ACLU says Hot Springs law still targets beggars

HOT SPRINGS — An amended complaint has been filed by the American Civil Liberties Union of Arkansas saying the city is targeting panhandling in the name of public safety.

Promoting safety on public rights of way is the stated intent of the ordinance the Hot Springs Board of Directors adopted Dec. 5.

But the Arkansas chapter of the ACLU said Hot Springs is regulating activity “intrinsic” to panhandling. The ordinance, adopted without an emergency clause, makes it unenforceable until 30 days after adoption.

The amended complaint seeks to permanently stop the city from enforcing its new ordinance.

“[The ordinance] is unconstitutional because it was motivated by animus on the part of the city toward beggars and leafletters, and the city had a discriminatory motive in enacting it,” the amended complaint stated.

Filed on behalf of Michael Rodgers by the American Civil Liberties Union of Arkansas, the complaint resumes the lawsuit that the organization initiated in June. At that time, the ACLU sought to stop the enforcement of an earlier ordinance the board had adopted in response to an increase in panhandling at busy intersections.

The litigation was on hold while the ACLU waited to see how the board would proceed after its August repeal of the September 2016 ordinance that prohibited the solicitation of donations from motorists on public rights of way. The ACLU said the old ordinance was a content-based restriction specifically aimed at panhandling.

The ordinance adopted earlier this month doesn’t allow pedestrians and motorists to “interact physically,” a restriction the ACLU said continues to criminalize panhandling and other constitutionally protected forms of expression.

“The ordinance is content based in that it is designed to prohibit individual panhandlers and leafletters from exercising their right to free speech while allowing other types of speech to proceed unimpeded and includes a ban on soliciting in traditional public forums,” the complaint said.

City Attorney Brian Albright said Monday that the new ordinance doesn’t differentiate the type of activity that leads to the physical interaction, explaining that it’s prohibited irrespective of the precipitating act.

“I understand their angle,” he said. “They think this is still targeting panhandling. It’s not just panhandling. It’s an effort to try and keep any pedestrian out of the streets and rights of way. Whether it’s a charitable organization, a politician or even the Fire Department doing a pass-theboot fundraiser, it’s a bad situation. Pedestrians and cars don’t mix.”

The ordinance describes physical interaction on a public right of way as an “attempt to make physical contact with a motor vehicle or any object or occupant therein,” or “to make physical contact or attempt to make physical contact with a pedestrian or object in the possession of such pedestrian by an occupant of a motor vehicle.”

The complaint said the ordinance is intentionally vague, making it unclear exactly what type of activity is prohibited, but Albright reiterated the exception for free speech and expression stipulated in the ordinance.

“We’re trying to regulate anything that puts a pedestrian in close proximity to physical contact with a vehicle,” he said. “There’s nothing in this ordinance that restricts someone from walking up and down the sidewalk and holding a sign. They’re just not allowed to have physical contact with a vehicle.”

Rodgers’ 2015 conviction in Hot Springs District Court for violating the state’s loitering statute was dismissed in Garland County Circuit Court the following June, leading to the increased presence of panhandlers in high-traffic areas.