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ACLU scrutiny, Supreme Court decision lead city to suspend most of its panhandling laws

       The rights of people to distance themselves from aggressive public beggars took a hit this fall with Colorado Springs City Attorney's Office directives to City Police, suspending most of its panhandling restrictions indefinitely.
       These include city laws that had fallen under the definition of “aggressive solicitation.” Among these were restrictions against panhandlers continuing to ask for money after being turned down; following people who've said no even as they walk away; or seeking handouts at ATMs, sidewalk cafes, bus stops, street medians, cars as they're being parked or entrances to businesses.
       “I really worry about how this is going to affect our residents,” said Welling Clark, president of the Organization of Westside Neighbors (OWN) and leader of
A panhandler silently holds up a sign appealing for assistance from motorists at the I-25 southbound off-ramp at Cimarron Street. Such behavior had also been legal in the city previously, in keeping with court rulings about constitutional rights. But now, with the city having suspended most of its panhandling laws, non-passive panhandling at interstate on-ramps or off-ramps is also being allowed - including waving signs or making repeated verbal requests.
Westside Pioneer photo
the ad hoc Avenue Task Force (ATF), both of which seek increased vitality for neighborhoods and businesses. “We have the second highest number of elderly residents in the city. What about these people's safety? If you're a law-abiding citizen, you're being punished.”
       Based on various information sources, the impasse stemmed from two separate, recent actions:
       - A U.S. Supreme Court ruling in June on a case that on its face had nothing to do with panhandling but whose implications are being felt nationwide.
       - A September letter from Mark Silverstein, legal director of the Denver American Civil Liberties Union (ACLU), charging that the city has illegally prosecuted numerous people for what's known as “passive solicitation" and demanding changes.
       In response to the above, City Attorney Wynetta Massey has suspended an entire section of the City Code that restricted all but passive panhandling - Solicitation on or Near Street or Highway: 10.18.112 - as well as the better part of Solicitation Prohibited: 9.2.111, including part of the "aggresive" panhandling definition and restrictions on the type of begging that's active without being aggressive.
       According to Lieutenant Jeff Jensen of the Police Department's Gold Hill Substation, police have been meeting regularly with city lawyers to resolve the issue of the suspended laws “so we can provide direction to our officers” as to future enforcement. In a September letter (in response to Silverstein's), Massey states that her office will be “drafting amendments to the city's solicitation ordinances for consideration by City Council.”
       Jensen, whose role in such meetings is to be a “liaison” for the Police Department, could only guess how long that effort will take. “We're hopeful that we'll have some new direction by next month,” he said.
       Whatever comes of the city review process, the police lieutenant hopes that one result will be better education of the public. Even before the suspensions, a major misunderstanding has been what's actually restricted under the city's solicitation laws. For example, three years ago, City Council approved a restriction under 9.2.111 stating that no one could "solicit within 20 feet of an entrance to a building." But this only banned active panhandlers - people moving around or asking for money. Based on court interpretations of free-speech rights, people can be almost anywhere in public if they are just "passively standing or sitting with a sign" (a quote from 9.2.111 that exempts such activity from the city's definition of "soliciting").
       "It's [the definition confusion] a thing that's caused some issues," Jensen said. "It's created expectations that some enforcement would occur.
Above is a photocopy showing the opening paragraph of the September letter to City Attorney Wynetta Massey from Mark Silverstein, legal director of the Denver American Civil Liberties Union.
Courtesy of Mark Silverstein
People say to us, 'You're not doing your job,' but we can't do anything about it."
       What's happening now with the ordinance suspensions is that active panhandling is being allowed where only the "passive" type had once been OK. Also, there are fewer restrictions on how aggressive such people can be. (A list is provided at the end of this article).
       In addition, the city has suspended a separate law that formerly had the effect of keeping any type of panhandlers off road medians, according to Jensen.
       The situation has been evolving. Massey has issued three separate directives to police since September. The first was a “bulletin” suspending several ordinances; the other two added more codes to that list, Jensen said.
       He did offer consolation to citizens who might have safety concerns. He said police in some cases can call on other city ordinances. For example, stipulations under Harassment: 9.2.107 could apply if anyone is followed by other people (such as panhandlers) or insulted “in a manner likely to provoke a violent or disorderly response.”
Above is a photocopy showing the opening paragraph of the September letter from City Attorney Wynetta Massey to Mark Silverstein, legal director of the Denver American Civil Liberties Union.
Courtesy of the City of Colorado Springs

       A September letter from Massey to Silverstein thanks him for submtting the “ACLU's concerns.” At the same time, her letter does not agree with the ACLU lawyer's written assertion that the city's legal system had been “targeting” panhandlers (repeatedly described in his letter as “impoverished” and/or “homeless”) and states that the city “had no knowledge of any improper application of its solicitation ordinances.”
       Supporting that position, Jensen said that city police have always been aware of the difference between "passive" and other types of panhandling and the related legal rights.
       However, the city attorney's letter does leave open the possibility that the “scope [of the solicitation laws] may have been misunderstood” by police, and she shares city plans to educate officers about the redefined enforcement.
       In addition to demanding that police stop enforcing 9.2.111 and 10.18.112 "against passive solictors," Silverstein's letter calls on the city to dismiss any related, pending cases and to “reverse any convictions and rescind any sentences” that have already occurred.
       Massey's letter pledges, in response, that the city will review such cases but that it is a “time-consuming process.”
       The Pioneer asked Silverstein if the effect of the ACLU's involvement might not be to incentivize panhandling and whether that's healthy for the community. He responded that it's the city's fault for writing its laws poorly and that citizens in general will be better off with the city now taking “pains to comply with the First Amendment.”
       As for people with concerns about public safety because of the laws being suspended, Silverstein said, “If folks are engaging in conduct that poses a danger, I would hope that the city's law enforcement is equipped to handle that.”
       The Supreme Court ruling is titled Reed vs. Gilbert. The case involved a church that sued the city of Gilbert, Arizona, because the church felt it was being singled out by the city in restricting its directional signage in the public right of way.
       But the case has had nationwide legal fallout. Cities now face problems if they have laws singling out panhandlers. “This and other recent federal decisions call into question any ordinances that restrict First Amendment expression based on the content of that speech, such as an ordinance defining solicitation as 'a request, whether by spoken words, bodily gestures, written signs or other means, for a gift of money or other thing of value' similar to the language found in City Codes 9.2.111 and 10.18.112,” states an Oct. 28 e-mail from Massey to Welling Clark.
       Lt. Jensen further noted, in comments to a recent meeting of the Avenue Task Force, that several cities have lost expensive lawsuits with similar ordinances, so Colorado Springs is being
In a photo from last March, Lieutenant Jeff Jensen (left) and Commander Rafael Cintron of the Colorado Springs Police Department's Gold Hill Substation discuss local police work at the Organization of Westside Neighbors' annual Town Hall meeting.
Westside Pioneer file photo
particularly cautious about which ones it wants to leave on the books, at least for the time being.
       The following stipulations/definitions from the city's two solicitation codes are currently suspended (not being enforced), according to Jensen.
       SOLICITATION PROHIBITED: 9.2.111:
       It shall be unlawful for any person to (1.) Engage in aggressive soliciting in any public place. 'Aggressive solicitation' is defined as:
       1.a. Continuing to solicit from a person after the person has given a negative response to the soliciting.
       1.e. Persisting in closely following or approaching the person being solicited and continuing to solicit after the person has informed the solicitor by words or conduct that the person does not want to be solicited or does not want to give money or any thing of value to the solicitor.
       1.g. Soliciting money from anyone who is waiting in line for tickets, for entry to a building or for another purpose.
       1.h. Approaching or following a person for solicitation as part of a group of two (2) or more persons, in a manner and with conduct, words, or gestures intended or likely to cause a reasonable person to fear imminent bodily harm or damage to or loss of property or otherwise to be intimidated into giving money or other thing of value.
       3. Solicit within twenty feet (20') of any automated teller machine. Provided, however, that when an automated teller machine is located within an automated teller machine facility, the distance shall be measured from the entrance or exit of the facility.
       4. Solicit in or upon any public transportation vehicle or public transportation facility within or at any bus stop or in any parking lot, structure or other parking facility.
       5. Solicit within twenty feet (20') of an entrance to a building.
       6. Solicit any person entering or exiting a parked motor vehicle or in a motor vehicle stopped on the street.
       7. Solicit any person located within the patio or sidewalk area of a retail business establishment that serves food and/or drink.
       8. Solicit after dark, which shall mean one-half (1/2) hour after sunset until one- half (1/2) hour before sunrise.”

       SOLICITATION ON OR NEAR STREET OR HIGHWAY: 10.18.112:
       A. The purpose of this section is to prevent dangers to persons and property, to prevent traffic delays, and to avoid interference with traffic flow. Roadways that have center medians often are designed to handle specific traffic flow problems. Any delay or distraction may interfere with traffic planning. Sometimes persons stand near intersections and near traffic lights to contact drivers or passengers in cars that are passing or that are stopped temporarily due to traffic lights.
       B. It shall be unlawful for any person to solicit or attempt to solicit, as that term is used in section 9.2.111 of this Code, from the occupant of any vehicle traveling upon any street or highway when the solicitation:
       1. Causes the person performing the activity to enter onto the traveled portion of a street or highway.
       2. Involves the person performing the activity to be located upon any median area which separates traffic lanes for vehicular travel in opposite directions.
       3. The person performing the activity is located such that vehicles cannot move into a legal parking area to safely conduct the transaction.
       C. It shall be unlawful for any person to solicit or attempt to solicit, as that term is used in section 9.2.111 of this Code, from the occupant of any vehicle on any highway included in the interstate system or other U.S. Department of Transportation Federal Highway Administration National Highway System Route, including any entrance to or exit from the highway or other National Highway System Route.
       D. For purposes of this section, the traveled portion of the street or highway shall mean that portion of the road normally used by moving motor vehicle traffic. (Ord. 99-165; Ord. 01-42; Ord. 12-101)

Westside Pioneer article
(Posted 10/29/15; updated 10/30/15 Community: Ongoing Issues)

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