Suits against cities moot, judge decrees

Disputed panhandling rules replaced

FAYETTEVILLE — A federal judge said Tuesday that a motion for an injunction to prevent Rogers and Fort Smith from enforcing panhandling laws is moot because both cities have changed their ordinances since the lawsuit was filed.

U. S. District Judge Tim Brooks’ order said Fort Smith eliminated “begging” as a prohibited activity and repealed and replaced its ordinance. Rogers also repealed and replaced the ordinance over which it was sued.

“In light of these developments, the motion for a preliminary injunction is moot,” Brooks wrote.

Lawyers for Rogers and Fort Smith on Tuesday asked that the claims against the cities be severed. Fort Smith wants the claims against it transferred from the Fayetteville Division of the U. S. District Court for the Western District of Arkansas to the Fort Smith Division. Rogers is in the Fayetteville Division.

“In essence, plaintiff ’ s claims pertain to completely separate incidents, under separate ordinances, enforced or potentially enforced by separate police departments in geographically distanced cities,” according to the motion filed by Colby Roe, an attorney for Fort Smith Police Chief Nathaniel Clark. “As a result, the two unrelated plaintiff’s claims do not arise out of the same transaction, occurrence or series of transactions or occurrences and there is not a question of law or fact in common.”

Fort Smith’s new ordinance was approved after the state chapter of the American Civil Liberties Union in June sued Fort Smith and Rogers and separately sued Hot Springs over their panhandling ordinances.

Jerry Canfield, city attorney in Fort Smith, said the new ordinance is not about panhandling but about keeping people out of the roadways who don’t have to be there.

The lawsuits contend the cities’ ordinances are unconstitutional because limiting or disallowing panhandling restricts First Amendment rights.

The Hot Springs City Council was to consider amending its panhandling ordinance in July but pulled the item from the agenda on the advice of the city attorney.

Rogers city attorneys were reviewing the solicitation ordinance and working with the ACLU, a city spokesman said in July.

Bettina Brownstein, a Little Rock attorney handling the lawsuit for the ACLU, said she understands why municipalities want to ban panhandling but that the First Amendment does not allow them to restrict the practice.

Brownstein said she reviewed the new Fort Smith ordinance and concluded it would not pass constitutional scrutiny. She expects to challenge it, too.