Monday, August 31, 2009

Council Passes Panhandling Ordinance, Fails To Fix Drafting Flaw That Allows Ordinance To Be Applied To Political Speech

During the the Public Safety and Criminal Justice Committee meeting which considered the panhandling ordinance, I pointed out that there was a flaw in the drafting of the panhandling ordinance which could, contrary to Councilor Mike McQuillen's claim, cause the ordinance to be applied to political speech. As I pointed out at that time, that if the ordinance is seen as applying to political speech the odds of it being held constitutional decreases substantially. Unfortunately, the Republicans and Democrats were so locked into their partisan positions that nobody bothered to fix the drafting flaw in the ordinance

Let's examine the ordinance. (The emboldened language is the new language):

It shall be unlawful for a pedestrian to sit, stand or move within or upon a roadway, or a median between two (2) roadways, or within the public right-of-way not exceeding fifty (50) feet from the traveled portion of any intersection controlled by an automatic traffic signal or stop sign, for the purpose of or while engaged in (by oral or written methods):

(1) Soliciting, or peddling, selling, advertising, donating or distributing any product, property, or service, including but not limited to tickets, handbills newspapers or other printed material, to or from an occupant of a vehicle in the roadway; or,

(2) Conversation or discourse with an occupant of a vehicle in the roadway.


Thus, the elements of the new offense under the ordinance are:

1) Person is within 50 feet of an intersection; and

2) a) The person is soliciting, peddling, distributing , etc. OR

b) Conversing or having discourse with a person in a vehicle.

To summarize, in order to have an offense under the new language it must be 1 + 2a or 1 + 2b.

The 1+2b option allows for the ticketing of purely political political protesters. Let's say that health care protesters are downtown at a street corner. They ask motorists stopped to honk if they want health care reform. They're not soliciting money or passing out literature. But the political speech is a violation of the ordinance.

Frankly, anyone who went to law school should have quickly spotted this drafting error in the ordinance. I know of three lawyers on the Council, Ryan Vaughn, Bob Lutz, and Barb Malone, all Republicans. I can't believe they are all such bad attorneys that they missed the elementary drafting mistake in the ordinance.

Contrary to Councilor McQuillen's assurances at the committee meeting, even if the panhandling ordinance applied strictly to commercial speech, the odds of it being upheld are hardly certain. Even if it is in the end upheld as constitutional, as McQuillen says it will, the City will be out tens if not hundreds of thousands of dollars in legal fees and expenses defending the ordinance. However, once you factor in the drafting error allowing the ordinance to be applied to political speech, the odds of it being found unconstitutional dramatically increase. If the City loses its defense of the statute, it will be not only have to pay their own attorneys but also the prevailing side's legal expenses.

Most likely, City Legal will farm out the legal work defending the ordinance to Barnes & Thornburg, which will hand the City a sizable six figure legal bill defending the inevitable lawsuit. In the end, the effect of the ordinance will be that politically-connected lawyers make hundreds of thousands of dollars defending the ordinance while the effect the ordinance has on panhandling is minimal at best.


Downtown Indy said...

Will we now see tag-team beggars? I mean one where the 'solicitor' is standing way-y-y off the corner, perhaps 51 feet farther up the interstate ramp, and the 'collector' is standing down at the corner, signless.

Or maybe they'll just prop up a blanket, sheet, trash can or large box so people can throw their change at it while the 'solicitor' stands at a 'legal' distance.

I would guess the answer is 'yes.'

Anonymous said...

How 'bout someone stopping at a corner and asking a passerby for directions from the car? I did that last week.

So now if a pedestrian offers to assist a lost driver, the pedestrian may face an investigation by a cop to determine the nature of the conversation?


Blog Admin said...

I can't wait for those McDonald's located at corners of stop lights to all get ticketed for having a drive through.

Patriot Paul said...

It isn't just 'political' speech. A woman passing out 'Jesus Saves' tracts or commercial speech when the local pizza place sends out a guy to distribute leaflets on the special of the day.

Paul K. Ogden said...

Shorebreak, actually that could be illegal too. If you are within 50 feet of an intersectiona and your communicating with someone in a car, No. 2 could be used. It was simply a poor drafting job on the ordinance.

Of course some people would make the argument that the cops won't arrest you for that. I'd rather not leave that discretion up to them.

Anonymous said...

Review Constitutional Law, public forums, acceptable restrictions on speech, content and viewpoint neutral legislation and write article again.

Claudia Beck Treacy said...

Sorry; however, I have to say that these drafters of the ordinance know very well what they do, just as those who wrote the legal justification for torture under the Bush administration.

It is the lawyers who write, all the while, expecting to be challenged and expecting to win.

It is us peons, us idiots,and us "slaves" out here, that are aware of the agenda. I feel the urge to inform them that they (those who craft their controls) are NOT going to win. When all soon comes tumbling down upon them,all the lawyers in the world will not be able to help them, for the lawyers too will likely be running with the people...the former slaves.

George Herbert Walker Bush, said it best,IMO,... that when the people find out what we have done, they will hang us from the tallest lamp post.

We are dealing in the realm of TREASON, folks, and they do know what the punishment is for treason. It is that their arrogance stands in the way of their ability to reason.

Look it up in Black's Dictionary, to refresh your knowledge. I realize this term is not something we use lightly or every day.

Blog Admin said...


Sure, we'll get right on that. Or you could do it yourself, and tell us why this ordinance is constitutionally sound.

I just thought it's fairly hard for something to protect free speech without some sort of political free speech clause.

Crossed said...

So that would include ticket scalpers, eh "ticket resellers" then?

Paul K. Ogden said...

Anon 12:38 pm, I'm sorry to tell you but the free speech clause and how it has been interpreted (including the relevant cases) is one area I am extremely knowledgeable about. I even teach about the subject when I cover the First Amendment. You might enroll in my class. Might learn something.

Paul K. Ogden said...

Anon 12:38 pm,

I would further point out that I also handled several free speech cases and spent 3 1/2 years clerking at the Court of Appeals where I wrote cases interpreting the First Amendment as well as Indiana's version of the Free Speech Clause.

Anonymous said...

You're correct, Claudia. The trick has been to push lots of small buttons that cause upset rather pushing big buttons that will create revolt. We are incrementally losing our Constitutional rights via bits and pieces of legislation, laws, ordinances, orders, and provisions at all levels of government.

To demonstrate how far we've fallen I often like to contrast the differences between life in a US city v. life in a communist state prior to the fall of the iron curtain. Yugoslavia is a good example, where they practiced soft communism under Tito as opposed to the murderous Stalinist or Maoist forms of inhumanity. I'll give an example:

On my first visit to communist Yugoslavia, one of the things that stood out most to me was the way traffic operated: It was orderly, but it was also "anything goes" in terms of how you could drive. As long as you weren't being an idiot, the police didn't care what you did. For example, our driver couldn't find a parking spot so he drove to the end of the block and parked on the sidewalk, leaving enough room for pedestrians to pass by. No big deal and no tickets.

I was there once over a Christmas holiday and the friends I was staying with broke out the guns and fireworks as part of the midnight celebration. They joined the rest of the community in firing their guns into the air, lighting fireworks, and basically doing all kinds of things that would lead to mass arrests in the US. And this was not a lawless community. It was safe, modern, vibrant, and friendly.

There are many more differences, but the point I'm making is that although they lived under communist rule, the people weren't nickled and dimed with laws and potential violations that intruded upon almost every aspect of their life. As much as I disagree with communism and it's dominance over people's lives, daily existance in the former Yugoslavia was actually easier and more relaxed than in the US.

I'm not defending or promoting communism. Far from it. My example demonstrates that we've incrementally been subjected to so many laws, ordinances, and legal requirements that we risk being singled out at every turn if we aren't being thoughtful and careful about the way we conduct ourselves as we make our way through each day. We call ourselves free, but we're not.

...not to mention the fact that we can't live a productive life without paying rent to the government rent on our property, and handing over a sizeable percentsge of our earnings for funding that we may be dead set against supporting, without risk of losing our property, our liberty, or both if we refuse to comply.

I don't call that liberty. Heck, even indentured servants eventually got to keep there land with no tax penalty after seven years, and nobody was reaching into their pockets to take a piece of their income once the servitude period was over. We get no such tenure. In our case, if we want to work and own a property, the servitude is permanent.