Panhandlers in Lexington can now ask for spare change without fear of being arrested.
The Kentucky Supreme Court struck down Lexington’s panhandling ordinance Thursday, saying the ban violated the First Amendment.
In a unanimous decision, the court ruled that a 2007 Fayette County ordinance prohibiting begging and soliciting on public streets or intersections is unconstitutional because it singles out a particular type of speech — begging — for criminal prosecution based on its content — a plea for help.
“Only citizens seeking financial assistance on public streets and intersections face prosecution,” wrote Chief Justice John D. Minton Jr. in the decision. But those who are exercising free speech at public intersections such as a person holding a sign that says “‘Jesus loves you’ or one that says ‘Not my president’ has no fear of criminal liability under the ordinance,” Minton wrote.
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Regulating speech based on its content is clearly unconstitutional, according to a 2015 U.S. Supreme Court decision, the state Supreme Court ruled in its 14-page decision.
The case stemmed from the 2014 arrest of Dennis Champion, who has been charged more than 100 times with panhandling. The decision directed that the case against Champion be dismissed.
Similar citywide bans on begging and panhandling that have been challenged in federal courts have been found unconstitutional. Many of those decisions came after the U.S. Supreme Court decision that further clarified First Amendment law. The 2015 decision said governments that regulate speech based on what is said — content-based speech — must show a compelling government interest to do so.
In its decision, the state Supreme Court said the merged government failed to show that there was a compelling government interest — public safety or traffic flow — in its arguments before the court.
“We have been offered no evidence of traffic delays or auto accidents resulting from pedestrians — panhandlers in particular — approaching stopped motorists,” Minton wrote. Champion was cited for holding a sign at Georgetown and New Circle roads in December 2014. The police citation didn’t mention whether Champion approached vehicles.
“Without additional information, we have no proof he even targeted stopped motorists with this speech,” Minton wrote.
But the decision gives Lexington and other cities with similar laws a hint on how to rewrite ordinances so they don’t run afoul of the First Amendment.
“For instance, Lexington could prohibit all individuals from approaching stopped motorists — this more directly targets the behavior the city seeks to alleviate and does so without regard to why an individual steps into traffic,” Minton wrote.
Susan Straub, a spokeswoman for the city of Lexington, said the city can no longer enforce the ordinance. Whether Lexington will enact a new ordinance in line with what the Thursday decision suggested has not been decided, she said.
“With people asking for help at our intersections, safety has always been our primary concern,” Straub said. “We will carefully examine options and work on a strategy that puts safety first for everyone involved.”
Vice Mayor Steve Kay said the Urban County Council will work with the administration to look at the ordinance.
“I expect we will be working with the administration to refine the ordinance that we have,” Kay said. “The intention is to protect the safety of the people who are panhandling and the people they are panhandling from.”
Kay said the city wants to respect people’s rights but also wants to ensure everyone’s safety.
Lexington’s Office of Homelessness Prevention and Intervention has launched a public awareness campaign encouraging people not to give beggars money. Instead, people should direct panhandlers to social service agencies that provide meals and shelter.
“We are encouraging people to think about this in a different way,” Kay said.
Overall, Lexington police issued 327 citations for violating the city’s panhandling ordinance in 2015. From January to Sept. 31, 2016, Lexington police had issued 195 citations, according to data provided by Lexington police.
Timothy Arnold, post-trial division director for the Department of Public Advocacy, said the division was pleased with Thursday’s ruling. The department’s Fayette County office and appellate attorneys successfully argued the case on behalf of Champion. Champion could not be found Thursday for comment.
Arnold said it’s not clear how many Kentucky cities have panhandling ordinances that are similar to Lexington’s. Some might have a panhandling ordinance on the books but choose not to enforce it. A Jefferson County District Court judge struck down Louisville’s aggressive panhandling ordinance in October 2016. In that case, the ordinance was tossed because under Louisville’s ordinance, a person convicted of panhandling could be sentenced to up to 30 days in jail. The judge ruled that only the state legislature can enact laws in which the punishment is imprisonment.
Arnold said it’s not known how many people have pending panhandling charges in Fayette County.
“We know from the Champion case that there are people who are charged repeatedly,” Arnold 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 state Supreme Court agreed to hear the case last year.
Cities whose panhandling laws have been ruled unconstitutional include Springfield, Ill.; Grand Junction, Colo.; and Lowell, Mass. Other challenges are working through the courts.