Greensboro’s anti-panhandling ordinance comes under legal fire

A number of people who are experiencing homelessness in Greensboro are expected to sign on as parties to a lawsuit seeking an injunction against Greensboro’s new anti-panhandling ordinance.

Homeless advocates let out a cheer after Greensboro City Council repealed the city’s panhandling ordinance based on City Attorney Tom Carruthers’ advice that it was unconstitutional. Twenty-five minutes later they left council chambers significantly more subdued, after that same council voted 6-3 to replace the old ordinance with a new one aimed at curbing aggressive solicitation.

Members of the newly formed Homeless Union of Greensboro held a conference call on Tuesday with a battery of lawyers, including representation from the National Law Center on Homeless & Poverty to discuss filing an injunction to suspend the new ordinance.

Carruthers told members of city council before their April 24 vote to approve a replacement ordinance that in the wake of the US Supreme Court’s 2015 ruling in Reed v. Town of Gilbert, “You cannot have a standalone panhandling ordinance.” He added, “That would be subject to strict scrutiny. It would likely be one that would not survive legal challenge.”

Gone is the old requirement that panhandlers undergo a criminal background check. Gone is the requirement that they carry a license.

The new ordinance adopted by city council treats panhandling as a form of solicitation, alongside five other distinct categories: “peddling,” “commercial soliciting,” “itinerant merchanting,” “street performing” and “mobile food vending.” The new ordinance includes several activities that seem most likely to apply to poor people requesting monetary assistance. They include specific conduct like intentionally touching, blocking a sidewalk, repeated solicitation, soliciting someone waiting in line at a building and soliciting within 20 feet of an ATM. Another measure describes a type of unlawful conduct that’s potentially more subjective: “Approaching or speaking to someone in such a manner or voice including not limited to using profane or abusive language as would cause a reasonable person to fear imminent bodily harm or the commission of a criminal act upon his or her person, or upon property in his or her immediate possession, or otherwise be intimidated into giving money or other things of value.”

Richard Vaught, who has been homeless for two and a half months, worried aloud after a meeting of the Homeless Union on Monday that a frivolous citizen complaint could easily turn into a misdemeanor.

“Nine out of 10 times they’ll write that ticket,” Vaught said. “You get a nice-looking guy downtown and you get someone who doesn’t look nice and has a criminal record, who do you think they’re going to believe?”

Vaught has his reasons for concern about how the Greensboro police will enforce the ordinance. He has a pending complaint filed with the department’s internal affairs division after he says an officer seized his panhandling license after he was caught asking for money in a traffic median.

As the Homeless Union crafts a legal strategy to defeat the new aggressive solicitation ordinance, city council’s legislative front is already cracking. Councilwoman Sharon Hightower, who voted with the majority on April 24 in favor of the ordinance, told her colleagues on Tuesday she will make a motion on May 15 to reconsider the vote.

Hightower said at the time she took the vote on April 24 she had not had the opportunity to talk with people experiencing homelessness who would be affected by the ordinance.

“No matter how much research you do, you still need to engage the people it affects — the stakeholders that it impacts,” Hightower said. “And so I don’t want this ordinance to have any unintended consequences. I do not want to be, and I will not be a proponent of disenfranchisement and injustice. So I will be bringing that ordinance back up to change my vote on the aggressive panhandling ordinance.”

Hightower’s switch means opponents of the ordinance need to persuade one additional council member to come over to their side to overturn the measure.

Chief Wayne Scott confirmed that the police do exercise broad discretion when it comes to panhandling. Scott told city council on April 24 that the police received 721 citizen-initiated calls complaining about solicitation in 2017. Officers were only able to justify criminal citation or arrest for violating the recently mothballed panhandling statute in only 22 instances.

Whether the city’s new aggressive solicitation ordinance adheres to the First Amendment or not likely hinges on whether the courts view it as a content-based restriction. If so, the courts would apply a principle called “strict scrutiny,” which would require the city to show that the ordinance is narrowly tailored to meet a compelling public interest.

“The first thing this ordinance is intended to do is to protect personal safety,” Carruthers told city council. “It doesn’t regulate the content of the ask; it is really regulating the ask that is also accompanied with behavior. And it’s a crucial distinction.”

Mayor Pro Tem Yvonne Johnson, one of three council members who opposed the measure, said that notwithstanding her colleagues’ assurances that the ordinance regulates all types of solicitors, it’s reasonable for panhandlers to presume the city is targeting them directly. Councilwoman Goldie Wells went even further, asserting that the city is “discriminating” by passing the ordinance.

Councilwoman Michelle Kennedy, who voted alongside Johnson and Wells to oppose the ordinance, added, “What we’re doing is lumping panhandling in with all other types of solicitation as a way to protect ourselves from being challenged for discrimination against people who panhandle.”

Carruthers said the city’s legal staff consulted with Judith Wegner, a retired dean at the University of North Carolina Law School, while drafting the new ordinance. Carruthers described Wegner as “one of the leading national experts” on the matter.

Carruthers’ comments to city council suggested the new solicitation rubric is an attempt to stay ahead of constitutional challenges by striking out for uncharted legal territory.

Speaking from the floor before the vote, Marcus Hyde, a community organizer who works with the Homeless Union, warned that various courts have found that buffer zones around ATMs and restrictions on repeated solicitation are unconstitutional. Kennedy asked Carruthers to explain how Greensboro’s new ordinance is different.

“Most of the challenges have been to ordinances directed to unique conduct: panhandling,” Carruthers said. “This new format of regulation of solicitation is a developing body of law that will need to be vetted. And it is being recognized by legal scholars that we are following their reasoning. This wasn’t a haphazard ordinance that we created. This is in conformity with former Dean Judith Wegner’s representation.”

Wegner gave a presentation entitled “Panhandling Regulation After Reed” at the Municipal Attorneys Winter Conference at the UNC School of Government in Chapel Hill in March 2017, and provided a model ordinance on soliciting.

Wegner warned in a written brief that there is “a risk that in our currently divided society, anti-panhandling ordinances are really aimed at pushing poor and homeless people out of sight of the public, or criminalizing the status of being poor or homeless. Dislike of panhandling and panhandlers is not the kind of justification courts will uphold as the undergirding of panhandling regulations.”

Wegner recommended a guide created by the Center for Problem-Oriented Policing to facilitate “community dialogues designed to adduce evidence needed in developing panhandling policies.” Cities, she added, need “to sort out real interests, not just positions.”

“That means an initial focus needs to be on ‘what conduct’ rather than ‘who,’” she added. “‘What conduct’ can include creating objectively determined danger, engaging in intimidation/threats, interfering with reasonable expectations of privacy, interfering with access by others who are navigating within congested public spaces, creating objectively determined risk of traffic accidents or exacerbation of traffic congestion.”

While city council members contemplate the idea of hosting community dialogues to collect evidence to support the need for regulation, the Homeless Union is undertaking a survey to compile data on people’s experience being cited and arrested for activity associated with homelessness, including panhandling and sleeping in vehicles, in hopes of marshalling their own evidence to bring to bear in a potential court challenge.

Brennan Aberle, a public defender who has long challenged the city’s treatment of panhandlers, warned city council on April 24 that its new ordinance is at risk of being struck down by the courts, and city taxpayers could wind up paying the ACLU’s attorney fees.

“My issue looking through this new panhandling ordinance is a lot of these things are just crimes,” Aberle said. “Aggressive behavior is assault. There is all kinds of assaults. There’s communicating threats. If you approach someone asking for money using intimidating threats or communicating language, that’s just robbery. There is a crime already for that. So my issue is even though I believe that these are less offensive than the way it used to be we’re still sending a message to the homeless community that we’re singling you out not really for any defensible Constitutional reason; we’re just singling you out because, the truth is, we just don’t like people panhandling in this city.”