Panhandlers & Homeless Sue Flagstaff Police

PRESCOTT, Ariz. (CN) - Flagstaff police used an unconstitutional Arizona law to arrest a 77-year-old disabled Hopi woman and "hundreds" of others for panhandling, people claim in Federal Court.

Flagstaff resurrected a little-used law against being "present in a public place to beg" to justify "Operation 40," a clampdown on loitering and panhandling in the downtown tourist district that began in 2008 and continues today, according to the lawsuit.

"Hundreds have been arrested for using their constitutionally protected right to ask persons for money in a non-aggressive manner, whether orally or by holding a sign," the complaint states. "Defendants' policy and arrest practices are well known, and have predictably chilled plaintiffs and others from exercising their constitutionally protected rights of speech."

Lead plaintiff Marlene Baldwin sued Flagstaff's City Attorney Michelle D'Andrea, Police Chief Kevin Treadway, and Arizona Attorney General Tom Horne. Two other people joined as plaintiffs, as did the group Food Not Bombs.

Flagstaff have arrested 135 people in the past year for "loitering to beg," according to the complaint.

Among them was lead plaintiff Baldwin, a 4-foot-8-inch, disabled Hopi woman, who was arrested in February.

Baldwin spent a night in jail after asking an undercover police officer for $1.25 for bus fare. The charge was dismissed without prejudice.

Baldwin's attorneys, with the ACLU, claim that the statute, A.R.S. §13-2905(A)(3), is overbroad, violates free speech and should be permanently enjoined.

"On its face it prohibits constitutionally protected speech; arrests have been made in Flagstaff as soon as an undercover police officer hears a person asking for money, even for an amount of one or two dollars to buy food," the complaint states. "The statute is not limited in any manner, and covers requests made in any public area and at any time of the day or night. Aggressive or disruptive conduct is not a required element of this provision. This state law is directed at constitutionally protected expression and chills the exercise of this fundamental right, and should be enjoined by this court on its face."

The other two individual plaintiffs are homeless men.

Food Not Bombs, an unincorporated Flagstaff charity, claims that "aggressive enforcement" of the law has left some of it members too scared to help.

"FNB members have become hesitant to participate in organizational activities and services due to the regular presence of police officers on the periphery of the feeding site and to the awareness that Flagstaff is arresting and prosecuting persons for asking for donations for food," according to the complaint. "FNB members who have experienced threats about and arrests for begging are particularly reluctant to enter into, and participate in activities in, areas with a Flagstaff Police department presence. As a result, FNB has experienced a loss of membership and a reduction in its capacity to serve the poor and hungry in Flagstaff."

The plaintiffs want enforcement of the law permanently enjoined as unconstitutional.

They are represented by Daniel Pochoda with of the ACLU Foundation of Arizona in Phoenix and Mikkel Jordahl of Flagstaff.

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