ACLU challenges public begging law

In November, a federal judge in Little Rock invalidated part of an Arkansas law that banned public begging, saying it was unconstitutional.

On Monday, just more than eight months later, the American Civil Liberties Union of Arkansas challenged this year’s legislative rewrite of the disputed section, which the attorney general’s office conceded last year was unconstitutional.

The ACLU contends in a lawsuit filed in federal court in Little Rock that the new law, which went into effect last week, “has the exact same effect as the previously invalidated law.”

In a Nov. 22 ruling, U.S. District Judge Billy Roy Wilson permanently enjoined law enforcement officers across the state from enforcing Section (a)(3) of Arkansas Code 5-17-213. It had been in effect for more than 30 years and made it illegal for a person to “linger or remain in a public place or on the premises of another for the purpose of begging.”

Other sections of the state loitering law weren’t affected by Wilson’s ruling and remained intact. They prohibited lingering or prowling “under circumstances that warrant alarm or concern for the safety of persons or property in the vicinity” without identifying oneself and giving police a “reasonably credible account” for

being there; lingering in or near a school building without having responsibility for, or a custodial interest in, a student; and lingering for purposes of illegal gambling, drug dealing, drinking or distributing alcohol, spying on someone or otherwise invading their privacy; and lingering near an automatic teller machine without a legitimate purpose.

The new lawsuit, filed on behalf of the same plaintiffs as last year’s challenge, was tagged as a related case and as such is again before Wilson, who is being asked to declare the state’s newly worded ban on panhandling unconstitutional and halt its enforcement as well.

“This new statute also restricts protected First Amendment speech and expressive conduct on all public sidewalks, roadways, rights-of-way, and other places historically held open for speech,” the lawsuit states. “On its face, the new statute discriminates against one type of speech by limiting [the 2017 version of the same law] to individuals standing or remaining ‘for the purpose of asking for anything as a gift.’”

The lawsuit argues that the new wording creates “a content-based restriction … and should be invalidated on its face.”

The ACLU says the plaintiffs — a disabled man and a homeless man who used to hold signs asking for money — are scared to exercise their free-speech rights because of the possibility of citation, arrest and prosecution under

the new law, which is overly broad with “poorly defined provisions.”

Both men were charged in 2015 with violating the now-outlawed section, even though their charges were ultimately dropped by a prosecuting attorney or successfully appealed to circuit court.

The ACLU said in a news release that “the new law, like a previous begging ban that was struck down by the courts last year, criminalizes people who ask for help.”

Even though the plaintiffs ultimately won their cases, they underwent harassment for begging, and “They are not alone,” the lawsuit states. “Many others also suffer this same government persecution for their speech.”

The threat of being cited, arrested, detained, prosecuted, convicted and penalized has “chilled” them and others “from exercising their constitutionally protected rights to ask others for money, food or other charity,” the suit states.

It argues that through the newly worded law, “the state selectively criminalizes requests for charity or a gift. A solicitation to vote for a candidate, attend a meeting, join an organization or eat at a particular restaurant, delivered in the same manner and tone as that for money or other charity, would not result in citation or arrest under this provision.”

“We understand that being asked for money can make some people uncomfortable, but making an end-run around the Constitution is not the answer,” Rita Sklar, executive director of the ACLU’s Arkansas chapter, said in the news release announcing the lawsuit.

She added, “The freedom

of speech is a right guaranteed to everyone under the Constitution, including people who are down on their luck.”

Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said Monday that the attorneys for the state will again represent the defendant — Col. Bill Bryant, director of the Arkansas State Police — in the latest legal challenge.

“Attorney General Rutledge will review this lawsuit and intends to fully defend the law that was passed by the General Assembly,” Deere said.

Bill Sadler, a spokesman for the state police, didn’t want to comment until the agency had been served with the complaint and was able to examine it closely.

Although the ACLU had argued last year that the entire law — not just the section struck by Wilson — was unconstitutional, it chose to focus on that section alone to avoid extending the case.

“By censoring and even criminalizing people based on the content of their speech, this law violates the Constitution and infringes on one of our most fundamental freedoms,” Bettina Brownstein, an ACLU cooperating attorney, said Monday in the news release, referring to the newest version of the law.

“If we don’t defend unpopular speech, everyone’s speech rights are at risk,” she added.

One of the plaintiffs is Michael Andrew Rodgers, a disabled veteran in Garland County who in 2015 was arrested once and cited four times. One of his charges never made it past the scrutiny of the prosecuting attorney, but Rodgers was jailed, tried and

assessed court fines and fees on the other charges, though he later successfully appealed through Brownstein.

The other plaintiff is Glynn Dilbeck, a homeless man who was cited by a state trooper in 2015 for holding up a sign asking for money at an interstate exit in Benton County, though the prosecuting attorney later reviewed and dropped the charge.

While the lawsuit names the state police director as the defendant because state troopers issued warnings and citations under the former version of the law, they are considered representative of law enforcement officers across the state.

“Under this statute, warnings, citations and arrests specifically depend on the content of an individual’s speech,” the lawsuit states. “Only if the individual is ‘loitering’ for the purpose of asking for charity or a gift may the individual be prosecuted under this law. Therefore, this is a content-based restriction, and the government has not narrowly tailored this statute to address a compelling state interest.”

It argues that the section also fails to define what constitutes asking for charity or a gift “in a harassing or threatening manner” or “in a way likely to cause alarm to the other person,” and says it therefore “fails to give fair notice of what constitutes punishable conduct under the law and should be void for vagueness.”

The five-page order Wilson issued Nov. 22 granted the plaintiffs’ request for a permanent injunction barring the section’s enforcement and came only a month after the suit was filed.