At the Center’s urging, the City of Spokane Valley decides not to follow Spokane’s lead on a “panhandling” ordinance.
If you were a street performer or a civil libertarian, or a person given to asking for pocket change, the slate of ordinances dealing with street-level speech that came before the Spokane City Council last fall was not good news. Pushed to the council by business groups anxious to discourage panhandling on downtown sidewalks, the measures elicited equal amounts of council soul-searching and thorny legal analysis.
“Clearly,” wrote CFJ attorney Bonne Beavers and intern Chris Longman, “the City’s concerns about the impact on begging on economic activity are legitimate. And, just as clearly, the City may regulate this activity, but not in an unequal and unjust manner.”
By the time the council formally voted on the measures most, but not all, of the objectionable provisions had been trimmed, leading Beavers to conclude that even though constitutional problems remained, “overall, it’s a big improvement.”
Among those watching with great interest were council members and other city officials just to the east in the City of Spokane Valley who, perhaps not coincidentally, were being asked by business groups to enact a very similar set of ordinances. And just as the City of Spokane’s attorneys had sought and received analysis from the Center for Justice, the city attorney’s office in the City of Spokane Valley also reached out to the Center to get a legal critique as the measures moved forward.
This time the outcome was different. On Tuesday night, the City of Spokane Valley’s City Council chose not to adopt any of the panhandling measures like those that Spokane had adopted last fall.
If there was a turning point, it came on August 4th when Spokane Valley assistant city attorney Cary Driskell sent a memo to the city council where he reported that “staff recommends not proceeding with consideration of the proposed ordinance.”
Attached to the recommendation was a July 16th analysis from the Center, authored by Bonne Beavers.
This time around, Beavers’s arguments against the measures were supported by a new Federal Appeals Court decision that was handed down in late June. The 9th Circuit decision came in the case of “Magic Mike” Berger v. the City of Seattle, et al., and, as Beavers explained, it provided a much stronger constitutional warning to city’s attempting to restrict speech in situations where people affected by the speech could be considered a “captive audience” and therefore reasonably entitled to more protection from those aiming messages at them, regardless of what the messages are.
In simplest, terms the 9th Circuit, in Berger, clearly sought to limit government rights to restrict speech to situations like patient access to abortion clinics or other medical facilities.
“As the Berger court makes clear,” Beavers wrote, “the captive audience doctrine is an attempt to balance one’s right to be left alone while in public against another’s First Amendment rights. It is doubtful that substantial privacy interests are implicated for those merely filling their gas tanks or emerging from buildings or vehicles, waiting for a ride.”
Beavers reference to filling gas tanks and waiting for rides went directly to the Center’s deepest objection to the measures that Spokane passed last year–namely a new ordinance (C-34340) that sought to keep panhandlers away from people using gas pumps, ATM machines, and other street level activities in which people would be easier targets for a solicitation approach. While Spokane agreed to change some of the language in the original draft, the measure still passed and makes it a misdemeanor to solicit people in such situations.
The Center believed then, and believes even more strongly now in light of Berger, that the Spokane “regulation of solicitation” ordinance (C-34340) is unconstitutional.
But, as the Center’s Chief Catalyst Breean Beggs acknowledges, the Center’s constructive engagement with the City of Spokane and the fact that it didn’t quickly bring suit over the solicitation provision gave rise to an awkward question. Namely, was the Center satisfied with Spokane’s ordinance, and would it be satisfied, and not object, if the City of Spokane Valley replicated it?
The short answer was, no, the Center wasn’t satisfied. The long answer came in Beavers’ s analysis, which the City of Spokane Valley requested before its council voted.
“We weren’t happy with that [the City of Spokane ordinance],” explains Beggs. “but there are three factors as to why we haven’t filed a lawsuit.”
The first, he says, is pretty simple–”we don’t have a client who’s complained about it.”
No client, no lawsuit.
Moreover, Beggs added, the Center thought it would be a better issue for the state chapter of the American Civil Liberties Union (ACLU) to address and, accordingly, forwarded the issue to them for the ACLU’s analysis. Finally, there was the matter of the Berger case which, prior to being acted on by the full panel of 9th circuit judges, left more gray area than there is now as to the defensibility of the Spokane ordinance.
Fortunately, Beggs said, the Center has kept in regular contact with Driskell such that when the panhandler ordinance started to move toward a vote in Spokane Valley, Driskell sought to take the Center’s temperature. And this, he says, led to the invitation for Beavers’s analysis.
Beggs was on hand Tuesday night when the ordinance came before the Spokane Valley council to answer questions, but the Spokane Valley council, he says, was content with Driskell’s advice not to adopt the measure.
In its place, said Beggs, the Spokane Valley council adopted a proposal to create an education program aimed both at businesses affected by panhandling and at people who give money to solicitors, to persuade givers that they can be of greater help to the needy than giving handouts on the street.
“So the proponents of that idea, together with the legal analysis, carried the day,” Beggs said. “To the credit of the Spokane Valley council, they adopted what actually has been found to be a more effective remedy to the panhandling problem, and avoided an unconstitutional ordinance that risked a lawsuit.”
As a followup, Beavers on Thursday sent the City of Spokane a short letter taking note of the decision that the Spokane Valley council make Tuesday night. Attached to the letter, which can be downloaded here, is her July 16th letter to Driskell and his subsequent analysis and recommendation to the Spokane Valley city council.
–CFJ
