ACLU takes aim at Colorado town ordinances that prohibit peaceful panhandling
August 28, 2018
BLUE RIVER — Is panhandling a free speech issue?
The American Civil Liberties Union thinks so, and it's demanding that Colorado towns repeal ordinances that prohibit peaceful panhandling. The ACLU penned a letter to the Town of Blue River earlier this week condemning the town's loitering ordinance in the town code, which makes it a crime to "loiter for the purpose of begging."
"These outdated ordinances, which prohibit peaceful, nonintrusive requests for charity, must be taken off the books," said Rebecca Wallace, ACLU of Colorado staff attorney. "As courts across the country, and here in Colorado, have recognized, a plea for help is a communication that is protected by the First Amendment."
Under Blue River town codes, loitering is defined as "to be dilatory, to stand idly around, to linger, delay or wander about, or to remain, abide or tarry in a public place." Loitering for the purpose of begging, or panhandling, is considered a Class 1 petty offense, punishable in Colorado by up to six months in jail, a $500 fine or both.
In a letter signed by Wallace and Eric Tars, senior attorney for the National Law Center on Homelessness & Poverty, the ACLU describes the ordinance as unconstitutionally targeting poor and homeless individuals, and that the solicitation of charity is protected under the First Amendment.
Citizens for a better environment
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The letter noted a number of court cases to bolster their stance, including Schaumburg v. Citizens for a Better Environment, a U.S. Supreme Court case from 1980 which states: "Charitable appeals for funds, on the street or door-to-door, involve a variety of speech interests — communication of information, dissemination and propagation of views and ideas, and advocacy of causes — that are within the First Amendment."
They also cited Loper v. New York City Police Department, a 1993 U.S. Court of Appeals, Second Circuit decision which reads: "Begging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation…We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not a significant one for First Amendment purposes."
John Dunn, attorney for the town of Blue River, was unperturbed by the ALCU's demands. He said that, on top of a relative scarcity of panhandlers in town, the loitering ordinance has been in the town code for years with little to no enforcement.
"I doubt that particular section of the ordinance has ever been enforced," said Dunn. "If you adopt the usual municipal offenses that everyone seemed to have years ago it gets included. So it's been on the books from the start, but hasn't been enforced."
'Best interests of the residents'
Despite the historical lack of enforcement of the ordinance, the ACLU is pushing for its expulsion from the town code altogether, citing worries that law enforcement officers could review the municipal code and enforce the ordinance regardless of the current culture of acceptance.
Dunn said that the Town Board of Trustees had not yet asked him to voice an opinion on whether or not to repeal the ordinance, and that he wouldn't unless asked. He did note, however, that the board would review the matter, and a response would be sent to the ACLU in the near future.
"This is new information to the town, and we will be looking into the content of this request, and staying focused on the best interests of the residents of the town," Blue River Mayor Toby Babish said.
The ACLU reached out to 31 cities across the state demanding similar repeals of laws restricting panhandling as part of a coordinated effort organized by the National Center on Homelessness & Poverty. None of those cities are in the Eagle River Valley.
Laws on panhandling are relatively common, though most distinguish between panhandling and "aggressive panhandling." Both Breckenridge and Frisco have ordinances prohibiting aggressive panhandling that address physical contact, obstruction of traffic and similar issues. Silverthorne and Dillon both have loitering ordinances in the books, though neither prohibits soliciting charity.