Court.  On September 15, 1998, the Ninth Circuit issued an order requesting the California Supreme Court to certify the question of whether an ordinance regulating the time, place, and manner of solicitation of money or other thing of value, or the sale of goods or service, is content-based, for purposes of the liberty of speech clause of the California Constitution.

The California Supreme Court accepted certification and issued an opinion concluding that regulations like the ordinance should be deemed content neutral for purposes of the California Constitution.  The Ninth Circuit affirmed the District Court’s decision that granted a preliminary injunction barring enforcement of Los Angeles Ordinance No. 171664.  The Court ruled that even though, as the California Supreme Court certified, regulation of solicitation is content-neutral, Los Angeles’ particular statute infringed upon the right to free speech under the U.S. Constitution, and when a statute regulating solicitation does that, it raises serious questions of hardship. The court found the “balance of hardships” tipped in favor of the appellees who would be irreparably injured without the preliminary injunction.  The case ultimately settled, resulting in the removal of ordinance language that had permitted persons to order panhandlers off property surrounding restaurants, bus stops and other places.  The prohibition on solicitation within 10 feet of an ATM remains in the ordinance.  

NLCHP filed an amicus brief in support of plaintiffs-appellees.

Northeast Ohio Coalition for the Homeless v. City of Cleveland, 105 F. 3d 1107 (6th Cir. 1997).
The Northeast Ohio Coalition for the Homeless, which publishes a homeless street newspaper, The Homeless Grapevine, and a Mosque whose members sell the Nation of Islam newspaper The Final Call, challenged a Cleveland city ordinance requiring distributors to apply and pay $50 for a peddlers license in order to distribute their papers in public places.  The plaintiffs filed suit in U.S. District Court in 1994 alleging that imposition of a license requirement violated their rights to freedom of speech and press.  On February 3, 1997, the U.S. Court of Appeals for the Sixth Circuit reversed the district court’s decision and held that the licensing requirement and fee constituted permissible time, place, and manner restriction and were sufficiently narrowly tailored to further a legitimate government interest in preventing fraudulent solicitations.

Earlier, the district court had granted plaintiff’s motion for summary judgment, holding that the licensing requirement violated their rights under the U.S. and Ohio Constitutions.   Noting that pursuant to the Supreme Court’s decision in Murdock v. Pennsylvania, 319 U.S. 105 (1943), nominal fees are allowable to cover the costs associated with permissible regulation of speech,  the district court stated that the city failed to claim that the fee was designed for such a purpose.  Additionally, the district court stated that the license prevented some “speakers” from distributing their message since the fee was not tied to the peddler’s ability to pay.
The Sixth Circuit subsequently denied plaintiffs’ petition for a rehearing en banc,   and the Supreme Court denied plaintiff’s petition for a writ of certiorari.

Smith v. City of Ft. Lauderdale, 177 F.3d 954 (11th Cir. 1999).
James Dale Smith, a homeless person, challenged a Ft. Lauderdale city regulation Rule 7.5(c) that proscribes begging on a certain five-mile strip of beach and two adjacent sidewalks on behalf of himself and a class of homeless persons.  Plaintiff initially brought suit in the U.S. District Court for the Southern District of Florida; that court granted summary judgment in favor of the defendant city.  The Court of Appeals affirmed the District Court’s decision.  The Court ruled that, although begging is a form of speech and beaches and sidewalks are public forums, the city made a determination that begging negatively affected tourism.  Furthermore, since tourism is a major contributor to the city’s economy and begging can occur in other parts of the city, the court found the anti-begging ordinance “narrowly tailored to serve the City’s interest in providing a safe, pleasant environment and eliminating nuisance activity on the beach.”

Sunn v. City and County of Honolulu, 852 F. Supp. 903 (D. Haw. 1994).
Plaintiff, a street musician, was arrested nine times during 1991 and 1992 for peddling.  The state court later found that the peddling ordinance did not cover Sunn’s activity, and Sunn subsequently brought suit against the City and County of Honolulu and certain police officers for violation of Sunn’s rights under 42 U.S.C. § 1983 and for common law false arrest.  On March 4, 1994, the court granted summary judgment regarding the §1983 claim in favor of the individual officers because they had demonstrated the requirements for qualified immunity–a “reasonable officer” could have “reasonably” believed that his or her conduct was lawful in light of clearly established law and the information that the officer had at the time.  The City and County of Honolulu (the “City”) subsequently moved for summary judgment based on the § 1983 claims arguing that if the officers had been found to be immune from liability under the statute, vicarious liability could not attach to the city for the officer’s actions.  The District Court found that granting summary judgment in favor of the officers based on qualified immunity did not mean that the plaintiff did not possibly suffer a violation of his constitutional rights.  The city argued that the test used to conclude that the officers had qualified immunity was the same as the test to determine if there had been probable cause for Sunn’s arrests.  The court indicated that the test to determine whether the officers had qualified immunity was not the same as the test for probable cause and that there were still pending issues of fact concerning probable cause.  Therefore, the court concluded that the officers could potentially be found to have arrested Sunn without probable cause and the city could potentially be held liable for such a Constitutional violation.  Accordingly, the city’s motion for summary judgment of the § 1983 claims was denied.

Subsequently, following a bench trial the court permanently enjoined the defendants from arresting Sunn for his musical performances and awarded him $45,220 in general and special damages.

Thompson v. City of Chicago, 2002 WL 31115578 (N.D. Ill. 2002).
Homeless plaintiffs, on behalf of themselves and a proposed class, filed a § 1983 and First and Fourth Amendment claim against the city of Chicago for its enforcement of an ordinance prohibiting begging or soliciting money on public ways.  The plaintiffs alleged that police officers had repeatedly ticketed and arrested them pursuant to the ordinance.  The city moved to dismiss for failure to state a claim, and the court denied the motion.  The court held that, although the plaintiffs’ § 1983 claims were not exceedingly clear, they nevertheless met the bare pleading requirements necessary to state a claim for municipal liability under Monell v. Dept. of Social Services of City of New York, 436 U.S. 658 (1978).  It next ruled that the plaintiffs had sufficiently stated a claim for municipal interference with their First Amendment interest in panhandling.  Finally, the court found that the plaintiffs had stated a claim under the Fourth Amendment because police officials should have been aware that an ordinance similar to the Chicago ordinance had previously been held to violate the Constitution, and thus the police could not have had a good faith belief in the constitutionality of the ordinance. 

The case settled with the city paying $99,000 in damages and an additional $375,000 in attorneys fees and other administrative costs.  The city also repealed the panhandling ordinance as a result of the suit.

Young v. New York City Transit Authority, 903 F.2d 146 (2d Cir. 1990).
Plaintiffs challenged New York City Transit Authority regulations that prohibited begging on subway cars and platforms.  The Second Circuit reversed the holding of the district court and vacated the lower court’s order enjoining enforcement of the regulations holding that begging, which is “much more ‘conduct’ than ‘speech,’” is not protected by the First Amendment.   The court held that even if the First Amendment did apply, the regulation was reasonable because it was content-neutral, justified by a legitimate government interest, and allowed alternative channels of communication in that it did not ban begging in locations other than the subway.

B. State Court Cases

ACLU of New Mexico v. City of Albuquerque, No. 2004 00355 (N.M. Dist. Ct. Bernalillo County 2004).
Plaintiff ACLU Chapter and an individual panhandler requested a declaratory judgment and an injunction against the enforcement of a pending anti-panhandling ordinance, alleging that it violated both free speech and due process rights under the New Mexico Constitution.  The state district court judge granted a temporary restraining order in January 2004 barring the implementation of the ordinance.  The ACLU settled with the city for a watered-down version of the ordinance, which went into force in January 2005.  Under the new ordinance, Section 12-2-28, a police officer must give a warning before a citation is issued.  If the person is caught violating the ordinance a second time in a 6-month period, then a citation can be written.  The city also agreed to limit panhandling at night only in downtown or Nob Hill, that “flying a sign” is legal anytime and anywhere, and to rewrite or delete some of the more oppressive restrictions that infringed on people’s First Amendment rights.  The ordinance still, however, contains a number of restrictions on panhandling. 

As of August 2005, local advocates do not believe that anyone has been cited under the new ordinance, although police are still citing people under the old one.  Local advocates are determining how to respond.

Benefit v. Cambridge, 424 Mass. 918 (1997).
On May 14, 1997 the Massachusetts Supreme Judicial Court invalidated a state statute that prohibited “wandering abroad and begging,” or “go[ing] about…in public or private ways…for the purpose of begging or to receive alms.”   The court found the prohibition to be a violation of plaintiff’s right to freedom of speech.

This constitutional challenge was initiated in 1992 by the American Civil Liberties Union of Massachusetts on behalf of plaintiff Craig Benefit, a homeless man who had been arrested three times on Cambridge, MA for begging in violation of the statute.  In 1996, the Superior Court of Middlesex County ruled that the law was an unconstitutional restriction on speech in violation of the plaintiff’s rights to freedom of speech and equal protection of the laws under the First and Fourteenth Amendments.

On appeal, in a strongly worded unanimous opinion the state’s highest court held (1) that peaceful begging involves communicative activity protected by the First Amendment, (2) that the criminal sanction imposed was an improper viewpoint-based restriction on speech in a public forum, based on the content of the message conveyed, and (3) that the statute was not constitutionally viable when subjected to strict scrutiny.  The court also emphasized that the prohibition on begging not only infringes upon the right of free communication, it also suppresses “an even broader right – the right to engage fellow human beings with the hope of receiving aid and compassion.”   The court soundly rejected the state’s argument that the statute supports a compelling government interest in preventing crime and maintaining safe streets.  NLCHP filed an amicus brief in support of the plaintiff—appellee.

C.C.B. v. Florida, 458 So.2d 47 (Fla. Dist. Ct. App. 1984).
The defendant was arrested and charged with violating a Jacksonville ordinance prohibiting all begging or solicitation of alms in public places.  On appeal, the court struck the ordinance as facially unconstitutional under the First Amendment.  The court found the ordinance represented an attempt to deprive individuals of a first amendment right, and it lacked a compelling justification, in that protecting citizens from mere annoyance was not a compelling reason for the ordinance. 

City of Cleveland v. Ezell, 121 Ohio App.3d 570, 700 N.E.2d 621 (1997).
Defendants in this case, who had been soliciting sales of newspapers to motorists stopped at red lights, were charged with violating a city ordinance which prohibited individuals from “standing on the street or highway and transferring any items to motorists or passengers in any vehicle or repeatedly stopping, beckoning to, or attempting to stop vehicular traffic through bodily gestures.”   Defendants appealed their lower court conviction, and argued that the ordinance was unconstitutional because it was overbroad and void for vagueness.  On appeal, defendants argued that the ordinance at issue was impermissibly vague because it did not delineate specifically enough what type of conduct was prohibited.  The Court of Appeals did not accept either argument and upheld the ordinance and defendants’ convictions.

Ledford v. State, 652 So.2d 1254 (Fla. Dist. Ct. App. 1995).
The defendant was arrested and charged with violating a St. Petersburg ordinance prohibiting begging for money upon any public way.  On appeal, the court found that the ordinance could not survive strict scrutiny under a First Amendment analysis.  The court held that begging was an expressive activity entitled to some First Amendment protection.  The ordinance failed to distinguish between “aggressive” and “passive” begging.  The City lacked a compelling reason for proscribing all begging in a traditional public forum, because protecting citizens from mere annoyance was not a compelling reason to deprive a citizen of a First Amendment right.  The court also found the ordinance void for vagueness for its failure to define the terms “beg” or “begging.”

 

McFarlin v. District of Columbia, 681 A.2d 440 (D.C. 1996)
Two consolidated cases involved charges under the District of Columbia Panhandling Act.   Defendant Williams was arrested and charged with aggressive panhandling.  Police discovered him panhandling and allegedly impeding the flow of pedestrian traffic at the top of a subway escalator.  Defendants McFarlin and Taylor were arrested for panhandling at the top of a subway escalator.  At the time, the two men had been giving a musical performance and had placed a bucket nearby where passersby could drop money.  The court upheld Williams’ conviction against his constitutional challenge while dismissing the charges against McFarlin and Taylor for insufficient evidence. 
As to Williams, the court denied his First Amendment claim because the Act did not prohibit panhandling generally; instead, as interpreted by a transit authority regulation, the Act was limited to areas within fifteen feet of subway entrances.  As such, the Act did not reach public fora, and was subject only to a reasonableness review.  Since the Act did not target a specific viewpoint and served the significant government interest in promoting safety and convenience at a subway station, it did not violate the First Amendment.  The court also denied Williams’ vagueness claim, finding that the transit authority’s construction of the Act as applying within fifteen feet of a subway station was a sufficiently definite description of the proscribed conduct. 

As to McFarlin and Taylor, the court found that the Act was properly applied to them, since it reached broadly all attempts to solicit donations.  However, due to the inexact testimony of the arresting officer, the court found the evidence insufficient to sustain the conviction.

People v. Schrader, 162 Misc. 2d 789, 617 N.Y.S. 2d 429 (Crim. Ct. 1994).
Defendant was charged with unlawfully soliciting in a subway station in violation of a New York City Transit Authority rule.  Defendant argued that the charge should be dismissed because the rule violated his right to free speech, which is protected by the New York State Constitution, and because the rule was broader than necessary to achieve a legitimate state objective.  The court held that although begging in general was a form of protected speech under both the New York State and U.S. Constitutions, the subway system was not a public forum, and that a ban on begging in the subway system was a reasonable limitation on speech in the particular forum as a safety precaution.  The court also found that the rule was not a viewpoint-based restriction on speech.

State of Florida v. O’Daniels, 2005 WL 2373437 (Fla. App. 3 Dist.).
Defendant O’Daniels was arrested and charged with violating a city ordinance requiring street performers and art vendors to have a permit.  O’Daniels moved to dismiss the charge, claiming that the ordinance violated the First and Fourteenth Amendments of the U.S. Constitution and a provision of the Florida Constitution.  The county court found the ordinance unconstitutional because it unnecessarily infringed on various constitutional rights.   First, the permit-issuing scheme lacked adequate procedural safeguards to avoid unconstitutional censorship.  Second, the ordinance was not content-neutral, was not narrowly tailored to serve a significant government interest, and did not leave open ample alternative channels of communications.  Third, the ordinance was void for vagueness because it failed to give fair notice of the conduct it prohibited and lacked guidelines for police to avoid arbitrary application.  Fourth, the ordinance was facially invalid because it was overbroad.  Finally, the ordinance violated substantive due process.

The city appealed, arguing that the ordinance was content neutral and was a reasonable time, place, and manner regulation.  The city contended that the ordinance did not violate the First Amendment and was not overbroad in that it only restricted street performers and art vendors in certain areas.  Furthermore, the city argued that it provided alternative channels of communication.

On appeal, the ACLU of Florida filed a brief amicus curiae supporting O’Daniels.  The ACLU’s argument focused on the First Amendment right to artistic expression.  The ACLU contended that the ordinance has a chilling effect because of its permit requirements, criminal penalties, and provisions regarding indemnification.  Moreover, the ordinance unconstitutionally delegates to the private sector the power of review. 

The appellate court affirmed the lower court’s ruling.  First, the court acknowledged that street performances and art vending are protected forms of expression under the First Amendment.  Next, the court held that the ordinance was content neutral, noting that the city’s principal justification for the ordinance was its “desire to preserve the ‘reasonable expectations of residents to the enjoyment of peace and quiet in their homes, the ability to conduct their businesses and serve their patrons uninterrupted, and the public’s use of the City’s rights-of-way.’”  Therefore, the court applied the time, place, and manner test.  Because the ordinance bans street performances and art vending throughout the city except for 11 specified locations, the court held that it is “substantially broader than necessary to address the City’s stated traffic concerns.”  Lastly, while the city argued that the ordinance only prohibits performing and vending that takes place in a fixed location, the court held that “[i]t is up to the street performer to decide whether to stand in a fixed position rather than to perform on the move” and the alternative means of communication must not only exist but also be “ample.”  Accordingly, the court affirmed the holding that the ordinance violated the Constitutions of the United States and Florida.

State of Minnesota v. McDonald, No. 03085478 (Minn. Dist. Ct. 2004).
A homeless man charged with violating a Minneapolis ordinance that prohibited begging in public or private areas challenged the ordinance.  The defendant was holding a begging sign and had approached vehicles when the police ticketed him.  He had been cited under the same ordinance several times before.  The City of Minneapolis argued that the governmental interest behind the statute is to address the dangers of begging because the manner in which beggars ask for money can be intimidating, dangerous, can involve unwanted touching, and frighten people who are approached. 

The court found that begging is free speech protected by the First Amendment and that the ordinance offers no alternatives for beggars to express themselves.  The judge looked to the Loper case from New York City, in which the court found begging to be a protected right, and noted that there was little difference between those who solicit for themselves and those who solicit for organized charities.  The court rejected the city’s argument, saying that there are at least some beggars who are peaceful as well as charity workers who are aggressive or intimidating, and there also are other state statutes that address threatening behavior generally that would already cover the behavior the ordinance was trying to address.

State of Texas v. John Francis Curran, No. 553926 (Tex. Mun. Ct. City of Austin 2005).
In 2003, the Austin police issued John Curran a $500 ticket for holding a sign asking for donations at a downtown intersection.  Curran is a homeless man represented by Legal Services Corporation grantee Texas RioGrande Legal Aid.  Although Curran did not contest his guilt, he fought the ticket on constitutional grounds.  The ordinance, under which the police issued the ticket, prohibited people from soliciting "services, employment, business or contributions from an occupant of a motor vehicle."  The municipal court judge declared the city ordinance prohibiting panhandling to be unconstitutional because the law violates the First Amendment, explaining that it is not "narrowly tailored in time, place, and manner."  The city, which admits it enacted the law to stop day laborers from soliciting jobs, is deciding whether to appeal. 

Wise v. Kelly, No. 05-CV-5442 (S.D.N.Y. 2005).
An individual who panhandles filed a suit on behalf of a class of individual panhandlers who had been charged with violations of a New York state law that prohibits begging.  The Second Circuit found the law unconstitutional in the Loper case in 1993.  The plaintiffs allege that arrests and prosecutions under the unconstitutional law violate their First Amendment rights.  For relief, the plaintiffs sought a judgment declaring the defendants have violated the law, as well as an injunction to cease enforcement of the law, mandate trainings for police officers and district attorneys, and remove all arrest records for those convicted under the law.  The plaintiffs also requested compensatory and punitive damages.

On June 11, 2005, the day after the suit was filed, the Bronx District Attorney’s office admitted that they should not have prosecuted any arrests made under the unconstitutional part of the state penal code and issued a written agreement with the City and the police to stop arresting and prosecuting people under this statute.  According to the agreement, police officers received notice that the statute is void.  The lawsuit is ongoing.


13 F. Supp. 2d 1064, 1068 (D. Nev. 1998).

333 F.3d at 1100-01.

Id.at 1103-04.

Id.at 1108.

City of Las Vegas v. American Civil Liberties Union of Nevada, 540 U.S. 1110 (2004).

Atchison v. City of Atlanta, No 1:96-CV-1430 (N.D. Ga. June 21, 1996).  The court later held that the plaintiffs lacked standing to challenge this ordinance.

No 1:96-CV-1430, slip. op. at 17 (N.D. Ga. July 17, 1996).

Id.

Blair v. Shanahan, 775 F. Supp. 1315, 1327 (N.D. Cal. 1991), aff’d in part and dismissed in part on other grounds, 38 F.3d 1514 (9th Cir. 1994).

Blair v. Shanahan, 775 F. Supp. 1315 (N.D. Cal. 1991).

795 F. Supp. 309 (N.D. Cal. 1992).

38 F.3d 1514, 1519-20 (9th Cir. 1994).

919 F. Supp. 1361 (N.D. Cal. 1996).

893 F.2d at 1389.

Community for Creative Non-Violence v. Turner, 893 F.2d 1387 (D.C. Cir. 1990).

56 F.3d at 713.

Id.

Id. at 718.

530 U.S. 703 (2000).

Co. Revised Stat. Ann. tit. 18, art. 9, § 112(2)(a) (West 1996).

Heathcott v. City of Las Vegas, No. CV-S-93-045 (D. Nev. Mar. 3, 1994).

999 F.2d at 701 quoting N.Y. Penal Law §240.35(l).

Loper v. New York City Police Department, 999 F.2d at 705.

No. 97-06793 RAP (C.D. Cal. July 25, 2000).

Northeast Ohio Coalition for the Homeless v. City of Cleveland, 885 F. Supp. 1029 (N.D. Ohio 1995), rev’d on other grounds, 105 F.3d 1107 (6th Cir. 1997).

1997 U.S. App. LEXIS 9056 (6th Cir. Apr. 10, 1997).

Northeast Ohio Coalition for the Homeless v. City of Cleveland, 522 U.S. 931 (1997).

177 F.3d at 956.

In Thompson v. City of Chicago, 2002 WL 1303138 (N.D.Ill. 2002), the magistrate judge dismissed as moot the plaintiffs motion for class certification for injunctive relief, but recommended that the court certify the proposed class for monetary relief.  In assessing the requirements for class certification, the magistrate found the common question of the city’s enforcement of the panhandling ordinance predominated over individual damages questions.  He also found that the class action device was a superior method for resolving the dispute, because the potential class size was great, and there was a substantial likelihood that many members of the class were either unaware of the alleged violations of the ordinance or incapable of bringing their own actions. 

903 F.2d at 153.

Young v. New York City Transit Authority, 903 F.2d 146 (2d Cir. 1990).

424 Mass. at 919.

Id. at 926.

121 Ohio App.3d at 574-75.

One judge dissented asserting that the ordinance should have been found unconstitutional because it violated the free-speech public-forum doctrine.

See D.C. Code §§ 22-2301 to 2306 (2002).

Case No. B03-30046 (Miami-Dade County Ct. 2003).

2005 WL 2373437 at *3.

Id. at *4.

Id. at *5.