Panhandling Proposals Likely Unconstitutional; CSO Never Enforced
(APN) ATLANTA — Today, the City Council of Atlanta is hosting a second Work Session on proposed changes to the City’s Commercial Solicitation Ordinance (CSO), which has not been enforced since its enactment in 2005. However, Atlanta Progressive News has learned that, according to Gerry Weber, a constitutional scholar who teaches at Emory University School of Law, neither the current ordinance, nor two current proposals to amend the ordinance, conform to the Constitution of the US, which provides, among other things, for freedom of speech.
At the first Work Session, held on August 23, 2012, City of Atlanta Solicitor Raines Carter revealed that the controversial 2005 CSO–which passed after a heated and passionate debate at City Hall that summer–has never been enforced.
Carter told Chairman Michael Julian Bond (Post 1-at-large) of the Public Safety/Legal Administration Cmte, as well as Felicia Moore (District 9), who’s not on the Cmte but attends most work sessions even when most Cmte members do not, that shortly after the CSO passed in 2005, Carter met with the then-COO of the City of Atlanta and leaders of the Atlanta Police Department (APD), and determined that the CSO was “unworkable.”
Carter said it was unworkable because the current CSO provides for non-arrest citations for first and second violations of any sections of the CSO–which bans panhandling in the Tourist Triangle and near the King area, panhandling at night, panhandling near an ATM, and aggressive panhandling, among other things–however, the APD had no system in place to issue non-arrest citations or track first and second warnings. Carter said that at that time, he suggested that many panhandling-related offenses could likely be prosecuted under the City’s Disorderly Conduct law, which does provide for arrest. And that is what the City has done since then.
It is not immediately clear why, if the Executive Branch of the City under then-Mayor Shirley Franklin knew that the CSO was unenforceable, that Franklin chose not to veto the ordinance. However, Chuck Steffen, Professor of History at Georgia State University, suggested at the first Work Session, that the City enacted the CSO as a favor to Bernie Marcus, to encourage him to open the Georgia Aquarium, even though everyone secretly knew it was unenforceable.
Similarly, neither the COO nor the APD nor the Solicitor ever came back to the Council to tell them that their ordinance was not workable, until now, now that Councilman Bond has proposed amending the CSO. They simply took it upon themselves to ignore the law and to enforce some fraction of panhandling-related offenses under a different set of City ordinances.
The current CSO, as previously reported by APN, also provides for APD to detain CSO violators, such as Tourist Triangle panhandlers or aggressive panhandlers, until a homeless outreach team could arrive and provide the panhandler with referrals to alleged social services for homeless people, upon a first or second offense of the CSO. However, the City, of course, does not have adequate homeless services to refer people to, and that–along with the unconstitutionality of the CSO–is likely the real reason that the CSO has never been enforced.
Prof. Weber, who also works for the Southern Center for Human Rights and runs his own private practice specializing in constitutional law, says the current CSO is not constitutional because it prohibits panhandling–the act of simply speaking to someone–in the Tourist Triangle and near the King Center. It is not constitutional to prohibit certain types of speech based on the content of that speech in large swaths of the City, Weber said.
Weber tells APN that he made it clear the CSO was not constitutional in 2005 for that reason. Weber, who worked for the American Civil Liberties Union of Georgia at the time, warned that litigation would be brought against the City as soon as someone was arrested for exercising their right to free speech in the Tourist Triangle or near the King Center.
While the aggressive panhandling portion of the CSO is likely to be constitutional, Weber says the Tourist Triangle and King Center portions are clearly not. He said prohibitions against panhandling at night and panhandling near at ATM were in a “gray area,” although he said that protecting a fifteen foot radius around an ATM was certainly more “narrowly constructed” than prohibiting certain types of speech in entire zones of the City of Atlanta.
Weber also stated the provisions about referring panhandlers to social services, even if that was actually happening or if the services even existed, do not make it constitutional to ban asking for money in the Tourist Triangle or near the King Center. He said it is something that Court would likely consider as part of the entire context of the CSO, but that it would not override the right to free speech.
It should be noted the last time the City believed they were acting in accordance with the Constitution of the US, the APD went ahead and detained 62 patrons at the Eagle Bar during the infamous raid of 2009 [a story that APN first broke the evening after it happened]. Weber was one of the lead attorneys on the Eagle raid lawsuit, in which the City spent millions on litigation and settlement payments and it became clear that the City had violated the Constitution by detaining people without regard to suspecting them of specific crimes. Thus, the Law Department of the City of Atlanta does not have too much credibility in terms of its constitutional analyses in recent years.
Two proposals currently pending before the PS/LA Cmte–Bond’s proposal to increase the penalty for a third offense of aggressive panhandling, and Solicitor Carter’s proposal to completely revamp the CSO–are likely also constitutional for similar reasons as stated above.
Bond told APN a few days ago in a phone interview that he expected his proposal to be filed rather than voted on, mostly because it is premised upon a scheme of first, second, and third offenses and a system of non-arrest warning citations that APD has no intention of enforcing. While prohibitions against aggressive panhandling, in and of themselves, are likely constitutional, other portions of the CSO that would remain intact would remain unconstitutional.
APN’s News Editor, the present writer, suggested to Bond’s office this morning that they consider creating a new ordinance that simply addresses aggressive panhandling and provides for penalties thereof, in order to disentangle aggressive panhandling–the issue he purports to seek to address–from other panhandling provisions in the CSO, which are not workable, not enforceable, and apparently not constitutional.
Meanwhile, Carter’s draft proposal, obtained by APN, removes all provisions about social service outreach and referrals, as well as first and second non-arrest citations, from the CSO, and states that any persons violating any section of the CSO–whether aggressive panhandling or simply asking for money in a forbidden zone–can be arrested upon a first offense and can receive a sentence including up to 180 days in prison. Such a proposal, if enacted, might make the CSO more workable, but moves it even further away from being constitutional, because the penalties are being increased for simply exercising one’s right to free speech in a so-called Tourist Triangle.
Carter also proposes that any homeless outreach and referral services should be provided by the Community Court, and not by the APD, thus on the back-end and not on the front-end. However, his draft includes no language that would provide for such services by the Community Court. And it is not clear why anyone should believe that the City of Atlanta would ensure that such services be provided now, especially when they would not be codified in law; not when for the last seven years, similar services were codified in law but never provided a single time to a single person.
At the first Work Session, persons on both sides of the issue made public remarks, including advocates for poor and homeless people, such as Steffen; Anita Beaty, Executive Director of the Metro Atlanta Task Force for the Homeless; and Joe Beasley, Southern Regional Director for the Rainbow/PUSH Coalition; in addition, anti-panhandling advocates such as representatives from Central Atlanta Progress, the Atlanta Downtown Improvement District, Underground Atlanta, and the restaurant and hotel industries, spoke as well.
Some of those speakers made it clear they do not want to be bothered by panhandlers at all. One owner of a downtown Marriott hotel testified that his patrons are bothered by panhandlers when they leave the hotel and visit downtown Atlanta. Unfortunately for them, what they are seeking, is precluded by a neoliberal capitalistic, but also democratic society, that creates homeless and impoverished people but also provides for their right to free speech.
Councilman Bond and the downtown interests appeared to be sharing some of the same talking points. They seek to portray panhandlers as crooks, thieves, con artists, confidence men, and hustlers who are neither homeless nor indigent. Bond has repeatedly characterized most, if not all, aggressive panhandlers in this manner; the downtown interests have characterized most, if not all, panhandlers in general in this manner.
Bond has repeatedly cited a statistic that 81 percent of those arrested for aggressive panhandling are not homeless because they provide an address when they are arrested. It should be noted that while the arrests are generally for aggressive panhandling, the actually ordinance being in these cases is not the CSO, but typically Disorderly Conduct.
However, APN has raised concerns about the methodology and validity of this statistic, which relies on self-reporting. Prof. Weber–who obtained statistics from APD related to an urban camping ordinance–found that most people who were urban camping would provide APD with some address when asked for one, whether it was an address of a friend or relative, the address of a shelter, or simply the last address where they resided.
Thus, it is a stretch to say that because someone provides APD with an address when being arrested, that therefore they must be housed, they must be middle or upper class, and further, they must be scam artists, as Bond would have Atlantans believe.
And yet, such a mischaracterization does not even logically serve the argument that something must be done about aggressive panhandling. Not a single opponent of the CSO that APN has interviewed believes that aggressive panhandling is acceptable. Therefore, Bond and the downtown interests he is genuinely responding to, could achieve their ends by focusing on aggressive panhandling and not by demonizing the people who are doing the panhandling.
Bond also said that he was bothered by what he referred to as demagoguery–defined as the appeal to emotions by political leaders–on the part of advocates for poor and homeless people, such as advocates like Beasley and Beaty. But Bond has had no similar complaint about the downtown interests who have portrayed most if not all panhandlers as non-homeless crooks.
“No, they [the downtown interests] are precious citizens,” Beaty noted.
Finally, as previously reported by APN, CBS Atlanta ran a report late last week that completely misrepresented the facts when CBS reported three times that panhandling is illegal in the City of Atlanta, telling a homeless man that he broke the law when asking for two dollars because panhandling is illegal in the City of Atlanta. To date, CBS has not run a retraction or clarification.