The Springfield City Council approved new panhandling restrictions Tuesday, beginning a new chapter in a saga that already saw part of the city’s existing ordinance ruled unconstitutional.
An attorney for the panhandlers who got that ordinance struck down says he’ll definitely fight the city’s new restrictions.
The amendment, which passed unanimously and with little discussion, prohibits panhandlers from touching people or approaching them within five feet while asking for money. It was introduced on Sept. 8 and sailed through the council’s Committee of the Whole without debate on Sept. 15.
Panhandlers Don Norton and Karen Otterson of Springfield filed a lawsuit against the city in 2013 saying the city’s panhandling ordinance which banned vocal appeals for money downtown violated the First Amendment’s free speech protection. After a federal judge in Springfield and a three-member appellate panel in Chicago ruled against Norton and Otterson, the full appellate court overturned part of the city’s ordinance in August, relying on a U.S. Supreme Court Decision released in June.
That decision, Reed v. Gilbert, eliminated the requirement that a plaintiff alleging free speech infringement must show that a governmental body was hostile to the speech in question. Under Reed, plaintiffs must now simply show that the level of regulation depends on the speech’s message. Using Reed as a guide, the federal appellate court found part of Springfield’s panhandling ban unconstitutional because it was based on the panhandlers’ message. The appellate court ordered Judge Richard Mills of the federal Seventh Circuit court in Springfield to issue an injunction barring Springfield police from enforcing the part of the ordinance banning vocal appeals for money downtown.
At the Sept. 8 council meeting, Springfield mayor Jim Langfelder said he requested the ordinance to give police more specific parameters for dealing with panhandlers. It’s especially geared toward helping police interpret the city’s aggressive panhandling ordinance, which prohibits certain practices like touching someone while asking for money, blocking someone’s path or soliciting someone who is standing in line.
“We need more specification, in my estimation, to define those boundaries of an individual’s personal space,” Langfelder said.
Corporation Counsel Jim Zerkle told aldermen at the Sept. 8 council meeting that he believes the new restrictions will be upheld if challenged in court because previous court cases have upheld the creation of a “personal zone” applying to situations like protesters outside of abortion clinics.
“In looking at various municipal ordinances, we believe we can defend (it), and basically that it is proper to define a personal area of five feet so that a person approaching someone within five feet would be deemed to violate the aggressive panhandling (ordinance),” Zerkle said. “We believe that would be upheld.”
Asked by an alderman during the Sept. 8 meeting how police would enforce the new amendment, Langfelder said the police would rely on complaints, but an increased presence of officers downtown would prevent many such incidents. Zerkle added that, in many cases, having an officer warn a panhandler about aggressive behavior is enough.
Prior to the vote on Tuesday night, Ward 7 Ald. Joe McMenamin referenced the possibility of a new lawsuit, noting that the issue of panhandling is an unsettled area of law.
Mark Weinberg, a Chicago attorney representing Norton and Otterson against the city, says he plans to file a new lawsuit on behalf of the panhandlers against the city. Weinberg’s law partner, attorney Adele Nicholas, notes that they and the panhandlers don’t have any objection to the city’s existing ordinance against aggressive panhandling, but they believe the new amendment goes too far.
Weinberg says the abortion clinic case Zerkle referred to has been superseded by other cases, so he doesn’t believe a court will allow the creation of a personal zone with respect to panhandling. Even if the courts do uphold the concept of a personal zone, Weinberg said, the central issue of government targeting certain speech for stricter regulation still exists under the new amendment.
“There is still a content-based element to the regulation,” Weinberg said. “They’re picking on speech they don’t like and allowing other types of speech.”
Weinberg called it irresponsible and a waste of taxpayer money to pass a new amendment that he believes is going to be struck down. He says he’d gladly negotiate with the city for an ordinance on which both sides can agree.
“I would like to help them pass a restrictive panhandling law that is still constitutional,” he said. “Have them give me a call.”
Contact Patrick Yeagle at [email protected].