Federal judge: Arkansas loitering law can't bar begging

Kenny Foskitt asks for donations Tuesday as traffic passes by on the northbound exit of Interstate 49 near West Sunset Avenue in Springdale.
Kenny Foskitt asks for donations Tuesday as traffic passes by on the northbound exit of Interstate 49 near West Sunset Avenue in Springdale.

A section of the state's loitering law that forbids begging for money, food or other charity violates the First Amendment, a federal judge said Tuesday in granting temporary and permanent injunctions forbidding its enforcement.

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NWA Democrat-Gazette

Mike Mataka of Springdale stands at the top of the southbound Interstate 49 on-ramp at Monroe Avenue on Tuesday in Lowell. Mataka said he’s been arrested and jailed 28 times for displaying a sign at intersections.

The ruling by U.S. District Judge Billy Roy Wilson was a win for the American Civil Liberties Union of Arkansas, which filed a lawsuit Oct. 24 on behalf of two Arkansas men -- one a disabled veteran, one homeless -- who had been cited for violating Section (a)(3) of Arkansas Code 5-17-213 and had said they feared further arrest if they continued to beg.

The section in question has made it illegal for more than 30 years for a person to "linger or remain in a public place or on the premises of another for the purpose of begging."

Other sections of the loitering law outlaw lingering or prowling "under circumstances that warrant alarm or concern for the safety of persons or property in the vicinity" if the person refuses to identify himself or give police a "reasonably credible account" of his presence and purpose; in or near a school building without having a custodial interest or responsibility for a student; for the purpose of illegal gambling; for the purpose of drug dealing; for the purpose of buying, distributing or consuming an alcoholic beverage; to spy on someone or invade their privacy; or near an off-site customer-bank communication terminal without any legitimate purpose.

Wilson didn't invalidate those other sections of the law although Bettina Brownstein, an attorney for the ACLU who is representing the plaintiffs for free, said in a hearing Tuesday that the group believes that the entire law is unconstitutional.

Initially, the ACLU objected to Assistant Attorney General Colin Jorgensen's request that Wilson simply sever Section (a)(3) from the rest of the law, allowing the rest of the law to stand. But after Wilson said he intended to grant the injunctions -- except that he was "left with an unquiet mind" on whether he could sever one part from the rest, indicating he wouldn't be able to rule on the case until attorneys filed written briefs -- Brownstein dropped her objections on the severability issue.

Jorgensen argued that he wasn't aware of anybody in Arkansas being forced to pay a fine or serve time in jail for peaceful begging, and asked the judge to allow the Arkansas courts to interpret the section and narrow it if necessary to ensure it's constitutional.

But Wilson seemed unsure about Jorgensen's statement without any statistics to back it up. He asked, "How can we assume there haven't been any convictions under the statute?"

Jorgensen replied that under the law, anyone charged with a crime is entitled to an attorney, even if unable to pay for representation, and an attorney could raise a constitutional challenge to such an arrest. He conceded, however, that not every appointed attorney would know to raise the challenge on behalf of a client charged under the section, which he agreed was unconstitutional.

In the case at hand, both plaintiffs eventually saw the charges against them thrown out, but the ACLU argued that there is no way to know how many people, especially those who lack awareness of their rights and how the court system works, may have been convicted and either fined or jailed for violating the section.

Even with the begging section of the loitering statute declared unconstitutional and unenforceable, Brownstein said municipalities across the state have widely varying ordinances with similar language, and arrests for begging under those ordinances will probably continue, depending on how the ordinances are written. She said the ACLU will get the word out to municipalities in light of Wilson's decision and hope that any local ordinances are adjusted accordingly, but it will likely take separate lawsuits to address the individual ordinances.

In the state's largest city, concerns over the years about panhandlers have led many members of the Little Rock Board of Directors to push for an "aggressive begging ordinance," City Attorney Tom Carpenter said Tuesday. He said constitutional concerns have prompted him to fight against the efforts and recommend that law enforcement officers simply look to the state loitering statute for guidance.

Carpenter hadn't seen Wilson's order when he talked to a reporter Tuesday, but he said the city has tried to distinguish between speech and conduct when a loitering issue arises.

After examining complaints, he said, "We concluded we could stop the solicitation in medians," which focuses on conduct rather than speech. He said a current ordinance forbids solicitation in medians, which are generally in high-traffic areas, but at some point the city "may need to narrow the scope" of the ordinance.

He said he "keeps watching" for rulings that clarify the situation.

Under a U.S. Supreme Court decision handed down in 2000, any law that regulates speech on the basis of its content must be narrowly tailored to promote a compelling government interest in order to be constitutional.

Wilson cited that case law in a written order Tuesday, saying, "Banning begging in all places, at all times, by all people, in all ways does not come close to chinning this bar. Arkansas's anti-begging law infringes on the freedom of speech guaranteed under the First Amendment to the Federal Constitution."

Wilson cited the "chilling effect" of the plaintiffs' experiences in disagreeing with Jorgensen that they lack standing, or a sufficient legal stake in the matter, to pursue the case. Jorgensen argued that both men lacked standing because they were no longer being prosecuted for begging.

In 2015, plaintiff Michael Andrew Rodgers, a disabled veteran in Garland County, was arrested once and cited four times for violating the section. He was jailed, tried and assessed court fines and fees, according to the lawsuit. But one charge was dismissed by the prosecuting attorney, and, through Brownstein, he successfully appealed his Garland County District Court convictions to Garland County Circuit Court.

There, Circuit Judge Homer Wright determined on appeal that the section was unconstitutional because it prohibits speech on the basis of content -- requests for money. But the state didn't appeal, leaving the issue undecided by the Arkansas Supreme Court and unchanged in state law books.

The lawsuit said that while Rodgers was freed by Wright's decision to lawfully solicit money in Garland County, the law remained in effect in other parts of the state, making him "afraid to risk further criminal charges against him." Because of that fear, the suit said, Rodgers has refrained from begging outside Garland County, resulting in the law having a "direct and chilling effect on his right to freedom of speech."

The lawsuit said Glynn Dilbeck, who is homeless, was cited by a state trooper in September 2015 for holding up a sign asking for money at an interstate exit in Benton County, but the prosecuting attorney dismissed the charge. The lawsuit said that despite the prosecutor recognizing the flaws with the section of the loitering statute and dropping the case, Dilbeck was still "harassed for peacefully begging on more than one occasion by law enforcement officers, including the Arkansas State Police," leaving him also in fear of continuing to beg as he desires.

The lawsuit named Arkansas State Police Director Bill Bryant as its sole defendant, saying the state police "regularly issue citations throughout the state" for violations of the section of the law.

Jorgensen asked Wilson to abstain from deciding the case to let the Arkansas Supreme Court have a chance to interpret the troublesome section of law "in a narrow way that avoids constitutional concerns."

Wilson wrote that while federal courts should defer to state courts if a narrow construction by state courts may avoid constitutional concerns, in this case, "even assuming the Arkansas Supreme Court might someday be presented an opportunity to interpret this statute, I can imagine no interpretation shy of metaphysical contortions that would save the anti-begging law from constitutional concerns. Accordingly, I decline to abstain."

Holly Dickson, legal director of the ACLU of Arkansas, said after the hearing, "This law defied the letter and spirit of the Constitution by singling out this particular speech and making it a crime to be poor and ask for help. We are relieved that those who are down on their luck should no longer face prosecution, jail and fines simply for asking for help."

A Section on 11/23/2016

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