SAN FRANCISCO (CN) — A musician and his dog Boots on Thursday made Eureka, California, the latest battleground in the fight over anti-panhandling laws, which a number of courts have struck down as unconstitutional.
Eureka, pop. 28,000, is the seat of rugged Humboldt County and the biggest city between San Francisco and Portland, Oregon. Situated on coastal Route 101 and Humboldt Bay, the largest deep-water port between San Francisco and Coos Bay, Oregon, the entire city is a state historic landmark, known for its Victorian houses.
The City Council in March passed an ordinance outlawing begging for money near banks or ATMs, gas stations, median strips, public transit stops, intersections with traffic signals and entryways to shopping centers.
Oscar Leatherman, a 63-year-old musician who lives in a van with Boots, a chihuahua-Jack Russell mix, sued the city in Federal Court, claiming the law violates his First Amendment rights by barring him from holding a sign on a public sidewalk.
“Mr. Leatherman never verbally requests a donation from passersby when busking,” the 21-page complaint states. “Instead, Mr. Leatherman plays music for the public to enjoy while going about their business, and props a sign on his guitar case that reads ‘Good Karma $1.’”
In recent years courts have struck down similar panhandling bans in Colorado, Florida, Illinois and Massachusetts.
Those rulings are based on the 2015 Supreme Court ruling in Reed v. Town of Gilbert, which challenged a town’s limits on how long churches and nonprofits could post signs announcing events.
The Reed ruling expanded the types of free-speech restrictions that must pass stricter scrutiny to survive constitutional challenges, said Tristia Bauman, senior attorney for the National Law Center on Homelessness & Poverty, of Washington, D.C.
“Reed v. Gilbert clarified that viewpoint restriction is one type of content-based restriction on speech, but not the only type,” Bauman said. “When a restriction looks different based on the content of speech, even when there is no viewpoint restriction, it is content-based and must satisfy strict scrutiny.”
To survive strict scrutiny, the government must show it has a compelling interest in limiting a particular type of speech, a hurdle many municipalities have failed to overcome, Bauman said.
“Often these laws are passed in response to complaints about panhandling,” she said. “The discomfort someone feels when being asked for money is certainly not a compelling interest to restrict First Amendment freedoms.”
When the Eureka City Council passed its anti-panhandling law in March, it cited an “increase in aggressive solicitation throughout the city” that “has become disturbing and disruptive to residents and businesses.” It claimed that panhandling had contributed to a “loss of access and enjoyment of places open to the public” and created “an enhanced sense of fear, intimidation and disorder.”
Bauman suggested that reasoning is unlikely to satisfy the compelling-interest requirement for strict scrutiny.
Eureka City Attorney Cyndy Day-Wilson declined to comment Thursday, saying the city had not been served with the lawsuit.
But before the panhandling ban became law, Day-Wilson recommended in a report that the City Council adopt the restrictions “to address ongoing issues regarding the safety and welfare of the public.”
The Seventh Circuit was the first U.S. appeals court to apply Reed to anti-panhandling laws, in 2015, striking down a ban on begging for money in certain parts of Springfield, Illinois. Since then courts have struck down anti-panhandling laws in Grand Junction, Colorado; Worchester, Massachusetts; and Tampa, Florida, and elsewhere.
Despite cities’ poor record on fighting legal challenges against these bans in recent years, Bauman says cities continue to enact them due to pressure from business and homeowner groups, especially as rising housing costs make homelessness more visible in urban areas.
But she said laws that criminalize panhandling and homelessness are often shortsighted, waste valuable taxpayer money and fail to address the causes of homelessness.
“In the process of enforcing these restrictions that implicate some of the strongest rights that we have under the U.S. Constitution, they fail to address the underlying causes of that expression and throw millions of dollars down the drain,” she said.
Leatherman, who has been busking in Eureka for three years, says he receives a meager Social Security retirement income and $16 a month in food stamps. He says he depends on donations to survive and take care of his dog, Boots.
After the ordinance was passed, Leatherman says, a police officer threatened to arrest him and impound Boots because he was seeking donations near the driveway to a natural foods market. The officer wrote him a citation, which made local news. Leatherman told the North Coast Journal that a passerby gave him $20 as the officer wrote him the ticket.
He is represented by Shelley Mack with Martin & Mack in Arcata.
Eureka was sued last year for evicting more than 150 people from an established homeless encampment at a city-owned wetland and park called Palco Marsh, where some people had lived for 15 years. Leatherman was not a party to that lawsuit. In April this year a federal judge ruled the city did not violate the Constitution by forcing the campers to vacate to make way for a multimillion-dollar trail project.
Humboldt County’s homeless population has dropped from 1,180 to 668 in the past two years, according to a February survey by the county Department of Health and Human Services and Humboldt Housing and Homelessness Coalition. But some critics said many homeless people were not counted in this year’s survey, according to a May 2017 report by the Eureka-Times Standard.
Leatherman claims the ban violates his rights to free speech and equal protection. He seeks a permanent injunction. He has written a song about the brouhaha, called “A Good Chameleon’s Hard to Find (On a Thin Blue Line).”