Missoula’s New City Council Can Stop the Lawsuit Before it Happens

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.

  1. JC

    Damn! I haven’t shaved or cut my hair since I heard the Council was working on the new sit-lie-panhandle ordinance. I was planning on having some real fun on January 17th!

    And to celebrate the 9th Circuit Court’s finding that “sitting and lying are not integral to, or commonly associated with, expression”, I thought a sit-in in the grand tradition of 60’s protest might be in order.

    And I think reviving the art of the sit-in to protest ongoing American wars and state suppression might be worth the effort, particularly if funds from winning a civil suit against the city help to finance it. ;-)

  2. Greg Strandberg

    I guess I should have filed for the City Council – those people are idiots.

    How much time and money will be wasted to go over this again? Incompetence.

    I would have been fired for such a waste of time and resources like this, but I’m sure voters here don’t give a damn.

  3. mike

    Gee, i agree with Greg for once, it’s all about the City Council that spends a lot of time and tax dollars coddling downtown businesses.

    Why should Missoula taxpayers take on more property taxes so the Downtown Improvement scheme pays for flowerpots, trees,awnings etc. If they happen to be good for business they should pay for the improvements. Can we say crony capitaism?

    Should we do stuff like subsisizing the Kmart demolition, no, but the city did, their aim is simply more tax dollars, they don’t care as long as they get more revenue. Ironic that the council progs actions leave the average property taxpayer taking up the slack for subsidized businesses, while claiming progressive. Easy to do when you are giving other people’s money to your new cash cows/derp.

  4. mike

    So riddle me this liz, why should’nt Fred fight the Holder overreach?

    It’s the first time the DOJ has gone after a local prosecuto
    r in this manner, they get zero fed bucks so they have no leverage, unlike the MPD and UM who aquiesced with a whimper and get lots of fed money.

    You bitch about fed gov re the NSA and I am in your corner, bro, yet you think the fed intrusion into our local court system is ok because it fits some narrative you espouse. It’s not one or the other, the growth of the fed is nuts and and a threat to us all, like them hovering around while ignoring fed laws about weed.

    They are choosing to ignore federal laws regarding weed right now in regards to WA and CO, that could change next week with a new poll. You seem to think staism is ok when it’s an issue you agree with, I think expanding fed power is evil no matter which bunch is running the show, neither side is about freedom, they both have things they don’t like and won’t hesitate to put people in jail for shit they don’t like. Fuck the feds in any and every case.

    • Greg Strandberg

      Obama did just get back from Hawaii today and I’m kind of wondering if we might see a concerted raid in CO this week or next.

      Sure doesn’t seem like a way to get his poll numbers up, but who knows – he’s backed into a corner and could do anything.

      But the main problem here is how long does the federal government choose to enforce one policy while letting another go lax? Of course we’ve seen the executive not enforce laws many times.

      I just hope the tactics and policies of fear don’t take over. I’m not holding my breath.

    • Steve W

      Mike, since Fred Van Valkenberg is incompetent, enforces the laws arbitrarily, and he’s a ,hypocrite, I’d say the Feds should have at him.

      Lets give credit where credit is due.

      You seem to believe incompetence and hypocrisy deserves a get put of jail free card.

      I say no thanks.

    • lizard19

      Fred may have a point, and this DoJ thing could be a dangerous precedent, I’ll concede that. but Fred has essentially invited them with how he has run his office.

      mike, I like a variety of perspectives in the comments, and if you are capable of making your late-night comments without crossing lines of calls to violence—like threatening to shoot me—then maybe your comments won’t be removed.

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