We all see them.
A woman standing on the sloping entrance to Interstate 5 where it meets Interstate 90, holding out a sign and trying to catch the eye of drivers waiting at the metered stoplight. Young people near Pike Place Market looking for fare to the next town. The guys making a cynical commentary on the stodgy morality of the housed with their missives that read something like, “I’ll be honest, it’s for weed.”
That it’s so common should, itself, be a sign. People engage in panhandling for the simple reason that it is impossible to exist in this society without access to money. Absent a path to a paycheck or social benefits, that means relying on the kindness of strangers — a rare commodity on its own.
But the economically secure find visible poverty scary and requests for donations threatening. Businesses believe panhandlers scare off customers, and city governments, eager to please these businesses, respond to the complaints with anti-panhandling campaigns and laws meant to restrict or prohibit the practice.
The National Law Center on Homelessness and Poverty (NLCHP) is putting those cities on notice.
The NLCHP, along with advocates in 12 states, are pushing more than 200 cities to repeal bans on panhandling and to use their resources to provide the only thing that actually solves homelessness: Affordable housing.
The idea is simple. A 2015 Supreme Court decision called Reed v. Gilbert found that governments can’t make laws that treat certain kinds of speech differently just because of their content. That means, based on the case law, that ordinances that ban an individual from requesting money but not asking for directions could be found unconstitutional.
So far, the courts have agreed. After Reed v. Gilbert came down, courts have relied upon it to strike down 25 panhandling laws. Another 31 communities took the proactive step of repealing their prohibitions before finding themselves in court.
Attorneys challenging the laws have won every time, said Eric Tars, senior attorney at NLCHP, and the organization is hoping to continue that winning streak without going to court. They’re looking to persuade other communities to remove their ordinances voluntarily.
“Any city attorney worth their bar license would see these are being overturned left and right,” Tars said.
As is often the case with case law, Reed v. Gilbert itself had nothing to do with homelessness or panhandling. The town of Gilbert, Arizona, had a sign ordinance that dictated how large signs could be, where they could be placed and how long they could stay there. These characteristics varied based on the content of the sign.
Clyde Reed was the pastor at Good News Community Church. Good News was a church without sanctuary; the congregation met in buildings like elementary schools and placed signs around town to guide people to services. They were cited twice for violating Gilbert’s sign ordinance.
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Reed challenged the ordinance in court in 2008 and, after quite a bit of back and forth, it landed with the Supreme Court where conservative Justice Clarence Thomas, writing for the majority, found that the sign ordinance was “content-based on its face” and explicitly treated certain content differently from others.
Such ordinances would be subject to “strict scrutiny,” Thomas wrote.
Those words were music to homeless advocates’ ears.
The “strict scrutiny” standard is a high bar. To survive it, a law must be “the least restrictive means of achieving a compelling government interest.” So far, panhandling bans haven’t met that standard.
Reed set off a domino effect, said Jocelyn Tillisch, a law student at Seattle University and co-author of “Begging for Change,” an analysis of anti-panhandling laws in Washington state.
“The outcome of Reed was that any law that prohibited speech based on the content of the speech or message and purpose was unconstitutional,” Tillisch said. “A law that prohibits panhandling, which is just somebody asking another person for help — it makes that message illegal. That’s where Reed comes in.”
Tillisch and her colleague Drew Sena found 121 ordinances on the books in 64 cities in Washington that prohibit or restrict begging. Most treat panhandling as a criminal offense, punishable by a misdemeanor citation and fine, which can further derail a homeless person and hurt their ability to get into housing.
According to the report, when courts began striking down panhandling ordinances in the 1990s on free speech grounds, cities modified their ordinances to encompass “aggressive begging” or “aggressive panhandling.” That opened the door to a potential slew of abuses.
“If a bystander feels fearful or even feels compelled to give, such feelings may be enough to make begging criminal regardless of whether the person begging has done anything objectively aggressive,” the report reads.
Only 2 percent of those ordinances have specific, objective criteria that define “aggressive begging.” In 42 percent of cases, the ordinances rely solely on whether a bystander perceives a threat.
This, of course, presents a host of problems. People are wired to react negatively to visible poverty. Studies demonstrate that poor people elicit reactions from the same pieces of our brains as the emotion of disgust or repulsion, setting up a scenario in which a law against aggressive panhandling could be enforced on people who, by objective standards, have done nothing wrong.
There are already laws that protect members of the public from aggressive behavior that rely on higher standards of proof than a feeling.
“If you have conduct that’s truly aggressive and you feel threatened, that’s assault,” Tars said. “If you’re touched in any way, that’s battery.”
Punishing a person because someone else was uncomfortable that they asked for a donation infringes on speech, he said.
Tillisch and Sena found two cities in Washington — Lakewood and Marysville — that have cited people under their panhandling ordinances in the past five years. Lakewood issued 51 citations under its two laws that resulted in harsh consequences. All violators received a 90-day jail sentence, and 60 percent found guilty of begging in restricted areas faced a fine ranging from $300 to $500.
Lakewood was forced to change some of its policies after a 2016 Washington State Supreme Court decision found that some provisions of its restricted areas policy were unconstitutional. The city worked with the ACLU of Washington to modify its ordinance, wrote Brynn Grimley, communications manager for the city, in an email.
Marysville issued only four citations but took steps to modify its code to prohibit people from soliciting at busy intersections and physically entering the roadway after the Reed decision came down.
“The city attorney does periodic code reviews to clean up ordinances that are no longer needed such as the 2014 panhandling ordinance you cited. Taking it off the books will be part of that larger planned body of work,” wrote Connie Mennie, communications administrator for Marysville, in an email.
Tillisch warned, though, that just because other communities don’t issue citations doesn’t mean that panhandlers are going unmolested.
Restrictions on speech could come through “move along orders” issued by police that effectively stop speech but do not produce any data that can be tracked.
Although Seattle does not have a prohibition on aggressive panhandling, despite a strong push for such a law in 2010, it does have a “sit/lie ordinance” that prohibits people from blocking the public right of way. Enforcement of that ordinance can also result in an indirect chilling of speech, depending on how it is used, Tillisch said.
Tars and the NLCHP hope that the Housing Not Handcuffs effort will bring awareness to the ongoing harassment of homeless people who are trying to survive in a world where they are criminalized just for asking a fellow human being for help. Apparently, the message hasn’t penetrated as far as advocates might hope.
“There are still places that continue to enforce these laws and continue to pass them,” Tars said.
Ashley Archibald is a Staff Reporter covering local government, policy and equity. Have a story idea? She can be can reached at ashleya (at) realchangenews (dot) org. Follow Ashley on Twitter @AshleyA_RC
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