Federal challenge brought against panhandling law

A Hot Springs man arrested for loitering in 2015 filed a federal lawsuit Tuesday to prevent the city from enforcing the ordinance it adopted in response to his loitering conviction being overturned on appeal.

Michael Rodgers filed suit against Jason Stachey in his official capacity as police chief Tuesday to stop the enforcement of the ordinance the Hot Springs Board of Directors adopted in September to stop panhandlers from soliciting donations from motorists. The suit also asks that the ordinance be declared unconstitutional.

Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, said the police department has threatened to arrest Rodgers for violating the ordinance, calling the threats an attempt to stifle his free-speech rights. ACLU-sponsored attorneys Bettina Brownstein, of Little Rock, and Monzer Mansour, of Fayetteville, are representing Rodgers.

“Hot Springs police have informed (Rodgers) that if he dared to panhandle in Hot Springs he would be sent to jail,” the complaint said. “He is not alone. Many others also suffer this game government persecution and prosecution for their speech.”

The city cited public safety as the rationale behind the ordinance banning sitting, standing, walking or entering a “roadway, median or portion of a public street” for the purpose of soliciting any item, including money, from the occupant of a vehicle.

The complaint said limiting free speech is the actual intent of the ordinance, calling it a “content-based restriction.”

“It singles out solicitation and not other forms of speech,” Dickson said. “When you single out solicitation or asking for money or panhandling and not other forms of speech, that’s content based. (The ordinance) doesn’t address campaigning or advertising. The ordinance says ‘solicitation.’ It’s limited to that and no other form of speech.”

Rodgers was arrested Oct. 15, 2015, and convicted in Hot Springs District Court the following January. Division 1 Circuit Judge John Homer Wright overturned the conviction on appeal last June, ruling that the state’s loitering statute was unconstitutional in light of begging being a “constitutionally protected form of speech because it involves the communication of information, dissemination or the advocacy of causes.”

U.S. District Judge Billy Roy Wilson issued a permanent injunction against the state statute in November on similar grounds, decreeing the law was an infringement “on the freedom of speech guaranteed under the First Amendment to the Federal Constitution.”

Act 847 adopted during the 2017 regular session of the Legislature amended the loitering statute, striking “public place” as a prohibited location for loitering and replacing it with “sidewalk, roadway, public right of way, public parking lot or public transportation vehicle or facility and pubic place.”

Language was also added that prohibits solicitation done in a “harassing or threatening manner or in a way likely to cause alarm to the other person.” The new law also prohibits solicitation that creates a “traffic hazard or impediment.”

Dickson said the ACLU plans to challenge the amended statute later this summer.