FORT SMITH -- City directors Tuesday repealed the ordinance that grew out of their attempt to address panhandling after the American Civil Liberties Union called it unconstitutional.
With repeal of ordinance 34-17, Arkansas Municipal League attorney Michael Mosley said he will file a motion in federal court to dismiss the lawsuit filed by a man who claimed the ordinance violated his First Amendment free speech rights by stopping him from panhandling.
Mosley, who represents the city in the lawsuit along with Fort Smith's attorney Colby Roe, recommended directors repeal the city's ordinance and wait to see how a similar lawsuit against Rogers Police Chief Wayne Minor plays out.
Glynn Dilbeck and Shane Cook are plaintiffs in the Minor lawsuit in Rogers. Dilbeck is the sole plaintiff in a similar lawsuit the ACLU filed against Fort Smith Police Chief Nathaniel Clark.
The ACLU, through plaintiffs Michael Rodgers and Todd Reid, is suing Hot Springs Police Chief Jason Stachey over Hot Springs' ordinance. The complaint claims Rodgers' free speech rights were violated because the ordinance didn't allow him to panhandle, and Reid's free speech rights were violated because he wasn't allowed to donate to panhandlers.
Neither Rogers nor Hot Springs plan to repeal their respective ordinances, according to officials.
Even without the ordinance in Fort Smith, Mosley said, the city could rely on state law making it unlawful for people to be in the streets outside of crosswalks or crossing signs.
Contacted Tuesday, Bettina Brownstein of Little Rock -- an ACLU attorney handling the three lawsuits -- said with Fort Smith's ordinance repealed, she couldn't oppose the motion to dismiss the case.
"It was a smart move on Fort Smith's part," Brownstein said. "We think we're going to win on Rogers."
Mosley and attorneys for Rogers and Fort Smith disagree. Rogers' senior staff attorney Jennifer Waymack said the Rogers ordinance is content-neutral, deals with public safety and not panhandling, and doesn't violate Dilbeck or Cook's rights.
"We're in a good place," she said. "We have a good constitutional ordinance."
At least one other city believes in Rogers' ordinance. Van Buren aldermen unanimously passed an ordinance Monday that included wording closely following Rogers' ordinance. Van Buren officials weren't available Tuesday for comment.
Fort Smith passed ordinance 34-17 in July. Dilbeck sued Fort Smith over an earlier panhandling ordinance. He said both ordinances squelched his ability to panhandle and violated his free speech rights.
Ordinance 34-17 didn't mention panhandling or begging. In fact, in passing the ordinance, the city directors also voted to remove the word "begging" from another ordinance.
The ordinance prohibited people from being in the street other than at crosswalks or bus stops, with exceptions made for police, emergency personnel or authorized maintenance workers who have reasons for being in the streets.
Rogers' ordinance, passed Dec. 12, bars anyone from approaching an operating, occupied vehicle in the street in a manner that could cause injury, property damage or impede traffic flow.
Hot Springs' ordinance, passed Dec. 5, forbids people to "interact physically" with the occupant of a motor vehicle in operation. Also, no occupant of a motor vehicle in operation on a public street may "physically interact" with a pedestrian.
Even though none of the ordinances in litigation in federal court mentions panhandling or begging in the texts, Brownstein said Tuesday the ordinances had the intent to punish her clients for panhandling.
"They're not home free just because they don't use the word," she said.
The lawsuits are in various stages of litigation. Mosley filed a response last week to an amended complaint against Stachey in Hot Springs.
Earlier this month, Brownstein filed a motion for summary judgment, seeking a judge's ruling against Minor in Rogers.
Mosley said Tuesday he didn't think the cases would go to trial but judges would decide the cases based on attorneys' briefs.
NW News on 02/28/2018