Judge rules in favor of ACLU in Boise panhandling ordinance lawsuit


by Jamie Grey


Posted on January 2, 2014 at 10:51 PM

BOISE -- On Thursday afternoon, a U.S. district federal court judge ruled the City of Boise cannot enforce much of a new panhandling ordinance while a lawsuit is heard about the city code. The ordinance went into effect the same day.

ACLU lawsuit claims First Amendment violations

The ACLU of Idaho, along with other plaintiffs, filed the lawsuit in November in hopes of overturning the city's anti-solicitation measure, saying the ordinance violates the U.S. and Idaho Constitutions.

The ruling stops the City of Boise from enforcing a portion of its new anti-solicitation ordinance that took effect Thursday. The preliminary injunction will remain in place while the case is litigated.

As written, the code prohibits soliciting in places like public transportation vehicles (like city buses), and within 20 feet of an ATM, bank, sidewalk cafe, food truck, public bathroom, bus stop or taxi. Those are the types of restrictions U.S. District Judge Edward Lodge says the city can't enforce for now.

Other parts of the ordinance restrict aggressive panhandling and asking for or taking money while standing in the street. Those parts are not part of the judge's preliminary injunction. The ACLU is specifically challenging restriction of non-aggressive panhandling in public places, saying it is too broad unlawfully restricts freedom of speech.

"If the City of Boise was going to apply the law equally, as they should, that would mean that it would restrict anyone from asking for any donations or anything of value in the downtown corridor," ACLU of Idaho Executive Director Monica Hopkins said. "If you were passing by me at a parking meter, and I didn't have change, I couldn't verbally ask you to give me a quarter. That's what the city was saying."

Judge: This is a case about First Amendment right to ask for money in public

In his 17-page order, Judge Lodge said the entire case is about whether under the U.S. Constitution, a person has the right to ask for money in public or if the "government can reasonably restrict such right to achieve appropriate governmental interests."

Further, he wrote: "Charitable solicitation by individuals is protected by the First Amendment... Because the ordinance restricts charitable solicitations in certain areas of the City, the Court finds the plaintiffs have presented a colorable First Amendment challenge to [the ordinance]."

The judge pointed out some issues to look at with the ordinance, like that it doesn't restrict solicitation for things signatures like a petition in the same public areas and does not limit who is asking for money. The ACLU contends its efforts to talk to and accept donations in downtown Boise could technically fall under the law.

While Lodge said the aggressive panhandling and in-street solicitations portions are clearly to protect public safety and may be enforced, he says most other restrictions need a closer look. He further said there is threat of irreparable harm if the ordinance were enforced now but struck down later, which is a possibility with the lawsuit.

"Certainly, the First Amendment can lead to public inconvenience and annoyance, but such is a minor price to pay when the non-aggressive solicitations at issue can easily be ignored or avoided. The public's interest in restricting a person from asking for money in a non-aggressive manner does not outweigh a person's right to make a request for a charitable contribution," Lodge wrote.

ACLU: This is a 'huge decision'

The ACLU and other plaintiffs say the victory in getting a preliminary injunction on enforcement of much of the law is significant.

"This decision just once again reinforces that people have a right, no matter if they have lost their home or not, have a right to free speech, have a right to participate in the public sphere whether or not it makes people uncomfortable just because they simply are [uncomfortable]," Hopkins said.

"What [the city] did is release a Trojan horse of ordinances that would have restricted people's speech in the downtown corridor, and quite frankly was out to target poor people and homeless people," Hopkins said. "In the decision, Judge Lodge says very clearly that this case is not about whether or not people in a downtown corridor asking for money makes people uncomfortable. The purpose of free speech  is sometimes it makes people uncomfortable, and you cannot just target specific people for the content of their speech."

Plaintiff Troy Minton, who filed as an individual panhandler, says he asks for money to buy gas to get to interviews or temporary jobs he picks up. He says he got a call about the judge's decision while at the library applying for jobs and was happy to hear about the preliminary injunction.

"I think a lot of people don't have the nerves to want to come up and want to fight somebody big like the city of Boise. They might have been too scared to do something," Minton said.

Boise Police officers instructed not to take any action regarding panhandling code

The City of Boise released this statement Thursday afternoon:

The City of Boise is pleased that the court's ruling did not affect two key portions of the ordinance, those banning aggressive solicitation and solicitation in the roadway. It is also important to note that the court made no final ruling on the validity of the third portion of the ordinance dealing with solicitation within certain distances of ATMs, sidewalk cafés, public transportation, etc. The ruling means only that this third section raised enough questions that the court opted to maintain the status quo while it reviews further evidence. Although the ordinance was to go into effect today (January 2), the City's plan has always been to emphasize education rather than enforcement for the first several months. The Mayor and City Council will review the court's ruling before determining next steps.

A Boise Police Department spokeswoman says officers have been advised to take no action, meaning enforcement or education, until further notice. That instruction includes the aggressive panhandling portion. The department says violations like stepping into the roadway area already enforceable through state law.