Homeless Union of Greensboro's Response to the new Panhandling Ordinance
Homeless Union of Greensboro's Response to the New Panhandling Ordinance:
Greensboro's City Council should get some competent advice regarding poverty. Criminalizing Homelessness (no matter what you call it) is unconstitutional, counterproductive and inhumane.
On April 24th, the Greensboro City council took one step forward -to protect the rights of low income people - and almost immediately took a big step back, causing a legal mess for themselves and anyone wanting to exercise their First Amendment rights. First, they repealed the city's old, terrible panhandling ordinance, but then, following the advice of the city's attorney, Tom Carruthers, 6 of the city's 9 council members voted to adopt a new "aggressive solicitation" ordinance, despite testimony from homeless people, advocates, and lawyers who told them that a new panhandling law would still amount to criminalizing homelessness and leave the city vulnerable to lawsuits.
In January, members of the Homeless Union of Greensboro wrote the City council and informed them that their (then current) panhandling and loitering ordinances were unconstitutional and ought to be repealed. After a brief review of recent case law, the city attorney advised the council that our claims were right, but then misled them to believe that a new replacement ordinance was both constitutional and necessary for maintaining order.
Asking others for help is constitutionally protected speech and cannot be criminalized. The courts across the country have developed a consensus regarding limits on regulating begging, and since 2014, and 100% of panhandling ordinances have been struck down when tried in federal court. That includes The City of Worchester, MA's 'aggressive panhandling' ordinance which is nearly identical to Greensboro's new 'aggressive solicitation' ordinance. Case law regarding panhandling is so clear today that even a reluctant judge in Tampa, Florida, who was critical of recent developments in First Amendment Law, was compelled to follow case precedent and strike down the city's panhandling law, stating that, "soliciting 'donations or payment' is a form of speech protected by the First Amendment." (Homeless Helping Homeless, Inc. v. City of Tampa, 2015).
There is a very helpful guide concerning First Amendment speech regulation provided by the American Bar Association, and other resources provided by the National Law Center on Homelessness and Poverty are easily accessible to council members, city staff and the city's legal team. Any brief survey of recent case law would show that criminalizing homelessness, and panhandling in particular, is an expensive, stupid and legally unjustifiable way of dealing with poverty.
Common sense tells us that criminalizing poverty (or asking for help) only creates more poverty. People need good wages, access to health care and homes that they can afford – not tickets, court dates and arrest records. Homelessness ends with a home, period.
So why did the city vote for a replacement? We assume that the council felt pressure from certain constituents to send a message to poor people that the city won't tolerate aggressive behavior. And we know that the city attorney, Tom Carruthers, convinced the council that it could regulate the behavior of panhandlers, and appease Downtown Greensboro Inc., by lumping panhandling into a larger "aggressive solicitation" ban that affects girl scouts who sell cookies and firefighters who fill boots too.
The city needs a lawyer who can represent their lawyer - because their lawyer may very well need to defend himself for purposefully misleading the council. Solicitation ordinances that don't specifically target panhandling are still "content-based speech restrictions" because they distinguish between people soliciting/speaking and people who are not soliciting/speaking. Therefore, 'aggressive solicitation' ordinances are still "presumed to be unconstitutional" unless they meet the standards of "strict scrutiny" - the exact same reason panhandling ordinances have failed across the country up until now. In order to meet the standard of strict scrutiny, cities must prove there is a need for such an ordinance to meet a "compelling government interest", such as safety. The city also needs to prove it tried other means of addressing whatever issues the public has before restricting speech. And the city must prove that it is limiting the least amount of speech possible.
Under every qualification listed above, the city has failed to meet the standard of strict scrutiny. The city attorney and the council didn’t do their homework. They didn’t provide any evidence that panhandling was an issue in the city of Greensboro. They didn't try any other means of addressing issues prior to enacting the law, and the new ordinance limits way too much speech. Just because this law also affects Girl Scouts, food trucks and newspaper vendors, doesn't mean that it is a just law or that it will be applied equitably. Furthermore, many of the specifics of the new ordinance, such as bans on soliciting near ATM's, or repeatedly asking for money have already been struck down in other cities.
But the crux of the city's legal and ethical problems surround the ordinance's vague language about banning the use of "aggressive or threatening" gestures and "profane and abusive" language. Laws which rely solely on a police officer's determination of a person's politeness or etiquette are, by definition, unconstitutional because they allow for arbitrary and discriminatory policing. There is a reason other laws, such as harassment, assault, stalking, etc., require a standard of evidence that says an offender actually committed a crime and didn't just annoy someone.
"Justice" that is dependent on not offending certain people's respectabilities is not justice under the United States Constitution. It is the type of quote-on-quote 'justice' that got Emmett Till murdered - which is to say, it cannot be considered justice by any stretch of the imagination. Till's murderers believed they were carrying out a form of justice and that Till deserved to die because he appeared (based on one woman’s word) to be a threat to someone of a different class.
And that is the problem with "quality of life" policing in general. Our nation has a brutal history of using vaguely worded ordinances to push 'certain kinds' of people out of public space. Under the city's current laws, homeless people are breaking the law as soon as they stop walking, or as soon as they talk to someone. Hanging out in public without buying something is a violation of the city's loitering laws, and approaching a person with a request for financial help could be construed as "aggressive" based solely on the interpretation of the person being asked, or the interpretation of a police officer.
It shouldn't be necessary to point out that black and brown folks are disproportionately affected by poverty and homelessness, but we feel that it is necessary. This fact is overwhelmingly obvious in Greensboro. And in light of our nation's egregious history of racialized policing, we must be diligent about making sure that the laws on the city's books don't give police broad sweeping tools to push "undesirables" out of public space.
To put this into a more current context, let’s remember that Zared Jones and his friends were not breaking any law when they were asked by police why they were coming downtown. They didn’t break any laws when the police told them they didn’t belong downtown, and they were also not breaking any laws when they were beaten, tased and arrested by Greensboro's police force - except perhaps the city's loitering ordinances.
Section 18-44 of Greensboro's Municipal ordinance Ordinances, states that "It shall be unlawful for any person to occupy the streets or sidewalks of the city within fifty (50) feet of the entrance or exit of any establishment that serves alcohol.” Likewise, under Section 18 -46, it is a crime for any individual to be in a "location frequented by persons who use, possess, or sell drugs.” Technically speaking, anyone could be arrested for either of these ordinances at any time that they are outside of their own house, because a police officer could arbitrarily determine that any given street corner is frequented by people who smoke weed or abuse prescription drugs - including all of downtown. But we have an inkling that the vast majority of tickets written for loitering or panhandling are given to people of a certain demographic.
Zared Jones and his friends were not given panhandling or loitering tickets. So what were the 4 black male friends truly guilty of? Being a 'certain kind' of person in public space.
The city's new panhandling ordinance only adds more legal justifications for police to continue their practice of discriminatory policing. It's purpose is not public safety, although that is exactly how quality of life ordinances, broken windows policing and safer city initiatives are always sold to the public. The ‘broken windows’ theory holds that if a window breaks in an otherwise nice neighborhood, the window needs to be replaced immediately, otherwise it is a sign that nobody cares, which will result in more neglect of one’s neighborhood, and before you know it the whole neighborhood goes to hell in a hand basket. When the broken windows theory is applied to policing, it suggests that you can effect large crimes by attacking small crimes. In turn, innocent behaviors like asking for change become signs of disorder, and homeless people are viewed as ‘broken windows’ that need to be removed from the community.
This is a city known for its struggles for civil rights. But as of today, if a low income person walks into Greensboro, they have one mode of operation that is legal under the current law - to keep walking. That is far too reminiscent of a Sun Down Town or an Anti-Okie law or a Jim Crow era policy for us to sit idly by and see how it works out.
The city rushed into this new ordinance under the bad advice of a city attorney. Even worse, we heard that Mr. Carruthers relied on an intern to research and write the new ordinance. And his lack of knowledge of First Amendment law was on full display during the council meeting when he could not answer simple questions by council members regarding the specifics of the ordinance.
But some of the fault must still lie with the council members. Mayor Vaughan and others promised to hear from the community and to do their homework before adopting anything new. Instead, they rammed a ordinance through without any sort of due diligence. Where were the public forums that were promised? What input did they seek from the homeless service provider community or from the faith community or from Girl Scouts or from Firefighters? And what input did the city ask for from legal experts who aren't defensive of the city's pre-existing policies? And, most importantly, what input did the city get from the homeless community who are most directly impacted by the change?
The Homeless Union of Greensboro has asked that the city establish a poverty commission to advise the city on policy to combat poverty. We continue to ask that 50% or more of the commission be made up of poor and low income people, because we know that people directly affected by social injustice are the real experts of their own lives and on issues that affect their community. Perhaps if the city had started this conversation by asking for help from some competent advisers, they wouldn't be in the ethical and legal pickle they are in now.