ACLU Fights Boise Panhandling Law

     BOISE, Idaho (CN) – Boise enacted an unconstitutional ordinance that prohibits “aggressive solicitation,” and “interference with pedestrians,” the ACLU claims in Federal Court.
     Boise enacted the law in September. It prohibits aggressive solicitation in certain public places, including with 20 feet of ATM machines or of entrances to financial institutions, sidewalk cafes, public restrooms, bus stops other places.
     (See ordinance, at the end of this article.)
     The law defines aggressive panhandling as standing in a public place, or approaching people walking by or driving by in cars, and asking for money or “things of value.”
     The ACLU claims the law is overbroad and affects other activities, such as soliciting donations in support of specific causes, as the ACLU does, or playing musical instruments in return for coins dropped in a guitar case.
     The ACLU, a nonprofit “whose mission is to advance civil liberties and civil rights in Idaho,” claims it will find its mission more difficult to accomplish if the law is allowed to take affect on Jan. 2, 2014, as scheduled.
     “The ACLU relies on private donations of money and other things of value to carry out [its] mission,” the complaint states. “To comply with the City of Boise’s new anti-solicitation ordinance would require the ACLU to significantly alter its solicitation activities and to plan both the substance and location of its speech.”
     Larry Shanks, one of two individual plaintiffs in the lawsuit, is a disabled woodworker who plays the guitar. He subsists on Social Security benefits and lives in his camper.
     “The new anti-solicitation ordinance will substantially restrict where he can perform, how he can perform and what he says and does whenever he is performing his music in public places in Boise,” according to the complaint.
     The other individual plaintiff, Troy Minton, asks for gas money on streets and sidewalks, so he can drive to jobs he gets through temp agencies.
     Minton says he wants to enroll in college to study Fire Science and Management and become a firefighter. He says the new law could make that harder for him.
     The law does have exceptions to its prohibitions: “This ordinance shall not be construed to prohibit solicitation that is limited to passively standing on the public sidewalk or plaza or sitting on a sidewalk bench or plaza bench with a sign or other written indication that one is seeking donations without orally addressing the request to any specific person. This ordinance does not prohibit lawful exercise of one’s constitutional right to picket, protest, or stand on the sidewalk even when doing so makes passage less convenient for others having to walk around the person picketing, protesting, or standing.”
     Nonetheless, the ACLU claims the law violates the First Amendment.
     “Public streets, sidewalks and parks have long been held, by the U.S. Supreme Court and other federal courts, to be the quintessential traditional public forums for speech,” the ACLU says in its complaint. “The ordinance expands and builds upon an official city campaign to discourage people from requesting immediate donations of money in public places in Boise, and to discourage people from giving money who make those requests.”
     The campaign is called “Have a Heart, Give Smart” and encourages good Samaritans to give to particular charities.
     “A city spokesman also acknowledged to the press, when the ordinance proposal was first advanced, that the city is ‘trying to divert all those funds that would go to panhandling,’ or words to the effect,” the complaint states.
     The ACLU complaint adds: “(J)ust days before the city adopted the ordinance, councilman David Eberle told the press, concerning the ordinance and in these or similar words, that ‘[w]e’ll see what the courts say,’ and that ‘[y]ou don’t make progress in this world without a lawsuit or two.'”
     An after-hours call to the ACLU’s attorney was not immediately returned.
     The ACLU seeks declaratory judgment that the law is unconstitutional, and an injunction preventing it from taking affect.
     The ACLU of Idaho is represented by staff attorney Richard Alan Eppink.
     Here is the ordinance, taken from the ACLU lawsuit:
     “AN ORDINANCE REPEALING BOISE CITY CODE TITLE 6, CHAPTER 1, SECTION
     7, ENTITLED AGGRESSIVE SOLICITATION; INTERFERENCE WITH
     PEDESTRIANS AND ENACTING A NEW ORDINANCE UNDER TITLE 6, CHAPTER
     1, SECTION 7, ENTITLED PUBLIC SOLICITATION; PROVIDING DEFINITIONS
     FOR KEY TERMS; PROHIBITING SOLICITATION IN AN AGGRESSIVE MANNER
     AND PROHIBITING SOLICITATION IN ANY PUBLIC TRANSPORTATION
     VEHICLE, FROM PERSONS WAITING IN LINE, ON PRIVATE PROPERTY POSTED
     “SOLICITATION PROHIBITED,” FROM ANY ROADWAY OR PARKWAY OR
     FROM A VEHICLE ON THE ROADWAY WHEN ENTERING THE ROADWAY IS
     NECESSARY TO ACCEPT THE DONATION, FROM PEDESTRIANS CROSSING THE
     ROADWAY, AND WITHIN PUBLIC PARKING GARAGES; PROHIBITING
     SOLICITATION WITHIN TWENTY FEET OF AN AUTOMATED TELLER MACHINE
     OR ENTRANCES TO FINANCIAL INSTITUTIONS, A SIDEWALK CAFÉ, MOBILE
     OR STREET VENDOR ON A PUBLIC SIDEWALK, PUBLIC RESTROOM
     FACILITIES AND PORTABLE TOILETS, BUS STOPS, TAXI STANDS, AND VALET
     STATIONS, AND PARKING PAY BOXES OR STATIONS; PROVIDING EXCEPTIONS FOR PASSIVE STANDING ON THE SIDEWALK OR LAWFULLY SITTING WITH A
     SIGN OR OTHER WRITTEN REQUEST FOR DONATIONS WITHOUT ORALLY
     ADDRESSING ANY SPECIFIC PERSON AND FOR OTHER FIRST AMENDMENT
     ACTIVITY, INCLUDING PICKETING, PROTESTING, OR STANDING, THAT MAY
     MAKE SIDEWALK PASSAGE LESS CONVENIENT; PROVIDING AN INFRACTION
     FOR A FIRST OFFENSE, OTHER THAN AGGRESSIVE SOLICITATION, IN ONE
     YEAR WITH AGGRESSIVE SOLICITATION AND ANY OTHER SECOND PUBLIC
     SOLICITATION OFFENSE BEING A MISDEMEANOR; ENACTING A NEW
     SECTION 22, IN TITLE 6, CHAPTER 1, ENTITLED SEVERABILITY CLAUSE;
     APPROVING A SUMMARY OF THE ORDINANCE; AND PROVIDING AN
     EFFECTIVE DATE OF JANUARY 2, 2014.
     This Ordinance repeals the existing Aggressive Solicitation; Interference with Pedestrians Ordinance in Boise City Code at Title 6, Chapter 01, Section 07 and re-enacts a new ordinance at Title 6, Chapter 01, Section 07 to be known as the Public Solicitation Ordinance. The ordinance provides definitions for “aggressive manner,” “open public area,” “parkway,” “plaza,” “public sidewalk,” “roadway,” and “solicit” or “solicitation.” Aggressive solicitation is specifically defined to include any solicitation accompanied by intentionally making any non-consensual physical contact with another person, following the person being solicited with intent to intimidate into giving, continuing to solicit within five feet of a person who has expressed a negative response to the solicitation with intent to intimidate into giving, obstructing the safe or free passage of the person being solicited, or make any threatening statement or gesture intended to intimidate the person into giving. “Solicit” or “solicitation” is defined to mean to request, ask or beg, whether by words, bodily gestures, signs, or other means, for an immediate donation of money or other thing of value, including the purchase of an item or service for an amount far exceeding its value, under circumstances where a reasonable person would understand that the purchase is a donation. The Ordinance prohibits solicitation in an aggressive manner, in any public transportation vehicle, from persons waiting in line, on private property posted “solicitation prohibited,” from any roadway or parkway or from a vehicle on the roadway when entering the roadway is necessary to accept the donation, from pedestrians crossing the roadway, and within public parking garages. The Ordinance prohibits solicitation when within twenty feet of an automated teller machine or entrances to financial institutions, a sidewalk café, mobile or street vendor on a public sidewalk, public restroom facilities and portable toilets, bus stops, taxi stands, and valet stations, and parking pay boxes or stations (but not including parking meters serving no more than two spaces). The Ordinance provides exceptions for passive standing on the sidewalk or lawfully sitting with a sign or other written request for donations without orally addressing any specific person. The Ordinance does not apply to other first amendment activity, including picketing, protesting, or standing, that may make sidewalk passage less convenient. The Ordinance provides infraction penalties for initial violations, other than aggressive solicitation, and misdemeanor violations for aggressive solicitation and any other second public solicitation offense with one year. The Ordinance includes a severability clause. The Ordinance approves this summary of the ordinance and providing an effective date of January 2, 2014.”

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