Fayette County

A right to beg? Lexington’s panhandling ban goes to Supreme Court this week

Dennis Champion was arrested in December 2014 for violating the city’s panhandling ordinance. The state Supreme Court will hear oral arguments Friday on whether Lexington’s ban on begging violates the First Amendment.
Dennis Champion was arrested in December 2014 for violating the city’s panhandling ordinance. The state Supreme Court will hear oral arguments Friday on whether Lexington’s ban on begging violates the First Amendment.

Dennis Champion stood at the corner of New Circle and Georgetown roads around rush hour on the night of Dec. 8, 2014, holding a homemade sign asking for money.

He was arrested and charged with violating the city’s panhandling ordinance, which bans begging on all Lexington streets and at intersections.

People asking for money downtown and on major intersections such on New Circle and Georgetown roads has become increasingly common in Lexington, police records show. And so have arrests.

In 2015, 325 citations were issued for panhandling, according to Lexington Police records. From Jan. 1 to Sept. 28, Lexington police have received more than 1,000 complaints about panhandling.

On Friday, the state Supreme Court will hear arguments on whether Champion and other panhandlers have a legally protected right to ask motorists and pedestrians for money and if Lexington’s city-wide ban violates panhandlers’ First Amendment right to free speech.

Similar city-wide bans on begging and panhandling that have been challenged in federal courts have been found unconstitutional. Many of those decisions came after a U.S. Supreme Court decision in July 2015 that further clarified First Amendment law. That decision said that governments that regulate speech based on what is said —content-based speech — must show a compelling government interest in order to do so.

“The majority of cases where panhandling bans are city-wide, there has been no compelling state interest to justify a ban on panhandling,” said Tristia Bauman, senior attorney for the National Law Center on Homelessness and Poverty, which has tracked the increase in the number of cities passing ordinances advocates say criminalize homelessness and poverty. A 2015 National Law Center report showed that 24 percent of cities have imposed city-wide bans on begging in public and 76 percent of cities prohibit begging in certain areas of the cities — such as at ATMs.

That’s an increase from a similar survey the nonprofit did in 2011. In the four years between the two surveys, city-wide bans on begging increased by 25 percent and bans on begging in particular places increased by 20 percent.

Cities whose panhandling laws have been ruled unconstitutional include Springfield, Ill.; Grand Junction, Colo.; and Lowell, Mass. Other challenges are currently working their way through the courts, Bauman said.

“We have seen other challenges to ordinances that criminalize homelessness, but it’s the ban on panhandling that we have seen the most legal challenges because of the (2015 U.S. Supreme Court case,)” Bauman said.

Champion’s public defenders first challenged the legality of the ordinance in Fayette District Court and lost. A Fayette Circuit Court judge upheld the District Court’s decision. The current panhandling ordinance was passed in 2007.

The state Supreme Court agreed to hear the case earlier this year. The Kentucky chapter of the American Civil Liberties Union has also filed a brief in support of Champion’s challenge, arguing the 2015 U.S. Supreme Court case makes it clear that city-wide bans on begging are unconstitutional.

But more is at stake than just Lexington’s panhandling law. At issue is also whether local governments have the authority to pass ordinances that include jail time as a possible punishment.

In briefs before the court, Champion’s lawyers argue a state statute says only the General Assembly has the authority to determine which crimes are punishable by jail time, wrote Linda Horsman, an appellate attorney for the Department of Public Advocacy, which represents Champion.

But the government argues that another state statute gives Lexington and other local governments that authority.

Jason Rothrock, a lawyer with the Fayette County Attorney’s office, argued in court documents that there is another statute that gives local governments the authority to make violations of their ordinances punishable by a criminal fine, imprisonment or both. Rothrock argued the statute that gives local governments that authority prevails.

Local authority to pass ordinances that resulted in jail time came up before in a 2014 state Supreme Court case, and the vote was close.

Three of the seven state Supreme Court justices said in a 2014 decision that they did not think that local governments have the legal authority to pass ordinances that resulted in a punishment similar to a misdemeanor crime. That case involved a Jefferson County dangerous dog ordinance.

In an interview, Horsman said that if the state Supreme Court decides that local governments do not have the authority to pass ordinances that result in jail time or criminal fines, other ordinances that could be in question include some cities’ noise ordinances or some city and countys’ animal cruelty ordinances.

In court documents, Horsman also argued Lexington’s merged government can not prove there is a compelling state interest that trumps Champion and other panhandler’s constitutional right to free speech. In this case, that First Amendment right is to ask someone else for help.

The merged government can not forward an “interest compelling enough to abridge Mr. Champion’s right to freedom of speech and the ordinance is over-broad.,” Horsman wrote.

But Rothrock, in court documents, argued the prohibition on panhandling on Lexington streets serves a compelling state interest — the safety of motorists and panhandlers alike.

“The LFUCG has a compelling interest in pedestrians not being struck by motor vehicles and it has a compelling interest in the efficient flow of pedestrian and vehicular traffic,” Rothrock wrote.

The ordinance appears not to be a deterrent for Champion, who could not be reached for comment.

According to Fayette County court records, he has been arrested more than 125 times since 2007. Almost all of those charges were related to violating the city’s panhandling ordinance. So far in 2016, he has been arrested 23 times. He typically serves between two and five days in jail for violating the ordinance. He is released and the cycle starts again.

Beth Musgrave: 859-231-3205, @HLCityhall

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