ACLU chal­lenges pub­lic beg­ging law

Northwest Arkansas Democrat-Gazette - - NOTHWEST ARKANSAS -

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.

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