City’s panhandling predicament
Officials seek to tighten restrictions on begging while maintaining First Amendment protections
Santa Fe city officials once again are attempting to reduce panhandling, long a source of complaints from downtown merchants, tourism promoters and others annoyed by people who ask passers-by for money.
The city in 2010 outlawed aggressive panhandling by people who block sidewalks, use foul language or touch their intended benefactors, or those who beg from medians or near cash machines, bus stops and parking lots. Data released last week by the Santa Fe Municipal Court show cases filed against panhandlers more than tripled from 2010 to 2016.
Councilors Renee Villarreal and Signe Lindell, who represent the downtown business district, recently proposed even stricter language in the city’s panhandling ordinance, which included prohibiting begging within 20 feet of any business. That proposal was tabled last week by the city Public Safety Committee, reflecting the difficulty local lawmakers face in restricting people from soliciting money without violating free speech rights. Neither councilor responded to requests for comment.
Critics say the measure could effectively ban a form of speech in the dense commercial area including the Plaza.
But other ways to reduce panhandling are percolating.
The police chief, Patrick Gallagher, floated the idea of installing an old parking meter on the Plaza. Then donations could be made for cityfunded programs to deal with homelessness.
Simon Brackley, president and CEO of the Santa Fe Chamber of Commerce, said the meter could serve as another option for anyone who wants to show generosity but doesn’t want to hand money directly to panhandlers.
Greg Gurulé, a spokesman for the police department, said in an email that Gallagher brought up the idea of the parking meter with downtown merchants in a midsummer meeting. But the idea has not been formally proposed, said Matt Ross, a spokesman for the city.
On Saturday, police received a complaint about panhandling from a customer at the Starbucks on West San Francisco Street, where people were playing music.
Jen Carroll, a manager of the Starbucks, said panhandlers made remarks to a regular customer, who called police. It’s a difficult situation, she said, with her customers often complaining after stepping over panhandlers on the narrow sidewalk. Carroll said she does not mind someone earning a living by playing music on the sidewalk. But other activities hurt the store’s bottom line.
“I would rather they not panhandle, not loiter and not smoke,” Carroll said.
Panhandlers say they’re trying to make money.
Near the coffee shop, Dylan Howard, 24, sat on the sidewalk on a skateboard one recent afternoon. He asked a passerby if he would exchange his sunglasses for a soul — a line he learned from a friend.
Howard said he is from Tulsa, Okla., and travels the country on freight trains. He said he had been in Santa Fe for almost a week, panhandling by day and sleeping under bridges by night. By midafternoon, he said, he had collected about $12.
Earlier, Howard said, he was playing a ukulele with others in front of the Starbucks store when a police officer informed him they needed a permit to play music. He said police “ran our names and told us we can’t panhandle.”
Howard moved away from the Starbucks but continued to panhandle, this time without an instrument to help him make money. Shown the list of city restrictions on panhandling, Howard said he was unaware of many of the prohibitions.
Howard said he sees no problem with panhandling, as long as one is not aggressive about it.
“I just don’t understand why it’s illegal to sit down and ask for help,” he said. “It’s either ask or steal, and I’m not much of a thief.”
Peter Simonson, executive director of the New Mexico American Civil Liberties Union, said in an email that a 2015 U.S. Supreme Court ruling, handed down years after Santa Fe instituted its panhandling ordinance, rendered the law unconstitutional.
In a unanimous opinion written by Justice Clarence Thomas, the U.S. Supreme Court justices ruled that a “government, including a municipal government vested with state authority, ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content,’ ” Simonson said.
The case dealt with the Arizona town of Gilbert’s restrictions on displaying signs in public, but Simonson said courts in Massachusetts, Illinois, Colorado and Maine have relied on it to strike down panhandling ordinances, several of which were similar to Santa Fe’s.
In 2010, when the Santa Fe City Council passed language banning “aggressive” panhandling, the New Mexico ACLU sent a letter warning that the proposal may violate the First Amendment and due process protections. Simonson’s letter said the amendments currently in place, banning panhandling around bus stops, cash machines and other places creates “complex web of restrictions” that a reasonable person cannot be expected to know.
“Panhandling is speech that confronts people on the street with the uncomfortable truth of poverty in our community,” Simonson wrote in his 2010 letter to the city. “We may not like the speech, but it is protected by our Constitution, and being exposed to it is one of the corollaries of living in a truly free society.”
Simonson said that if the 2015 U.S. Supreme Court ruling, Reed v. Town of Gilbert, Ariz., had come down in 2010, “we would have recommended the city abandon the legislation altogether.”
City code says, “Panhandlers may engage in the act of panhandling on public property in the city provided that the panhandler comply with the following regulations.” The law then lists well over a dozen restrictions on the time, place and manner of panhandling, violations of which are a petty misdemeanor that can send a beggar to county jail.
Ross, the city spokesman, did not respond to questions about whether the city attorney’s office is confident in the constitutionality of the current panhandling ordinance, or why the proposal to make it stricter was tabled.
Warnings from the state ACLU have not stopped police from enforcing the ordinance. Police in 2016 issued 86 panhandling citations compared to 25 such cases in 2010. There have been 43 panhandling citations from Jan. 1 to Sept. 19 of this year, records show.
Yet such data does not give a full picture of interactions between police and panhandlers, because such cases are often reported as disorderly conduct calls, according to Gurulé.
“For panhandlers, we give a verbal warning, then cite,” Gurulé said. He added that arrests are made only after repeated warnings are ignored.
Chad Chittum, the city prosecutor, said the maximum penalty for a petty misdemeanor panhandling citation is up to 90 days in jail, a $500 fine or both. But Chittum said he does not seek for a judge to impose the maximum penalty. Rather, Chittum said he often seeks deferred sentences that might address the underlying causes of panhandling, such as homelessness.
Under such a sentence, a defendant may be ordered to perform community service through such organizations as The Life Link or the Interfaith Community Shelter, where those in need may get treatment or social services.
Still, deferred sentences also may present legal and financial liabilities, including probation violations and court costs. And court-ordered volunteering does not address homelessness by putting money in one’s pocket. City code says defendants sentenced to community service “shall not be entitled to any wages, shall not be considered an employee for any purpose and shall not be entitled to workers’ compensation, unemployment benefits or any other benefits otherwise provided by law.”
Police also have discretion to book panhandlers in jail pending arraignments, resulting in a mugshot that any potential employer can easily find online.
Elena Cardona, a public defender who represents indigent defendants in municipal court, said she sees panhandling cases filed from all parts of the city, not just downtown.
Cardona says there is a First Amendment dilemma with the city’s prohibitions against begging from the medians. For instance, she said, The New Mexican’s vendors use those same medians to sell newspapers.
“In general, it’s an ordinance against poverty,” Cardona said.