City, ACLU working to resolve panhandling suit

The city and American Civil Liberties Union of Arkansas are working to resolve the federal lawsuit challenging the panhandling ordinance the Hot Springs Board of Directors adopted in September, attorneys for both sides said Wednesday.

Holly Dickson, legal director of the ACLU of Arkansas, said Michael Rodgers would drop the lawsuit the ACLU filed on his behalf last month if the city repealed Ordinance 6168, which prohibits panhandlers from soliciting donations from motorists on public streets or roadways.

The complaint ACLU-sponsored attorneys Bettina Brownstein, of Little Rock, and Monzer Mansour, of Fayetteville, filed on Rodgers’ behalf said the Hot Springs Police Department has threatened to arrest him for panhandling. Rodgers, 53, of Hot Springs, was arrested for loitering in October and November of 2015, but Division 1 Circuit Judge John Homer Wright dismissed the convictions in June 2016.

He ruled begging was a constitutionally protected form of speech, making the state loitering statute Rodgers was alleged to have violated unconstitutional. U.S. District Judge Billy Roy Wilson issued a permanent injunction

against the statute in November on the grounds that it restricts the right to free speech under the First Amendment.

An ordinance repealing the panhandling ordinance adopted in September was pulled from the agenda of Tuesday’s special-called board meeting at City Attorney Brian Albright’s request. Albright said Wednesday that the city is working with the ACLU on an “amicable resolution.”

U.S. District Judge Susan Hickey granted the city’s motion Tuesday for more time to respond to Rodgers’ request for a preliminary injunction that would prevent the city from enforcing the ordinance while the case is pending. Hickey’s order gives the city until July 24 to respond.

“That because part of the resolution to this matter might require legislative action by the city of Hot Springs, time is needed to discuss the propriety of such action with plaintiff’s counsel,” said the motion filed Monday by Arkansas Municipal League attorney Michael Mosley, who’s representing the city.

The $2,503 annual service charge the city pays the Municipal League includes legal defense services.

In addition to repealing the panhandling ordinance, the proposed ordinance removed from the agenda of Tuesday’s special-called meeting would prohibit pedestrians from being inside a vehicular right of way, Albright said, noting the prohibition doesn’t target any particular purpose a pedestrian might have for being in the right of way.

The city has said the panhandling ordinance is a safety measure protecting pedestrians and motorists and is not intended to stifle free-speech rights. The ACLU’s pleadings in the Rodgers case argue that the safety rationale is unsupported by data or documented complaints about safety issues related to panhandling, and is instead a means to rid the city of the unwanted public presence of panhandlers.

Dickson said Wednesday the First Amendment is the ACLU’s primary concern. Because freedom of speech is at issue, the ACLU argues the ordinance should be subjected to the most rigorous standard of judicial review.

“We’re working with the counsel for the city to reach an agreement,” Dickson said. “We tried to do that prior to filing the lawsuit but were unable to do so. Our interest is protecting the First Amendment. We don’t want to see people threatened with arrest for things they shouldn’t be arrested for. If we were able to reach an agreement, we’d drop our suit.”

Dickson said the ACLU plans to challenge the amended state loitering statute the Legislature passed earlier this year. It strikes language that prohibited loitering in public places, replacing it with “sidewalk, roadway, public right of way, public parking lot, public transportation vehicle or facility or private place.”