Judge: Pan­han­dling in­junc­tion moot

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - RON WOOD Ron Wood can be reached by email at rwood@nwadg.com or on Twit­ter @NWARDW.

FAYETTEVILLE — A fed­eral judge said Tues­day a mo­tion for an in­junc­tion pre­vent­ing Rogers and Fort Smith from en­forc­ing pan­han­dling laws is moot, be­cause both cities 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 it was sued over.

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

Lawyers for Rogers and Fort Smith on Tues­day asked the claims against the cities be sev­ered. Fort Smith wants the claims against it trans­ferred from the Fayetteville Di­vi­sion to the Fort Smith Di­vi­sion of fed­eral court. 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 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 isn’t about pan­han­dling but about keep­ing peo­ple out of the roads 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 the First Amend­ment doesn’t al­low them to re­strict the prac­tice. Brown­stein said she re­viewed the new Fort Smith or­di­nance and con­cluded it wouldn’t pass con­sti­tu­tional scru­tiny and she ex­pects to chal­lenge it, too.

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