The seasonal influx of transients into Durango has spurred vigorous debate about whether the city should impose additional regulations on panhandling, and what the city and county should do about the growing number of homeless encampments on nearby public property.
While resolution of these policy matters falls within the political realm, the debate is necessarily framed by legal considerations. Specifically, how far can the city and county go in regulating panhandling and vagrancy without running afoul of the constitutional rights of those they seek to regulate?
Because an ordinance that limits panhandling is a restriction on free speech, any such ordinance must pass Constitutional muster. Similarly, because anti-vagrancy laws seek to prohibit certain types of activity, they, too, are limited by similar considerations.
This article provides a very basic outline of the constitutional limits to regulating panhandling and vagrancy, and then discusses some of the many types of ordinances that the city and county could pass within that framework. Please note that moral and ethical issues attendant to any regulations discussed are well beyond the scope of this article.
An ordinance aimed at restricting panhandling must be “narrowly tailored to serve the government’s legitimate, content-neutral interest.” Regulating panhandling on a sidewalk is further tempered by the fact that the Supreme Court has held that public sidewalks are among the “quintessential” public forums for free speech. In order to be “narrowly tailored,” the regulation cannot apply to situations in which the government’s interests are not being protected. In order to be “content neutral,” the ordinance cannot limit one type of speech, such as panhandling, but allow other types of speech, such as seeking charitable donations, asking for signatures on a petition or selling lemonade on the sidewalk.
Thus, an ordinance that bars panhandling near any road based on legitimate public safety concerns is not narrowly tailored to achieve that public interest because it would preclude panhandling on an isolated road. In addition, it would not be content neutral because it would allow other forms of speech, such as passing out handbills for political and commercial purposes. Thus, a ban on all panhandling inside the Central Business District would probably fail because it would not be content neutral. But flat bans on all in-person solicitations for immediate payment have been upheld.
Courts have routinely upheld ordinances that prohibit “aggressive panhandling,” such as the one that the Durango adopted.
The city’s ordinance bans the use of threatening, intimidating or coercive gestures or conduct, physical contact during the course of panhandling, obstructing sidewalks or entryways, and the use of obscene gestures and conduct.
This type of regulation is essential because someone who intimidates a person into giving them money is effectively robbing that person. Some courts have struck down ordinances that ban panhandling after sunset and before sunrise, but other courts have allowed such ordinances to stand because being “asked” for a donation at night is inherently more coercive. Similarly, ordinances that bar panhandling at places were the person solicited cannot simply say “no” and walk away, such as bus stops, public transportation or facilities, or in a vehicle on the street, have be upheld because they create coercive situations.
The Supreme Court has held that once a speaker “undertakes the collection of funds” he is subject to reasonable registration and identification requirements. Thus, ordinances that require a panhandler to obtain a permit and display a permit are constitutional and such permits may be premised on having no criminal record over the past several years.
Vagrancy and anti-loitering laws are nearly impossible to draft without running afoul of the constitution because they are inherently vague and do not give adequate notice of what type of behavior is prohibited, and because they encourage arbitrary and discriminatory enforcement.
Nonetheless, according to data collected in 2014 by the National Law Center on Homelessness & Poverty from 187 geographically and demographically diverse cities, 33 percent of the cities have a citywide ban on loitering in public, and 65 percent of them ban loitering in particular public places, which probably focus on central business districts and tourist areas.
In addition, 34 percent of cities have a citywide ban on camping and 57 percent of the cities ban camping in particular public places, effectively creating “no homeless zones.”
Of particular note in light of the recent discussions by our city officials concerning establishing an area as a campground for the homeless, while bans of camping in public places are generally constitutionally permissible, they may be subject to successful challenge if there are insufficient housing or shelter options, because such a ban would effectively criminalize homelessness.
Thus, establishing a campground for the homeless may inoculate the city from a successful legal challenge to a citywide ban on sleeping or camping in public outside the designated homeless campground.
The one practical consideration that the city must weigh is that any ordinance that restricts panhandling or vagrancy will be scrutinized by advocacy groups.
If there is a legal challenge, it will force the city to spend resources, and if the ordinance is struck down on constitutional grounds, the city would have to pay the challenger’s legal fees and costs.
William E. Zimsky is a Durango attorney at Abadie & Schill, P.C. and a volunteer firefighter with the Fort Lewis Mesa Fire Protection District. His opinions are his own.