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Missoula councilors may reconsider panhandling ordinance
panhandling

Missoula councilors may reconsider panhandling ordinance

ACLU of Idaho filed suit against Boise for similar code

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The Missoula City Council may reconsider an ordinance intended to curb panhandling, given last week’s U.S. District Court decision in a lawsuit filed by the American Civil Liberties Union of Idaho.

“It seems responsible, in light of the court decision, to revisit the subject,” said council president Marilyn Marler.

Last month, the council amended chapters of its Public Peace, Morals and Welfare code to prohibit sitting, sleeping or lying in certain places, and to decrease the places where people can legally solicit or panhandle. In 2009, the council made it illegal to ask for money in certain areas – such as within 20 feet of an ATM – and made it unlawful to “aggressively” solicit.

In a detailed letter to Mayor John Engen and in council testimony, the American Civil Liberties Union of Montana opposed the recent ordinance amendments as unconstitutional. On Thursday, the U.S. District Court of Idaho sided mostly with the ACLU in a lawsuit against the city of Boise over a similar ordinance.

“Obviously, it suggests that a constitutional challenge to the Missoula ordinance would be successful,” said Anna Conley, staff attorney for the ACLU of Montana.

On Friday, Councilman Adam Hertz said he requested the Administration and Finance Committee discuss reconsideration on Wednesday, Jan. 8, and possibly take up the motion at the following Monday’s full council meeting. He said the outcome for Boise raises concerns for Missoula.

“I think we ought to go back and take a look at this before we potentially take on a lawsuit from the ACLU that they already have proven essentially they can win,” said Hertz, who supported the amendments but with reservations. “I think that would be a big waste of taxpayer dollars and government resources.”

Mayor Engen said a veto is always an option, but he would prefer the council amend the law to satisfy more parties, if possible. He is in conversation with the ACLU of Montana about ways to move forward that reduce the potential for legal action, but also preserves the intent of the ordinance and its supporters.

“For better or for worse, a decision in Boise doesn’t necessarily mean there will be a similar decision in Montana, but if we can stay out of a courtroom in general, we all have more control over our destinies,” said Engen, whose downtown advisory team suggested the amendments. “So we’ll see if there’s any room for agreement here with the ACLU.”

***

Like the law in Missoula, the ordinance in Boise banned aggressive solicitation and soliciting in certain areas – such as within 20 feet of an ATM or entrance to a bank building. Boise’s regulation did not prohibit sitting, lying and sleeping.

In the lawsuit, the ACLU of Idaho did not challenge the ban on aggressive solicitation, but it successfully argued the prohibition on “non-aggressive solicitations for donations of money or other property” in public areas restricted freedom of speech.

The Boise ordinance limited soliciting in a variety of places, including “in an open public area while a person is waiting in line,” within 20 feet of sidewalk cafes or vendors, or inside parking garages.

“The city does not contest that many of the areas subject to (the ordinance) are places generally publicly owned, free and open to the public,” reads the court order.

And people have the right to ask for money in a public forum, according to the court order: “While the aggressive solicitation prohibition is clearly related to public safety, the restrictions on non-aggressive solicitation do not appear to raise the same public safety governmental interest,” reads the decision, which enjoins the city of Boise from enforcing most of the ordinance until further action from the court. “Business owners and residents simply not liking panhandlers in acknowledged areas does not rise to a significant governmental interest. While the ordinance does leave open the ability to sit or stand passively in a very limited public area with a sign requesting money or property, this is not an ample alternative channel for communication of the information.”

Conley, with the ACLU of Montana, said Missoula is in the same court district as Boise, so a legal challenge to the ordinance here is likely to succeed. She said the Boise solicitation provision is less restrictive than the one in Missoula “because (Boise’s) allows for silently sitting and holding a sign,” but the entire Missoula ordinance needs work.

“It’s not just the amendments that are a problem, but there’s lots of problems to the ordinance,” Conley said.

***

The recent case didn’t address sitting, lying and sleeping, but Conley said others have, including Jones v. the City of Los Angeles.

Los Angeles tried to impose a complete ban on sitting and lying in public spaces, Conley said. She said parties in an ensuing lawsuit settled the case, so the 9th Circuit Court of Appeals vacated the ruling.

However, in its legal analysis, the court concluded the prohibition violated the Eighth Amendment because it is “cruel and unusual punishment” to ban someone from sitting or lying in public, behavior “that’s a necessary consequence of an involuntary or chronic condition such as homelessness,” Conley said.

And even people who have homes might need shelter in public places, she said. For instance, Conley said their homes may be abusive environments or places where others do drugs.

The Missoula ordinance doesn’t ban sitting and lying everywhere, but the limits are so broad they create “a de facto total ban,” Conley said. The rules ban sitting or lying under several circumstances including the following: on any street or alley in the city limits, on a sidewalk within 20 feet of an entrance to a building in the city, and within 20 feet of entrances to tunnels and foot bridges.

So one question is whether there is enough alternative space, especially covered space, Conley said. She said people who need shelter may not always be admitted to the Poverello Center, and other options may not be available, so they may be forced to sit and lie in the rain or snow.

“The other thing to remember is we (in Montana) have a heightened right to freedom from cruel and unusual punishment,” Conley said of the state standard compared to the federal one.

***

The ACLU also argues that Montana law already prohibits every single bad behavior shop owners and others downtown witness. In her letter to the city, Conley cited related statutes, including:

• MCA 45-8-101: It bans disorderly conduct if a person disturbs the peace with actions including quarreling, challenging to a fight, “making loud or unusual noises,” using threatening, profane or abusive language, “rendering the free ingress or egress to public or private places impassable,” and even “creating a hazardous or physically offensive condition by any act that serves no legitimate purpose.”

• MCA 45-8-102 addresses the “failure of disorderly persons to disperse.” “Where two or more persons are engaged in disorderly conduct, a peace officer, judge, or mayor may order the participants to disperse.”

The statutes are in effect in Missoula, but they also have limits.

Police Chief Mike Brady said police rely on those laws in patrolling the community. However, he said sitting against a business wall or sleeping on a sidewalk doesn’t necessarily fit the disorderly conduct definitions.

Many people are intoxicated, so they sit or lie down, sleep, then urinate or defecate on themselves, and police and others downtown have to deal with the situation after the fact, he said. And he said people gathered in one place sitting on the sidewalk can create fear in others, who then will avoid nearby shops.

“Feeling safe is important, and some people don’t feel safe to come downtown,” Brady said.

Another limitation is in the subjective nature of disorder, said city attorney Jim Nugent. For instance, one person’s interpretation of quarreling or making loud noises won’t be the same as the next person’s.

Also, Nugent said the annotations in the law offer important qualifications, including one that states “the behavior must disturb others,” or more than one individual: “It is not sufficient that a single person or very few persons have grounds for complaints.”

***

City Councilwoman Caitlin Copple proposed the ordinance changes in Missoula, but she could not be reached for comment. However, Copple and many other supporters of the ordinance have been strong allies of the ACLU on other matters.

Just three years ago, the ACLU of Montana honored Councilman Dave Strohmaier with a civil liberties award. In this case, Strohmaier said he did not find the ACLU’s legal analysis compelling, but he is interested in seeing the ways Boise’s ordinance compares with Missoula’s.

“It pains me to be on opposite sides of the fence of the ACLU in this particular instance, since I have certainly worked for and supported the causes of the ACLU in the past,” said Strohmaier, an outgoing council member running for the Montana Legislature.

However, he said the ordinance still allows people to panhandle in certain places, albeit areas that might not be prime. In other words, he said panhandling, a form of free speech, still may occur legally in Missoula under the ordinance.

On Monday, four new council members will be sworn into office, and a new collective body of 12 will take up the issue. Councilors Marler and Hertz, whose terms continue, both voted in favor of the ordinance amendments but voiced reservations.

At this point, both anticipate they will support reconsideration given the federal decision. The deadline for doing so is Monday, Jan. 13, so Hertz has requested a committee discussion this Wednesday to consider the merits of opening up the ordinance, approved on Dec. 17 and slated to take effect a month after adoption.

Reconsideration would require ayes from two-thirds of councilors present and voting.

Reach Keila Szpaller at @keilaszpaller, at keila.szpaller@missoulian.com or at (406) 523-5262.

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