Wednesday, August 26, 2009

The Legal Cost of the Panhandling Ordinance

Matthew Tully pens a column this morning in which he discuss panhandling and the need to consider the very serious concerns on both sides of the issues. It is a sentiment I agree with. This is one of those issues where there is very legitimate concerns on both sides.

I came away from the debate though unconvinced that the laws on the books are somehow inadequate. Most of the examples cited by councilors and members of the public in support of the ordinance were of things that were already illegal under existing law. Timothy Maguire, chairman of the Marion County Libertarian Party, did an excellent job of questioning whether there was an actual need for a new law when existing laws are being underenforced.

One thing I think councilors fail to appreciate is the legal cost that will be involved in defending this ordinance in court. There is a flawed portion of the ordinance which if it passes as is, would prohibit people from being within 50 feet of an intersection and engaging in political speech with motorists. For example, someone on a sidewalk encouraging people to honk the horn if they oppose the abortion could be covered by the ordinance. While the ordinance is clearly aimed at panhandling which is not strictly political speech, the flaw in the drafting of the ordinance would allow it to be applied to verbal political speech.

Even setting aside that possible and likely unconstitutional application to political speech, the panhandling ordinance itself rests in a very gray area of the law. The Courts have overwhelmingly held that panhandling is speech that is deserving of some protection. The decisions require that the ordinance be: 1) narrowly tailored to 2) serve a significant government interest; and 3) that there be alternative methods of communications. These are very fluid concepts that are decided on a case by case basis. There is no black and white when it comes to whether an ordinance like this would be found unconstitutional. No one knows.

What does this mean? It means that the City will inevitably spend tens if not thousands of dollars in court defending the constitutionality of the ordinance. If the City uses City Legal to defend the ordinance and City Legal prevails, $50,000 would be a good estimate of the amount spent defending the lawsuit. If, as quite possible, the City hires a big, politically-connected company to defend the lawsuit, such as Barnes & Thornburg, you could be talking $300,000 in legal fees for the City. Should the Plaintiff prevail, because it is a constitutional claim, the law requires the City to pay the Plaintiff's attorney's fees. Now you're talking about the cost of defending the ordinance approaching half a million dollars.

Councilors should be calculating what the ultimate cost of the ordinance will be (with legal expenses considered) and whether passing such an ordinance is worth it. Is it really worth passing such an ordinance if it costs $1,000 per panhandler cited under the ordinance? One can be totally in favor of the ordinance and conclude that the cost of the ordinance is simply not worth it when you consider what little the ordinance probably accomplishes.


varangianguard said...

As a body politic, the City-County Council has a historic tradition of crafting ordinances that are generic enough to allow for capricious enforcement above and beyond the original intent and envisioned scope.

Is this intention, laziness, or incompetence in action?

Depends on who is doing the asking, and who is doing the answering.

And, although I believe such behavior to be intentional, none of the assumed reasons have the best interests of the citizenry in mind.

Patriot Paul said...

One wonders if all police will start carrying a 50' measuring tape or whether the city will just red line the sidewalks. Of particular notice in Tully's Star commentary is the reference to author, McQuillen, noting "the proposal does not solely target panhandlers. The ordinance would prevent anyone-kids selling car washes, people holding political or going-out-of-business signs, and more- from begging for bucks or selling their messages within 50feet of an intersection."

Unigov said...

Indy has a law on its books that prohibits me parking my car on my property with a For Sale sign on it. Similar laws have been thrown out across the US as unconstitutional infringements on free speech.

The law is absolutely unconstitutional, and the city has to be aware of this, but there it is.

The city has a law saying you can't sell a golf ball within 500' of a city golf course. would shoot this down easy.

The IHPC thinks it can rezone land, but it cannot, not according to the city code. The IHPC does rezone land when it meets its whim.

My point is the city has little idea what's legal and what's not.

As for panhandlers - they should be in a poor house, not on the street.

Wilson46201 said...

I looks like it'd be illegal for a fat yellow chicken to stand at a street corner with a BART LIES sign...

Paul K. Ogden said...

Wilson, actually holding the sign would not be illegal under the proposed ordinance. However, if he verbally says "Bart Lies" to people in their cars at that intersection, that would be illegal. That's a flaw in the drafting of the ordinance.

Wilson46201 said...

No clucking allowed, eh?

Patriot Paul said...

You might want to double check that. The new re-amended amended proposal says oral or written.