The city of Durango has stopped enforcing a loitering ordinance after the American Civil Liberties Union of Colorado argued the ordinance is unconstitutional.
Durango Police Chief James Spratlen, in an Oct. 24 memorandum, ordered officers to not arrest suspects or issue tickets for loitering. The policy change came after the ACLU of Colorado contacted city officials to raise questions about the ordinance’s legality.
The ordinance says “it shall be unlawful for any person to loiter for the purpose of begging.”
The civil-liberties organization said playing music on public sidewalks and soliciting donations is protected by the First Amendment.
“The Durango ordinance is far broader than many of the anti-panhandling regulations that courts have struck down in recent years,” Mark Silverstein, legal director for the ACLU of Colorado, said in a Oct. 8 letter to city attorney Dirk Nelson. “The ordinance prohibits peaceful, passive, nonintrusive and nonaggressive requests for assistance, and it applies on public property everywhere in the city. The ordinance is legally indefensible.”
The city of Durango quickly backed down. Spratlen ordered officers not to arrest, issue summons or give warnings based on the loitering ordinance. He said Durango city officials are studying other cities that have altered similar ordinances after court rulings. Until a new ordinance is developed, officers will have to rely on other ordinances to deal with illegal behavior, Spratlen said.
Spratlen and Nelson could not be reached for comment Tuesday.
Local codes that target homeless people are common, Silverstein said. The ACLU is battling Grand Junction in federal district court regarding an anti-solicitation ordinance.
Durango’s ordinance is similar to a now-stricken state statute that prohibited “loitering ... for the purpose of begging.” The ACLU successfully lobbied the state Legislature to repeal the law after filing a class-action lawsuit in 1996.
“There are ordinances of various varieties that seek to make it a crime to panhandle,” Silverstein said Tuesday. “They come in many flavors. This particular flavor is among the most legally vulnerable.”
The city also agreed to dismiss two pending loitering citations, city prosecutor Bill Corwin said. Both are against one defendant, Brian Harwood, 42.
A Herald reporter witnessed Harwood receiving a loitering ticket on Sept. 9. Harwood was ticketed standing in front of Francisco’s Restaurante y Cantina, 619 Main Ave., while holding a sign reading, “Democrat$ and Republican$ use the Constitution as butt wipes.”
At the time, Harwood, who is homeless, said he intended to fight the ticket.
“I know this is unconstitutional,” he said. “This is wrong.”
Corwin said downtown shopkeepers may have to get used to panhandlers.
“Especially the merchants downtown are used to being able to call DPD and say, ‘Hey, I’ve got somebody down here panhandling. Can you get rid of them?’” Corwin said.
Police can still enforce “aggressive panhandling,” he said.
Silverstein said anti-solicitation ordinances can pass muster.
“As an organization, the ACLU doesn’t object to carefully tailored ordinances that restrict coercive or intimidating or threatening forms of solicitation,” he said.
A young street musician first brought the issue to the ACLU’s attention. He was ticketed after a business owner complained, the ACLU said.
The busker was playing his guitar on the public sidewalk, with his guitar case open to solicit tips. He told the ACLU that Durango police have told him numerous times to move on.
“Peaceful and nonthreatening and nonintrusive requests for charity harm no one and are squarely protected by the First Amendment,” Silverstein said.