6/14/2016

2016 CML ANNUAL CONFERENCE Municipal Regulation of Solicitation and Panhandling: The fate of in-street solicitation laws after Reed v. Gilbert June 23, 2016 David W. Broadwell, Asst. City Attorney City and County of Denver

1970’s: “Squeegee man”

1980’s: Flower sales

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1990’s: Newspaper Wars

Perennial Street Scene

Another Perennial Street Scene

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Legacy of Aurora Newspaper Hawker Case (1996) • Aurora ordinance banned solicitation of “employment, business, contributions, or sales of any kind, or collection of money for same” – On “traveled portion” of a street or highway – From a median – On any interstate highway, including ramps

Ordinance was determined to be “content-neutral” and was upheld in Denver Publishing Company v. City of Aurora, 896 P.2d 306 (Colo. 1995)

Denver and other cities follow Aurora’s lead • In 2001, Denver adopted an ordinance identical to Aurora’s, banning all forms of solicitation in the “travelled portion” of streets. Sec. 54-548 (b)(1), D.R.M.C. • In 2005, Denver extended the prohibition to medians. Sec. 54-548 (b)(2), D.R.M.C. • The key factor: All forms of solicitation for all purposes were equally prohibited! Reed v. Gilbert apparently requires solicitation ordinances to be treated as contentbased forms of regulation.

The firefighters strike back! • HB 12-1117 (§§ 19-6.5-101, et seq., C.R.S.) • “The most successful fundraising event that firefighters have employed is the signature "fill the boot" campaign, which consists of firefighters asking motorists passing fire stations to contribute to the causes specified in paragraph (a) of this subsection (1) by putting money into firefighter boots or facsimiles of firefighter boots” • “A local government may permit, in its discretion, a charitable organization to engage in a solicitation for a charitable purpose, which solicitation involves persons standing in or adjacent to a public roadway and soliciting donations from motorists”

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Recent Cases • Browne v. City of Grand Junction, 27 F.Supp.3d 1194 (D. Colorado 2014) • Pre-Reed v. Gilbert. Granted TRO against one sentence in GJ ordinance banning solicitation from any vehicle “on any state highway” as being content-based and overbroad. • But implied that prohibition against entering “traveled portion of street” to solicit might still be defensible.

Recent Cases • Cutting v. City of Portland, 802 F.3d 79 (1st Cir., 2015); Thayer v. City of Worcester, 2015 WL 6872450 (D. Mass., 2015). • Both cases strike down ordinances that banned the act of standing/loitering on medians and traffic islands citywide. – Such ordinances are “content-neutral” – But medians are “traditional public forum” space (really?) – And the ordinances were deemed overbroad; prohibiting too much speech; must be more narrowly tailored to survive.

Recent Cases • Watkins v. City of Arlington, 123 F.Supp. 856 (N.D. Texas, 2015); Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, 2016 WL 705128 (E.D. Mo., 2016). • Upholding content-neutral ordinances prohibiting the distribution of items to motorists in the roadway. • Arlington: Distribution to motorists stopped at red light. • Desloge: “No person shall stand in or enter upon a roadway for the purpose of distributing anything to the occupant of any vehicle.”

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Post-Reed regulatory options? • Focus on the act of giving or receiving anything to or from a motorist by a person who enters a travel lane to do so. • Prohibitions against the act of standing or loitering on traffic islands and medians for any reason might still be possible, if narrowly tailored to address real safety concerns in specifically identified locations. • Consider using conventional laws such as jay-walking and obstruction of the public way, to deal with persons who wander into traffic to interact with motorists.

Wave of the future . . . .

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Browne et al v. City of Grand Junction Shelly Dackonish Sr. Staff Attorney, City of Grand Junction 2016 CML Conference Topic – Municipal Regulation of Solicitation

Grand Junction - Back-Story 2006-2008 “Giving spare change won’t make a change ...” sign/PSA campaign; partnership among local government and service agencies (United Way, Catholic Outreach, Homeless Coalition)  Campaign to increase awareness of resources available to the poor  2009 City Council unanimously rejected an aggressive panhandling ordinance, citing First Amendment concerns 

Back-Story, cont. 

The Taunt (op column: June 19, 2013) ◦ “There are only three reasons...” ◦ “For Pete’s sake don’t” listen to your legal counsel... ◦ Beetlejuice x3

Grand Junction Daily Sentinel: “Careful lawmaking needed on panhandling,” editorial, August 19, 2013; letters  Vagrancy Committee  There oughta be a law 

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Isn’t there already a law?     

  

CRS §18-9-111 (touching, following or directing obscene language or gesture at someone with the intent to harass or alarm); GJMC §9.04.030(b) (molesting pedestrians upon the streets or in other public places by following them on foot); CRS §18-9-114 (stopping or forcibly hindering the operation of a vehicle); CRS §18-9-107 (obstructing a highway, street, sidewalk, railway, waterway, building entrance, elevator, aisle, stairway or hallway); CRS §18-9-106 and GJMC §9.04.040 (coarse or offensive utterances gestures or displays in a public place tending to incite imminent breach of the peace); CRS §18-3-206 (placing or attempting to place a person in fear of imminent serious bodily injury by threat or physical action); CRS §18-3-207 (demanding money under threat of harm); CRS §18-3-201 (injuring, attempting to injure or threatening to injure someone).

“Prevent” and “deter” Feb. 5, 2014 Police Chief’s report supporting the panhandling ordinance: “Although panhandling complaints can occasionally be enforced through other ordinances such as harassment, such enforcement is not preventative in nature, and is dependent on the filing of a report by a victim.”  Ordinance needs to be useful as a “deterrent to panhandling activity that is aggressive or dangerous.” 

“Prevent” and “deter” “Prevent” and “deter” are red flags when used with respect to laws affecting protected speech  “Prior restraints on speech ... are the most serious and least tolerable infringement on First Amendment rights.” Warren E. Burger, Chief Justice, 1976  Certain amount of social unrest is to be tolerated in the name of free speech (Terminiello v. Chicago, 337 U.S. 1, (1949)) 

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“Aggressive” panhandling 

Police Chief cited an increase in complaints of “aggressive” panhandling

◦ “439 calls complaining of panhandling activity, in Mesa County, 377 of which were within the City” ◦ “[A]necdotal reports of more aggressive behavior are becoming commonplace. Particularly in the downtown area and along Main Street...”



But upon closer look, very few calls related to aggressive or threatening panhandling; most related to mere presence of vagrants, panhandlers or peaceful requests for money

Begging is protected speech Solicitation of charitable contributions is protected speech (Schaumburg, 444 U.S. 620 (1980); Riley 487 U.S. 781 (1988)).  “Soliciting alms” is protected speech, U.S. v. Kokinda  Browne: A request for money (whether for one’s self or another, whether for now or later) is protected speech (Order, p. 7 and p. 11) 

The First Amendment is “first” for a reason Bedrock of liberty and a free society “It is the function of speech to free men from the bondage of irrational fears.” Justice Brandeis, Whitney v. California, 274 U.S. 357 (1927).  “A bedrock principle underlying the First Amendment is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397 (1989) (flag burning).  

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Facial challenge under First Amendment In other contexts, a law need only have a “plainly legitimate sweep;” for a facial challenge to prevail the plaintiff must show that there is no conceivable way the law could be constitutionally applied  But under the First Amendment, plaintiff need only show that there are a substantial number of instances in which the law could be unconstitutionally applied (overbreadth) 

What about fraud? What about the panhandler with the gas can who never seems to buy gasoline and drive “home”?  If fraud is the concern, the law must address fraud directly, not panhandling generally  A law that prohibits begging to prevent fraud is facially overbroad  Analogy: Banning panhandling to prevent fraud is like banning all religious practice to prevent human sacrifice 

Ordinance No. 4618 

Prohibited panhandling in certain places, at certain times, and in certain manners: ◦ ◦ ◦ ◦ ◦ ◦

Aggressive/threatening/obscene/coercive Fighting words/imminent breach of the peace Grabbing or touching Of at-risk persons Night-time At sidewalk cafés, on a public bus, in parking garages/lots, of people waiting in line ◦ Near ATMs, bus stops and schools ◦ Repeated requests ◦ Obstructing passageways, sidewalks, doors

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Ord. No. 4618 Panhandling was defined as: “to knowingly approach, accost or stop another person in a public place and solicit that person, whether by spoken words, bodily gestures, written signs or other means, for money, employment or other thing of value.”  Emphasis was intended to be on conduct rather than on speech 

Ord. No. 4618 

Also prohibited any kind of solicitation (not just that defined as panhandling) of a vehicle occupant ◦ on any state or interstate highway ◦ where the person soliciting entered into the street to complete the transaction or where the vehicle can’t move into a parking area to safely complete the transaction

ACLU lawsuit 7 plaintiffs (4 individuals who panhandled, one individual who interacted with panhandlers, one group who solicited aid for the poor, and Greenpeace, which solicited donations for its causes)  Challenged all of the ordinance except: aggressive/threatening/obscene/coercive, touching/grabbing, unsafe roadway conduct, fighting words, and obstructing throughways  Sought injunction 

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Preliminary injunction Judge Brimmer found that none of the plaintiffs alleged that they engage in “panhandling” as defined in the ordinance because they did not “approach, accost or stop” people  Restrained the section prohibiting any kind of solicitation on any state or interstate highway (because it could apply to plaintiff’s constitutionally protected activities)  Found the ordinance is content-based 

Amended Ordinance (No. 4627) 

Eliminated some sections: ◦ At risk persons ◦ Near schools ◦ Soliciting on state / interstate highways (restrained portion)



Amended other sections: ◦ Reduced buffer around ATMs, bus stops from 100 to 20’ ◦ Limited parking lots/garages to public facilities ◦ Added “without the person’s consent” to the definition of panhandling

Browne: Law is content-based Judge Arguello also concluded that the ordinance was content-based because: “it does not regulate speech in which a person asks for directions, a restaurant accommodation, or political support. Nor does the ordinance apply to people who ... simply pass the time with idle chit chat while waiting in line to use an ATM or enter a building or sporting event ... or a friendly greeting at a bus stop ... in the early morning hour before sunrise.” Browne, Order on Motion to Dismiss, 6/8/15.

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Browne: Not narrowly tailored The City has a compelling interest “public safety,” BUT  “[T]he challenged parts of Ordinance No. 4627 are over-inclusive because they prohibit protected speech that poses no threat to public safety.”  The court also found that the City demonstrated no credible threat to public safety from panhandling: 

Browne: No inherent threat from certain kinds of panhandling There is no indication that panhandling at night is inherently dangerous or threatening.  Repeated requests for money do not threaten public safety.  Requests for money at an ATM, bus stop, parking area, line or sidewalk café are not inherently threatening. 

Browne: Provisions struck down 

Judge Arguello permanently restrained all the challenged portions of Ord. 4627: ◦ ◦ ◦ ◦ ◦



Night-time ban Repeated requests 20’ bubble around ATMs and bus stops In public parking areas Of people who are dining and waiting in line

Based on Reed, the City is also not enforcing any of the remaining panhandling restrictions even though they were not challenged in this lawsuit

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Strict scrutiny - the death knell? Legal scholars have said: “Strict in theory, fatal in fact;” for panhandling laws, strict scrutiny probably is fatal in fact  Judge Arguello (Browne case) said there was no way the City could demonstrate that its ordinance is necessary to serve a compelling state interest (Final Judgment, p. 23)  Incidents of aggressive/threatening panhandling cited were not enough 

Least restrictive means A law regulating panhandling must be the least restrictive means of meeting the compelling government interest  If the law regulates only aggressive or threatening behavior, are the laws already on the books less restrictive means of protecting public safety than a law which targets only begging?  Browne decision does not address this (the ACLU did not challenge the aggressive panhandling section (b) of the ordinance) 

Browne: Disposition  “Thus, the

problem in this case is that Grand Junction has taken a sledgehammer to a problem that can and should be solved with a scalpel.” (Final Judgment, p.28).  What law would meet this “scalpel” standard?

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Browne: Disposition 

“The Court notes that certain behavior that may be engaged in by solicitors when soliciting could threaten public safety. For example, the solicitor may engage in conduct that is intimidating, threatening, coercive, or obscene and that causes the person solicited to fear for his or her safety...At times threatening behavior may accompany panhandling, but the correct solution is not to outlaw panhandling. The focus must be on the threatening behavior.” (Final Judgment, p. 28.)

So what’s left? In terms of regulating panhandling, not much  A law that is content-neutral is likely to be overbroad (e.g., prohibiting stopping or accosting someone in certain places / times for any purpose; see also Cutting)  Although “solicitation” is broader than “panhandling,” an anti-solicitation law would still be content-based under Reed 

Limited or non-public forum 

A city could regulate speech in a nonpublic forum: ◦ Inside a stadium or arts venue (sidewalks outside are generally traditional public fora) ◦ Inside a public transit system (bus, subway, train) ◦ Inside public buildings (but grounds and parks are traditional public fora) ◦ Libraries? Rec centers?

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Aggressive panhandling Law prohibiting panhandling that is aggressive, threatening or obscene might withstand strict scrutiny  But consider: 

◦ the least restrictive means requirement ◦ the Browne court’s rejection of the “threat” element in the encounters described by City officials; bar may be higher than we think



Should have both a subjective and an objective “threat” standard (such as “causes someone to reasonably fear for his/her safety”)

Aggressive panhandling, cont. A law prohibiting only aggressive panhandling does not allow police to do what people seem to be asking, which is to remove even peaceful beggars from certain (all?) areas of a community  Is this a compelling governmental interest in the first place? Is it based on a “rational fear”?  The Browne court and Reed progeny answer both of those questions “No” 

Browne et al v. City of Grand Junction

QUESTIONS / IDEAS / THOUGHTS / COMMENTS?

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1

Speech includes spoken and written words, signs, symbolic speech and other expressive conduct.

Presumptively constitutional

communication available

are ample alternative means of

manner are allowed, so long as there

Restrictions on time, place and

significant government interest

Intermediate scrutiny: Law must be narrowly tailored to protect a

within 25 feet of a foreign embassy

Example: Law prohibiting any signs

content of speech

Law makes no reference to the

CONTENT-NEUTRAL LAWS

Presumptively unconstitutional

the law fails)

a less restrictive way to protect the interest,

means for achieving that interest (if there is

Ordinance must be the least restrictive

to something merely preferred or better)

tailored to further a compelling governmental interest (compelling means something necessary or crucial, as opposed

Strict scrutiny: Law must be narrowly

embassy (Boos v. Barry, 485 U.S. 312 (1988)

governments within 500 feet of a foreign

Example: Ban on signs criticizing foreign

content)

“panhandling,” and “solicitation” refer to

Law refers to content of message (“begging,”

CONTENT-BASED LAWS

Streets, sidewalks, medians and parks are traditional public forums. Speech can be restricted in a non-public forum. st 7 1 th th 11 d 2 th 9 Some circuits had held that panhandling ordinances were content-neutral ( and Circuits), others that they were content-based ( and Circuits), others had not th 10 th 6 th 6 ( squarely addressed the question (e.g., Circuits) & Cir. in 2013 held that “soliciting financial support is undoubtedly subject to reasonable regulation” [Speet case]). Regardless of which level of scrutiny applies, a law restricting speech cannot be overbroad or unconstitutionally vague. Overbroad means that a law regulates substantially more speech than is needed to further the government interest (example: law prohibiting “photographs of naked persons,” even though it regulates pornography, is overbroad). A law is too vague when it is not possible for a reasonable person to determine what speech or conduct is not permissible. Commercial speech is constitutionally protected but under Central Hudson and progeny subject only to intermediate scrutiny. It is unclear whether this survives Reed.

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Strong presumption in favor of the legislative determination

Reasonable and not arbitrary basis

Rational basis test: whether the law is rationally related to furthering a legitimate government interest

Example: Law prohibiting obscenity

constitutionally protected

Law restricting speech that is not

LAWS RESTRICTING UNPROTECTED SPEECH 5

THREE LEVELS OF SCRUTINY: 4

Until Reed and the Supreme Court’s instructions to the 1st Circuit in Thayer, the question of what standard applied to regulation of begging was unsettled. 3 Following Reed and Thayer, laws that restrict panhandling are content-based, presumptively unconstitutional and subject to strict scrutiny. Judge Arguello’s disposition of Browne v. City of Grand Junction reflects that standard.

CONSTITUTIONAL STANDARDS FOR GOVERNMENT REGULATION OF SPEECH’ IN TRADITIONAL PUBLIC FORUMS 2