Brother, Can You Spare a Constitutional Right? A Look at Tim Burgess' Anti-Panhandling Proposal

​In August, the city of Spokane Valley wanted to prohibit panhandling near automatic teller machines, to people getting in or out of cars, at intersections and freeway on/off ramps, and after dark. Somewhere, former Seattle City Attorney Mark Sidran smiled. Then the Spokane Valley City Attorney's Office looked into the idea and decided it was unconstitutional. The proposed ordinance was shelved.

But it lives on--in Spokane, for example, where it's already on the books (the city council passed the law last November, before the 9th Circuit Court of Appeals clarified the First Amendment case law on soliciting in June in City of Seattle v. Berger, about which more is written below), and now in Seattle, where Councilmember Tim Burgess is looking to get a similar ordinance passed before the end of the year. He appeared on KUOW's The Conversation on September 16th, arguing that the prohibitions are necessary because of a "pervasive problem we have with street disorder in many of our neighborhoods and downtown." As evidence, he noted that his office receives one to two calls a week complaining about aggressive panhandling. Allowing it to continue, he argued, will just lead to an escalation of crime, as potential lawbreakers perceive a culture of permissiveness.

A few problems stand in the way of Burgess' proposal, however. To start, much of the conduct that is the source of Burgess' complaints is already prohibited--something that raises questions about the necessity of a new statute and may make it more subject to constitutional challenges, as laws that restrict free speech must be narrowly written and necessary to accomplish their aims. (The latter would be called into question when pre-existing statutes prohibit the same behavior.) Seattle's pedestrian interference law, passed by the City Council in 1993, already makes it illegal for a panhandler to make a reasonable person feel fearful or compelled to give money, or to obstruct pedestrian or vehicle traffic while panhandling.

Burgess says that his proposal is necessary to make prosecutions less dependent on the cooperation of the alleged victim. Along those lines, he notes the SPD's desire to conduct panhandling stings by having undercover officers pose as tourists. Asked by KUOW host Ross Reynolds whether the whole approach doesn't constitute picking on the poor and homeless, who might be better helped through other programs, Burgess replied that the city already has many programs to help the homeless, insinuated that most homeless don't panhandle (he cited a conversation he had with a social worker, none of whose 100+ clients allegedly panhandles), and added that most of those cited for aggressive panhandling are under supervision for previous criminal offenses.

When the Seattle Displacement Coalition's John Fox heard those comments, he "had a very visceral reaction. A significant proportion of the homeless do panhandle," he asserts, citing his own experiences working with homeless youth, "but the bigger issue is the inference that all panhandlers are criminals. Violence against the homeless is very real, and this sort of typecasting makes it easier to ignore them or abuse them."

Fox sees the proposal as part of a larger effort to remove the poor from public view, "to appease a certain segment of the merchant community." He explains: "The whole idea is to get an array of laws in place so that, at one point or another, this population is going to run afoul of one of them. You lean against a building, it's a trespass admonishment. The next time you do it, they can arrest you. You sit down, you've violated the sitting law. It's just a fine, but of course you can't pay the fine, so then there's a warrant out against you. The effect is that police have complete control over everybody who's out there. If they don't like the way you look, they can just say, 'Look, get out of here or I'll arrest you.'"

Another potential problem for Burgess is the Constitution. In advising against the law, Spokane Valley Deputy City Attorney Cary Driskell cited an analysis by the Spokane Center for Justice that, "assert[s] that the proposed ordinance is likely an illegal content-based restriction on speech. Because it is content-based, it must be narrowly tailored to a compelling government interest, such as public safety." The memo cites the case Berger v. City of Seattle, which centered on a balloon artist's right to peddle his wares at Seattle Center. In that case, the 9th Circuit ruled that preventing "captive audiences" from feeling uncomfortable when solicited is not a compelling government interest. (Similarly, the 9th Circuit indicated in a 2000 case, Los Angeles Alliance for Survival v. City of Los Angeles, its unease with an ordinance similar to the one Burgess is proposing. The parties ultimately settled.)

To go ahead with the restrictions, continues Driskell, again citing the memo, "There would have to be something like an identifiable public safety concern, supported by statistical data." A councilmember's assertion of one to two phone calls a week about the problem of aggressive panhandling generally might not cut it. In comments to Seattle Weekly, Driskell contends that ordinance supporters would need to be able to point to statistics showing that when there's panhandling and a captive audience, there's a higher incidence of crime. "You'd need some sort of nexus, a direct tie. Absent that, I think courts are going to be reluctant to uphold an ordinance that is restricting free speech rights."

Moreover, Burgess would like the laws to apply to panhandlers but not, say, Real Change vendors. "It would not apply to [Real Change vendors] because they're not presenting a problem," he said on KUOW. Similarly, he argued that while panhandlers holding signs at street corners would be subject to the law, political campaigners holding signs would not--a distinction of questionable basis, if the aim is to avoid distracting drivers, as Burgess contends, and not to suppress the speech rights of panhandlers. Told of these comments, constitutional scholar and University of California at Irvine Law School Dean Erwin Chemerinsky wrote, "My sense is that the exception for vendors of newspapers and those in the street will make this particularly vulnerable" to constitutional challenge.

For now, the ACLU of Washington is expressing unease. "We have some concerns based on what we heard," says spokesperson Doug Honig, "but we haven't seen anything in writing. We look forward to talking with the councilmember and learning more about what he has in mind." Honig adds that the organization doesn't believe additional pandhandling laws are necessary, arguing that the city would be better served addressing the underlying causes of homelessness. He also notes that the ACLU was involved in legal challenges to the existing pedestrian interference law.

As for Burgess himself? The man who said we "can't afford not to" pass these laws is suddenly mum. In response to a request for an interview with the Councilmember, Burgess aide Nate Van Duzer says, "The Councilmember wants to hold off on making further comment on this until we have legislation on paper. He started the conversation, and now he's waiting to hear back from stakeholders."

He will hear from some of them shortly. When Fox caught wind of Burgess' proposal (via an editorial in the Seattle Times), he sent a letter to the councilmember, expressing his concern that civil liberties and homeless advocates had not been consulted, and requesting a meeting. Burgess agreed to meet with Fox on October 9th.

Fox says he plans to bring attorneys and homeless advocates with him, in the hope that they can help convince Burgess to abandon the proposal. "We're going to lay out all the arguments why he should simply drop this idea, from constitutional questions to divisiveness it will cause." Sidran's push for the pedestrian interference law, Fox argues, earned him the reputation of being anti-homeless and ultimately cost him at the ballot box in the 2001 mayoral race, when he lost to Greg Nickels. (Thus far, Joe Mallahan has voiced his opposition to Burgess' proposal, while Mike McGinn has said that he'll wait to see it in writing, but that he's "pretty skeptical" of it, based on what he's heard thus far.) Adds Fox, "I don't think Burgess knows what he's getting into."