Mayor, council grapple with proposed laws that avoid singling out panhandlersBarring unexpected legal findings, people in Colorado Springs will not get back most of the protections they once had against aggressive panhandlers in public places.
The current status took shape last fall, after court decisions - including a fairly detailed one in Denver District Court - and legal threats from the American Civil Liberties Union (ACLU)
Those ordinances will soon be deleted for good, based on draft ordinances that two city staff attorneys presented at the Jan. 11 council work session (which Suthers attended).
“I'd prefer not to be in this position, but we have to respond to the court decisions,” Suthers told council, although he pledged to have attorneys research ways to find legal relief for the general public.
The session was in preparation for a council vote on the ordinance changes at its Jan. 26 meeting.
Citizens do not typically get to speak at work sessions, but an opportunity will be provided before any vote Jan. 26.
The old city laws - most of which had been on the books for many years - prevented overt begging from anyone in the following cases: on a city bus, at a bus stop, at a sidewalk café, in a parking lot or garage, within 20 feet of an ATM or building entrance, in a car in traffic, getting in or out of a parked car, standing in a line or anytime after dark.
Also being removed are city laws denying panhandling on street medians.
All of the above reflect the current legal situation supporting the ACLU's contention that it's illegal to single out panhandling in laws because it's
The attorneys did assert that a few protections can be retained by bolstering the city's Harassment code. Harassment offenses are “content neutral” - meaning they apply to everyone, not just panhandlers, Turner outlined.
Under the changes, the Harassment heading will cover actions such as unwanted touching, physical contact and following someone, as well as “insults, taunts [or] challenges,” the law reads. But anyone complaining about Harassment must show that such actions were done “with intent to harass, annoy, or alarm,” as the law reads.
There are also two protections retained under what's left of the Solicitation Prohibited heading. One is the use of "profane or abusive language" or "approaching or following" someone in a way that could "cause a reasonable person to fear imminent bodily harm or damage to or loss of property or otherwise to be intimidated into giving money or other thing of value." The old laws were simply prohibitions of panhandling acts in the ways listed in the seventh paragraph above.
Suthers expressed particular regret about losing control over panhandling near ATM machines and in public parking garages, because of the potential for “threatening behavior.”
Also aggravating the mayor is the median issue. “We think it is dangerous to stand on medians and panhandle,” Suthers said at council. But based on the court rulings, as summarized by Turner, a city now has to document, through traffic volumes and accident data, that such behavior at specific locations is hazardous.
“We're going to do some research about accidents and things like that and put this in safety terms,” the mayor said.
Much of the work session was spent with Turner and Stein fielding questions from councilmembers about the logic and/or common sense of their proposed ordinance rewrites. In most cases, the attorneys either said their hands were tied or that they could look into the matter - although no new ideas surfaced at the meeting.
Turner offered a general explanation, noting that the Denver District Court ruling overturned laws in Grand Junction, and that city's officials “did not appeal, they settled with the ACLU.” Afterwards, the Colorado Municipal League, of which Colorado Springs is a member, reached a legal consensus; thus, the Springs changes are in keeping with “those being implemented throughout Colorado,” Turner summed up.
Council President Merv Bennett and District 1 Councilmember Don Knight agreed with the mayor about medians becoming a problem. Bennett recounted seeing
Knight said there are conflicting city rules on public median use. He pointed out that the City Planning Department does not allow signs on medians - such as campaign signs when he ran for office - nor people waving ads for businesses. With the ordinance change, “What kind of Pandora's Box are we opening?” he asked.
Knight also decried the city's new inability to disallow panhandling on city buses. Turner said she was drawing on the Denver District Court ruling that it's not a safety issue. But Knight said it makes no sense that the city can disallow panhandling inside the buildings it owns, but not inside its buses.
Another Knight argument addressed the deletion of the law against panhandling from people getting in and out of their cars. He observed that other court rulings have shown that your car “is an extension of your home” - as exemplified by police being restricted from carte blanche searches of people's vehicles. “So if you're entering or exiting your car, I would think you should have some kind of barrier,” Knight said.
Councilmember Keith King added that a person in such a situation, especially a woman faced with “someone standing over you,” would feel alarmed.
However, Turner said the car deletion was based specifically on the Denver decision, which saw no safety issue in such situations.
Councilmember Jill Gaebler was displeased with the lack of legal language protecting people from being followed quietly after rejecting a beggar's appeals. On the face of it, such behavior might fall short of harassment; so “it sounds like it's OK for someone to follow me,” Gaebler said.
In support, King wanted to know why panhandler persistence (asking more than once) could not be defined as menacing under state statutes. But Turner's “takeaway,” as she put it, was that in such a case soliciting would have to be “accompanied by other behavior” that is threatening somehow. And Stein added that a menacing charge requires a “threat to bodily safety,” which is a step up from harassment.
What about someone who feels intimidated and takes action against an aggressive panhandler, such as using pepper spray? Knight asked this question. Stein's reply was that if the case ended up in court, the person doing the spraying would be allowed to testify about their feeling at the time, which could justify the action as an “affirmative defense.”
Also at council's Jan. 11 work session… The body agreed by consensus to move forward with a “pedestrian access” ordinance (formerly called “don't sit/don't lie”).
Like the new panhandling ordinances, this proposed law is scheduled to go up for a vote at the Jan. 26 meeting. It would make it illegal (although warnings would be issued first) to sit or lie anywhere on a public right of way in the downtown or Old Colorado City. (See graphic in this article for the Old Colorado City boundaries).
Tom Strand, the councilmember who has led the effort, including numerous public meetings, said the main reasons for the law are to ensure that rights of way are not blocked for safety reasons and to support flagging “economic vitality” in those two commercial areas. “Some businesses are just hanging on and not making a huge profit,” he said.
To that, Mayor Suthers added that while the city is working with homeless providers on positive steps to remedy long-term issues, “the notion that the homeless need a place to lie or sit on sidewalks is nonsense. There are parks and benches where people can sit or lie down if they want to. Nobody needs to lie or sit and impede access and thereby deter shopping in the downtown or West Colorado Avenue.”
Westside Pioneer article