Posted on 07/27/2013 2:53:00 PM PDT by SandRat
[Citing First Amendment, ACLU sues to stop panhandling arrests]
PHOENIX - The American Civil Liberties Union wants a federal judge to block police in Arizona from enforcing a law making begging a crime, calling it an infringement on free speech.
ACLU attorney Dan Pochoda said the measure is unconstitutional because it makes people subject to arrest not because they are loitering, but because of what they are saying. He contends asking someone for money is no different from politicians seeking support on the same public streets.
The lawsuit is most immediately aimed at the city of Flagstaff which, in an effort to help local merchants, has used the law to arrest hundreds of people. Pochoda wants those arrests halted.
But he also wants U.S. District Judge Neil Wake to rule the state law itself is void, making it unenforceable anywhere in Arizona.
Attorney General Tom Horne declined to comment.
"It's being reviewed," he said. And Kimberly Ott, spokeswoman for Flagstaff, said city officials would have nothing to say until the council gets a chance to review the lawsuit next month.
The law has been on the books for years. But it was not until 2008 when Flagstaff police, responding to complaints by merchants, started to use it to have undercover officers make arrests.
Police admit the idea is to sweep the streets of panhandlers early in the day, before they can cause more problems later. The department even said Operation 40, as it has been called - both after Interstate 40, which bisects the city, and the 40-ounce bottles of beer popular with some - has resulted in an overall decrease in crime.
Pochoda said police remain free to arrest those who commit specific crimes. What they cannot do, he said, is this kind of pre-emptory approach.
"There's no doubt that peaceful begging is speech, fully protected under the First Amendment," he said.
His position is backed by a 9th U.S. Circuit Court of Appeals ruling in 2006 striking down a Las Vegas ordinance banning soliciting for money in particular areas of that city.
The judges in that case acknowledged the ordinance was designed not so much to stop the begging but to control "the secondary effects of solicitation." But the appellate court said the law was invalid because it affected only a particular kind of speech, in this case, begging.
Two years later, U.S. District Judge Roslyn Silver used that to strike down a Cave Creek ordinance making it illegal to stand on or near a road to beg or solicit a job.
"It prohibits solicitation speech, but not political, religious, artistic or other categories of speech," Silver wrote.
"It also prohibits solicitation on the topics of employment, business or contributions, while allowing solicitation of votes or ballot signatures."
Pochoda, in his request for an injunction, said the state law, and the way it is enforced, has the same problem.
"A solicitation to vote for a candidate or attend a concert, join an organization or eat at a particular restaurant, delivered in the same manner and tone as that for money, would not result in violation or arrest," he told Wake in the request for the injunction.
No date has been set for a hearing on the injunction request.
"There's no doubt that peaceful begging is speech, fully protected under the First Amendment."
Dan Pochoda
ACLU attorney
If it were there would be no politicians in Arizona
I saw the impact of panhandlers on the effort to redevelop the St. Petersburg downtown. Malls are private property, as are strip stores. So, the owners can run off panhandlers and their patrons don’t have to deal with the mostly threatening behavior. But if your business is on a city street your customers have to run a gauntlet of sometimes deranged crazies with snot dripping down their faces. I saw a bum keep a woman from her Mercedes until, terrified, she threw some bills at him and ran. You can bet he’ll keep that behavior up as it works.
For a while the St. Pete police would “arrest” the bums and take them to the processing center at the edge of the county. There, they’d “discover” they had nothing to hold them on and let them go. The closest city was Clearwater. Clearwater sued and that was when I left so I don’t know how it came out. But St. Pete is fully developed. They appear to have extremely aggressive police patrols of the city sidewalk cafes and parking areas. But my friends tell me it’s still relatively dangerous at night.
I was returning from the gym the other day and a bum was sleeping on a sidewalk on a small commercial stretch of a street in our peaceable little town. I called the cops and learned their metric to determine if they could roust him: “Is he completely blocking the sidewalk?”
If he is sprawled over the entire walk and you can’t pass, he’s breaking the law. Otherwise he is within his lawful rights to sleep wherever he wants.
Yet again, the rights of the 99.99% majority trampled by the 0.01% minority. The public town square, open to all, is made filthy and fouled and “the courts” say “There’s nothing you can do about it. We have spoken.”
Good thing, probably. Most of us will probably be in the streets begging by 2017.
Many years ago, when Flagstaff was still a fairly small town, they had a old-school Arizona Sheriff. He was a very hard looking man. His deputies looked like a BYU football defensive line, all big, muscular men, and were intensely loyal to him.
However, his jail only had three cells. So whenever he had a full house, the other prisoners would just walk around town with him on his rounds, obeying every instruction precisely. This was because his reputation as an ice cold, deadly shot, who would kill, was known to all.
No handcuffs needed.
If begging is free speech then so is a hooker standing on the street corner.
Lots of panhandlers at the University of Texas. But the bastion of liberalism had UT security start arresting those who begged on the UT side of the street. Now they’re all across the street and they harrass the hell out of people.
ugh
I’ll be in that hood soon...
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