Archive for January 5th, 2014

by lizard

Something shocked me tonight, and it wasn’t the goddamn Chiefs blowing a 28 point lead to the goddamn Colts. It was this article from the Missoulian describing why our City Council is apparently reconsidering their December vote to amend the Aggressive Solicitation ordinance and Pedestrian Interference ordinance.

What happened?

It wasn’t a change of heart, that’s for sure. Disappearing the incorrigibles from downtown remains the ideal outcome for such carefully crafted ordinances. From statements at the December 16th council meeting, it was clear the potential for court challenges had been taken into consideration, and that a Seattle ordinance served as a court-tested model for Missoula’s ordinance. From the link:

In 1993, Seattle, Washington, enacted an ordinance that forbids lying or sitting down on a public sidewalk, or upon a blanket, chair, stool, or other object between 7 a.m. and 9 p.m. in certain areas of the city. Homeless residents of Seattle alleged due process and First Amendment violations, but the Ninth Circuit upheld the sidewalk ordinance, finding that sitting and lying are not integral to, or commonly associated with, expression. Today, any person lying or sitting on the sidewalk in violation of this ordinance can be fined $50 or be instructed to perform community service. In Cincinnati, Ohio, however, an ordinance that prohibited sitting was found to infringe on a person’s freedom of speech and thus was held unconstitutional by the District Court.

Here’s what happened: a recent court decision in Boise:

On Thursday afternoon, a U.S. district federal court judge ruled the City of Boise cannot enforce much of a new panhandling ordinance while a lawsuit is heard about the city code. The ordinance went into effect the same day.

The ACLU of Idaho, along with other plaintiffs, filed the lawsuit in November in hopes of overturning the city’s anti-solicitation measure, saying the ordinance violates the U.S. and Idaho Constitutions.

The ruling stops the City of Boise from enforcing a portion of its new anti-solicitation ordinance that took effect Thursday. The preliminary injunction will remain in place while the case is litigated.

As written, the code prohibits soliciting in places like public transportation vehicles (like city buses), and within 20 feet of an ATM, bank, sidewalk cafe, food truck, public bathroom, bus stop or taxi. Those are the types of restrictions U.S. District Judge Edward Lodge says the city can’t enforce for now.

Other parts of the ordinance restrict aggressive panhandling and asking for or taking money while standing in the street. Those parts are not part of the judge’s preliminary injunction. The ACLU is specifically challenging restriction of non-aggressive panhandling in public places, saying it is too broad unlawfully restricts freedom of speech.

If the city of Missoula gets sued by the ACLU, they will probably lose. That is why there is a sudden scramble to avoid litigation. From the Missoulian link:

On Friday, Councilman Adam Hertz said he requested the Administration and Finance Committee discuss reconsideration on Wednesday, Jan. 8, and possibly take up the motion at the following Monday’s full council meeting. He said the outcome for Boise raises concerns for Missoula.

“I think we ought to go back and take a look at this before we potentially take on a lawsuit from the ACLU that they already have proven essentially they can win,” said Hertz, who supported the amendments but with reservations. “I think that would be a big waste of taxpayer dollars and government resources.”

Kudos to Hertz for suggesting that council step back and take another look at what has been set in motion by their hasty decision.

Too bad Caitlin Copple wasn’t available for comment.

It’s really unfortunate two supporters of the ACLU—Caitlin Copple and Dave Strohmaier—took votes that essentially set up the city for an expensive lawsuit it probably won’t win. Again, from the Missoulian link:

City Councilwoman Caitlin Copple proposed the ordinance changes in Missoula, but she could not be reached for comment. However, Copple and many other supporters of the ordinance have been strong allies of the ACLU on other matters.

Just three years ago, the ACLU of Montana honored Councilman Dave Strohmaier with a civil liberties award. In this case, Strohmaier said he did not find the ACLU’s legal analysis compelling, but he is interested in seeing the ways Boise’s ordinance compares with Missoula’s.

“It pains me to be on opposite sides of the fence of the ACLU in this particular instance, since I have certainly worked for and supported the causes of the ACLU in the past,” said Strohmaier, an outgoing council member running for the Montana Legislature.

Actually, Dave, it looks like the legal analysis is compelling. What a terrible final vote to make for someone who was specifically rewarded for his positions on civil liberties.

Thanks to this ill-conceived vote the city may get sued and lose. What a great way to spend taxpayer money. And while city council discusses getting sued next week, Missoula County is also preparing for litigation over Fred Van Valkenburg’s obstructionism against the DoJ. Maybe Problembear will have more to say on this one.

It would be great if the city of Missoula (and our Mayor) can admit these amendments were a mistake, and save us the time and money it will take to fight this flawed approach in the courts.

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