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Aggressive Panhandling Ordinance and ACLU CommunicationCity of Dubuque City Council Meeting Action Items # 2. Copyrighted April 18, 2022 ITEM TITLE: Aggressive Panhandling Ordinance and ACLU Communication SUMMARY: City Attorney providing a demand letter from the ACLU related to the City's aggressive panhandling ordinance, and an ordinance repealing the aggressive panhandling ordinance for review and consideration by the City Council. SUGGESTED DISPOSITION: ATTACHMENTS: Description Staff Memo Ordinance ACLU Letter ORDINANCE Amending City of Dubuque Code of Ordinances Title 7 Police, Fire and Public Safety, Chapter 5 Offenses, Article A General Offenses Suggested Disposition: Receive and File; Motion B; Motion A Public Input Uploaded 4.18.22 Type Staff Memo Ordinance Supporting Documentation Supporting Documentation THE CITY OF DUB E MEMORANDUM Masterpiece on the Mississippi CRENNA M. BRUMWELL, ESQ. CITY ATTORNEY To: Mayor Brad M. Cavanagh and Members of -the City Council DATE: April 14, 2022 RE: Aggressive Panhandling Ordinance ACLU Communication Attached is a demand letter from the ACLU related to the City's Aggressive Panhandling Ordinance, demanding a repeal of the ordinance. First, I'd like to communicate that this letter is the first communication I've ever received from the ACLU on this issue, and it was a carbon copy of the letter sent to the Mayor and City Council sent to the general email for my entire office. The ACLU didn't reach out to the City Attorney's Office specifically in advance of sending this demand to ask the City's position on the ordinance. Second, the ordinance was enacted in 2009, which was prior to the U.S. Supreme Court decision in Reed vs. Gilbert. Reed vs. Gilbert was decided in 2015 and has been a much more expansive decision than originally expected related to municipal regulation of speech and implicating panhandling regulations. Third, since its passage, I can find no records that the City has ever issued a citation under the ordinance. Fourth, if the ACLU had contacted me prior to sending their demand letter, I would have told them I agree with most of their analysis and would have suggested a joint recommendation/action asking the Council to repeal the ordinance. Finally, attached is an ordinance repealing the aggressive panhandling ordinance for review and consideration by the Council. Thank you. cc: Michael C. Van Milligen, City Manager Jeremy Jensen, Chief of Police Prepared by: Crenna M. Brumwell, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563 589-4381 ORDINANCE NO. 17-22 AMENDING CITY OF DUBUQUE CODE OF ORDINANCES TITLE 7 POLICE, FIRE AND PUBLIC SAFETY, CHAPTER 5 OFFENSES, ARTICLE A GENERAL OFFENSES NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Title 7, Chapter 5, Article A is amended by repealing Section 7-5A-17 Aggressive Panhandling Prohibited. Section 2. This ordinance shall take effect upon publication. Passed, approved, and adopted this 18th day of April, 2022. P% ���� . • ..Mayor Attest: Adrienne N. Breitfelder, City Clerk 1 Iowa 505 Fifth Avenue, Suite 808 Des Moines, IA 50309-2317 www.aclu-ia.org April 5, 2022 Delivered via email to City Council members at the following addresses: riones e,cityofdubuque.org, dresnickkcityofdubuque.org, sfarber e,cityofdubuque.org, lroussell@cityofdubuque.org, dsprankkcijyofdubuque.org, bcavana hg na�,cityofdubuque.org CC: Dubuque City Attorney Office cityattorneykc ityofdubuque. org RE: Dubuque Municipal Code Aggressive Panhandling Prohibited Ordinance, § 7-5A-17 Dear Councilpersons: I am writing on behalf of the ACLU of Iowa regarding Dubuque's Municipal Ordinance § 7-5A-17, prohibiting "Aggressive Panhandling" ("the Ordinance"). DUBUQUE, IA MUN. CODE § 7-5A-17 (2009), https://codelibrga.amlegal.com/codes/dubuqueia/latest/dubuque_ia/0-0-0-3206. Since the 2015 landmark decision of Reed v. Town of Gilbert, courts around the country have repeatedly found that panhandling ordinances —including some "aggressive panhandling" ordinances with features similar to the ones in Dubuque ("the City") —violate the First Amendment. See Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015); Rodgers v. Bryant, 942 F.3d 451, 453 (8th Cir. 2019); see e.g., Norton v. City of Springfield, Ill. 806 F.3d 411 (7th Cir. 2015); Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014), vacated, 576 U.S. 1048 (2015), declaring ordinance unconstitutional on remand, 144 F.Supp.3d 218 (Mass. Dist. Ct., 2015); McCraw v. City of Oklahoma City, 973 F.3d 1057, 1067-70 (10th Cir. 2020), cent. denied 141 S.Ct. 1738 (2021). By 2019, courts had struck down more than 70 anti -panhandling ordinances. Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities, NAT'L LAW CTR. ON HOMELESSNESS AND POVERTY 80 (2019), https://homelesslaw.org/wp- content/uploads/2019/12/HOUSING-NOT-HANDCUFFS-2019-FINAL.pdf (hereinafter "Housing Not Handcuffs"). And this number continues to rise, with many cities ceasing enforcement or repealing their ordinances. Cities across Iowa have already repealed their unconstitutional panhandling/solicitation ordinances. For example, following notification letters from the ACLU of Iowa, the cities of Des Moines and Council Bluffs, repealed their ordinances in 2018; Grimes partially repealed its ordinance at that time. Des Moines City Council repeals city s panhandling ordinances, Des Moines Register (Oct. 8, 2018), https://www.desmoinesregister.com/stoly/news/2018/10/08/des- moines-city-council-votes-repeal-panhandling-ordinance-poverty-aclu-iowa-grimes-council- bluffs/1568657002/; Bluffs council votes to repeal panhandling ordinance, World Herald News Service, (Sept. 27, 2008), https:Homaha.com/eedition/sunrise/articles/bluffs-council-votes-to- repeal-panhandling-ordinance/article_702ed5b2-9660-55ce-a44e-e4cdeba05f8c.html. More recently, the city of Grimes has now also fully repealed a similar panhandling/solicitation ordinance. (See Ex. 1). Like the ordinances in these other Iowa cities, Dubuque's Ordinance is not only a facially content -based restriction on free speech protected by the First Amendment to the United States Constitution and the Iowa Constitution, but it is also harmful and ineffective public policy. Numerous examples of better alternatives now exist which the City could draw on. We are asking the City to promptly repeal the Ordinance and instead consider more constructive alternatives. Enforcement of the Ordinance risks potential litigation. Importantly, when it comes to "aggressive panhandling" the City can instead regulate the criminal behavior it is concerned about. It need not, as this Ordinance does, restrict the content of the speech that may accompany that behavior an element of the offense. The First Amendment protects requests for charity in a public place. See, e.g., United States v. Kokinda, 497 U.S. 720, 725 (1990) ("Solicitation is a recognized form of speech protected by the First Amendment."). The government's authority to regulate such public speech is exceedingly restricted, "[c]onsistent with the traditionally open character of public streets and sidewalks." McCullen v. Coakley, 576 U.S. 464, 476 (2014) (quotation omitted). As discussed below, the Ordinance is well outside the scope of permissible government regulation. The Ordinance is an impermissible content -based restriction. The Ordinance is an impermissible content -based restriction, as it overtly distinguishes between types of speech based on "subject matter ... function or purpose." Reed, 567 U.S. at 156; see e.g., Norton 806 F.3d at 412-13 ("Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification."). In 2019, the Eighth Circuit Court of Appeals affirmed the grant of a preliminary injunction to plaintiffs "challeng[ing] an Arkansas anti -loitering law that bans begging in a manner that is harassing, causing alarm, or impedes traffic." Rodgers v. Bryant, 942 F.3d 451, 453 (8th Cir. 2019). The Eighth Circuit determined that the law was a content -based restriction because "it applie[d] only to those asking for charity or gifts," and thus "its application depend[ed] on the `communicative content' of the speech." Id. at 456 (quoting Reed, 576 U.S. at 163). Likewise, the City's Ordinance regulates a particular form of speech —"any request for or solicitation of an immediate donation of money." § 7-5A-17(B). As a result, a court will very likely determine that the Ordinance is a "content -based" restriction on speech that is presumptively unconstitutional. See Reed, 576 U.S. at 163. Courts use the most stringent standard —strict scrutiny —to review such restrictions. Id. (holding that content -based laws may only survive strict scrutiny if "the government proves that they are narrowly tailored to serve a compelling interest."). The Ordinance cannot survive strict scrutiny because there is no evidence to demonstrate it is narrowly tailored to the interests it is purported to serve. Theoretical discussion is not enough: "the burden of proving narrow tailoring requires the [municipality] to prove that it actually tries other methods to address the problem." Reynolds v. Middleton, 770 F.3d 222, 231 (4th Cir. 2015). The City may not "[take] a K sledgehammer to a problem that can and should be solved with a scalpel." Browne v. City of Grand Junction, 136 F. Supp. 3d 1276, 1294 (D. Colo. 2015) (holding ordinance restricting time, place, and manner of panhandling was unconstitutional). The stated purpose of the Ordinance "is to ensure unimpeded pedestrian traffic flow, to maintain and protect the physical safety and well-being of pedestrians, and to otherwise foster a safe and harassment free climate in public places." § 7-5A-17(A). However, there is no evidence as to how the Ordinance would further Dubuque's interests. Assuming that the purposes would be considered compelling, the Ordinance could not pass intermediate scrutiny, let alone strict, because it is only supported "by mere speculation or conjecture," and "burden[s] substantially more speech than necessary." Edenfield v. Fane, 507 U.S. 761, 770 (1993); Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). Similar to the ordinance struck down in Thayer v. City of Worcester, this Ordinance only targets the listed conduct connected with requests for immediate donations. 144 F.Supp.3d 218, 228-29 (D. Mass. 2015). The Thayer court pointed out that the ordinance prevented solicitors from blocking certain entrances and exits, but did not, for example, prevent a person from "engag[ing] in political advocacy" in those locations. Id. at 227. Dubuque's Ordinance likewise prevents panhandlers from soliciting at locations such as bus stops or outdoor dining, but does not prevent other types of speech in such places. § 9.08.080. This focus suggests Dubuque speculated that those experiencing poverty and homelessness were more likely to be aggressive. Such prejudice indicates the true purpose of the Ordinance is to specifically limit begging. Besides appearing to be based on mere speculation, the Ordinance is underinclusive because it targets only solicitations for immediate donations of money. In Rodgers, the Eighth Circuit held that because the law regulated only charitable solicitations accompanied with certain actions, and not "political or commercial" solicitations similarly expressed, the law was underinclusive and therefore not narrowly tailored. 942 F.3d at 457. The Eighth Circuit held that the plaintiffs were likely to prevail in their First Amendment claims because the government offered no explanation why it "single[d] out charitable solicitation," when the actions regulated are "equally dangerous," no matter the content of the speech. Id. Because Dubuque makes a similar content -based distinction in its Ordinance, this focus suggests prejudice against people experiencing homelessness and poverty rather than a concern for public safety. Like the government in Rodgers, Dubuque cannot justify the content -based distinction targeting solicitations for immediate donations of money. The Ordinance includes a ban on speech that does not threaten public safety and does not create a captive audience. The Ordinance is also overinclusive in that it regulates speech that does not pose a threat to public safety. On remand from the U.S. Supreme Court to make a decision in accordance with Reed, the Thayer court examined the aggressive panhandling ordinances in McLaughlin v. City of Lowell and Browne v. City of Grand Junction. 140 F.Supp.3d 177 (D. Mass. 2015); 136 F.Supp.3d 1276 (D. Colo. 2015). Both McLaughlin and Browne dealt with "almost identical" aggressive panhandling ordinances to the one at issue in Thayer, and the courts in both cases struck down the ordinances for not being the "least restrictive means." Thayer, 144 F.Supp.3d at 235-36. Using the reasoning from McLaughlin and Browne, the Thayer court also struck down the Worcester ordinance. Id. at 237. 3 Similar to the ordinances in McLaughlin, Thayer, and Browne, the City's Ordinance targets "coercive panhandling techniques," such as "continuing to solicit ... a person after that person has refused." 140 F.Supp.3d at 183; § 7-5A-17(B)(1). This would include a panhandler merely "seek[ing] to explain [why] the [money] is needed" after being rejected, or calmly following a person for a short time at a reasonable distance and in a nonthreatening manner to "convey a longer message." McLaughlin, 140 F. Supp.3d at 193. Neither situation actually threatens public safety, but the Ordinance forbids such actions and thereby limits "explanations of the nature of poverty[, which] sit at the heart of what makes panhandling protective expressive conduct in the first place." Id. The Ordinance also bans solicitations "in a situation in which it is obvious to a reasonably prudent person that the person being solicited would not feel free to immediately walk away." § 7-5A-17(A)(7)). Normally when confronted with speech that "offends [his] esthetic, if not [his] political and moral, sensibilities," the unwilling listener has "the burden ... to `avoid further bombardment of (his) sensibilities simply by averting (his) eyes."' Erznoznik v. City of Jacksonville, 422 U.S. 205, 210-11 (1975) (quoting Cohen v. California, 403 U.S. 15, 21 (1971)). Under the captive audience doctrine, the U.S. Supreme Court has "sparingly" allowed regulation of protected speech where "the degree of captivity makes it impractical for the unwilling [listener] to avoid exposure." Snyder v. Phelps, 562 U.S. 443, 459 (2011); Erznoznik, 422 U.S. at 209. The plurality in Lehman v. City of Shaker Heights explained that "` [t]he streetcar audience is a captive audience [because i]t is there as a matter of necessity, not of choice."' 418 U.S. 298, 302 (1974) (quoting Public Utilities Comm'n v. Pollak, 343 U.S. 451, 468 (1952) (Douglas, J., dissenting)). In his concurrence, Justice Douglas used the example that a person at a restaurant is not sufficiently captive because she may "get up and leave" if she "hears disquieting or unpleasant programs in [such a] public place[]." While the captive audience doctrine may in theory support a ban in very specific circumstances, this Ordinance sweeps too broadly in including locations without regard to public safety. See Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530, 541-42 (1980) ("[T]he First Amendment does not permit the government to prohibit speech as intrusive unless the `captive' audience cannot avoid objectional speech."). The Ordinance lists a bus stop as an example of such a situation, but just because a solicited person "find[s] it difficult to leave," does not mean the solicitation is "demonstrably more dangerous." McLaughlin, 140 F. Supp.3d at 195. As the Supreme Court explained, the fact that a listener on a sidewalk cannot "turn the page, change the channel, or leave the Web site" to avoid hearing an uncomfortable message is "a virtue, not a vice." McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014); R.A.V v. City of St. Paul, Minn., 505 U.S. 377, 386 (1992) ("The government may not regulate use based on hostility —or favoritism —towards the underlying message expressed."). In holding the Worcester ordinance failed strict scrutiny, the Thayer court agreed with the analysis of McLaughlin that the ordinances were duplicative of state assault laws already sufficiently targeted the behavior. Id. at 236. The McLaughlin court cited R.A. V. v. City of St. Paul to find the Lowell ordinance subjected panhandlers to "increased liability" for "engag[ing] in particular expressive acts," even though Lowell had not "demonstrate[d] that public safety require[d] harsher punishments for panhandlers." 140 F.Supp.3d at 193 ("R.A. V. instructs that where a law prohibits behavior on the basis of expressive content —even if the underlying behavior may be prohibited constitutionally or already is prohibited —the decision to create an additional 4 content -based prohibition must satisfy strict scrutiny."). This Ordinance prohibits a panhandler from "touching ... the solicited person," and also from panhandling in a way "that would cause a reasonably prudent person to feel threatened, intimidated, or fearful." § 7-5A-17(B)(1); § 7-5A- 17(B)(6). Like in Thayer and McLaughlin, existing laws already prohibit this behavior, but do so without regard to protected speech. See IOWA CODE § 708.1 (2020). It does not further the City's legitimate interests to subject people experiencing poverty and homelessness to harsher punishments for assault based on the content of their speech. The Ordinance is harmful and ineffective public policy. The Ordinance is also ineffective and harmful public policy. Harassing, ticketing, and/or arresting people who ask for help in a time of need is inhumane and counterproductive. Unlawful anti -panhandling ordinances such as Dubuque's Ordinance are costly to enforce and only exacerbate problems associated with homelessness and poverty. Numerous communities have created alternatives that are more effective and leave all involved —homeless and non -homeless residents, businesses, city agencies, and elected officials —better positioned in the long run. See generally, Housing Not Handcuffs. For example, Philadelphia, PA recently greatly reduced the number of homeless persons asking for change in a downtown subway station by donating an abandoned section of the station to a service provider for use as a day shelter. See Melissa Romero, Suburban Station to Open Permanent Service Hub for the Homeless, CURBED PHILA. (Oct. 16, 2017), https://philly.curbed.com/2017/10/16/ 16481552/suburban-station-hub-of-hope-homeless- services; See also Nina Feldman, Expanded Hub of Hope Homeless Center Opening Under Suburban Station, WHYY (Jan. 30, 2018), https://whyy.org/articles/expanded-hub-hope- homeless-center-opening-suburban-station/. In opening the Center, Philadelphia Mayor Jim Kenney emphasized: "We are not going to arrest people for being homeless." Expanded Hub of Hope. Programs like Project HOME'S Hub of Hope are how cities solve the problem of homelessness, rather than merely attempting to suppress evidence of it. In December 2020, Police Chief Mark Dalsing wrote to Dubuque's housed citizens, requesting that they exercise compassion for their unhoused neighbors. Mark Dalsing, Opinion, Being Homeless Isn't a Crime, TEL. HERALD (Dec. 17, 2020), https://www.telegraphherald.com/news/opinion/article_6c6eO5 l 3-b l 50-5460-aa65- 4272f3645f5c.html. Chief Dalsing wrote his request because of the amount of calls Dubuque Police received "every year about people who have done nothing but be homeless." Id. He emphasized that "panhandling is not illegal in Dubuque," and "[w]hat is illegal is aggressive panhandling." Id. Although we commend the compassionate spirit of his plea, and Chief Dalsing attempted to differentiate panhandling and aggressive panhandling, his letter demonstrates the animosity people experiencing homelessness in Dubuque face and supports the conclusion that the Ordinance is meant to criminalize homelessness. He requested Dubuque residents not call the police if a person is "simply holding a sign asking for help," but said to "please call" if a person was panhandling "at bus stops ... or within 50 feet of an ATM." Id. Neither of those situations present a public safety issue yet one is penalized. Chief Dalsing explained that someone "blocking people's movements, following people, or [expressing] other intimidating behavior that may cause apprehension," is violating the Ordinance, however, as discussed above the Ordinance does not pass the constitutional scrutiny applied to content -based restrictions because it is prejudicial, based 5 on mere speculation, and is not narrowly tailored to the City's purported interests. Id. Chief Dalsing is right that "being homeless is not a crime," and it is bad policy to treat as such. The City can support that proposition by repealing the unconstitutional Ordinance. Id. The optimal outcome for all is a Dubuque where homeless people are not forced to beg on the streets. But whether examined from a legal, policy, fiscal, or moral standpoint, criminalizing panhandling is not the best way to achieve this goal. Enforcing outdated anti -begging ordinances whether by means of citations, warnings, or "move -on" orders —unconstitutionally interferes with the speaker's protected free speech rights. Dubuque must place an immediate moratorium on enforcement of the Ordinance and then proceed with a rapid repeal. Dubuque can then develop approaches that will lead to the best outcomes for all the residents of Dubuque, housed and unhoused alike. And in the meantime, police may continue to enforce speech -neutral criminal laws to promote and protect public safety. As you know, successful claims under the First Amendment to enjoin the Dubuque Municipal Code Aggressive Panhandling Prohibited Ordinance will entitle the prevailing plaintiff to attorney's fees and costs, as authorized by 42 U.S.C. § 1988. We have learned that some municipalities may have allowed unconstitutional panhandling/ solicitation ordinances to stay on the books with no intention of enforcing them. Even if that is the case, it is important to remove the unconstitutional ordinance from the municipal code in order to protect residents from constitutional violations, and to protect the city and its officers from liability. Grimes provides a cautionary tale: after the ACLU learned that county officers were enforcing the City's remaining unconstitutional panhandling/solicitation ordinance despite the city's determination not to do so, we contacted legal counsel for the city, which, to its great credit, agreed to repeal the panhandling ordinance to avoid future violations. (See Ex. 1). Had the city not taken the step to repeal the ordinance, it risked officers again enforcing it without realizing it had been determined to be unconstitutional. Dubuque should not take this risk. Dubuque should repeal the Ordinance. Based on the foregoing, we ask Dubuque to take the following actions: 1. Stop enforcing the Dubuque Municipal Code Aggressive Panhandling Prohibited Ordinance, § 7-5A-17. This requires instructing any law enforcement officers charged with enforcing the municipal code that the Ordinance is no longer to be enforced in any way, including by issuance of citations or warnings, or by telling panhandlers to move along. 2. Immediately initiate steps necessary to repeal § 7-5A-17. 3. If there are any pending prosecutions under § 7-5A-17, dismiss those charges. Thank you for your attention to this important matter. I ask that you inform me within 14 days of the date of this letter that you agree to undertake all three actions. G Please contact me with any questions about this matter by phone or email at shefali.aurora@aclu-ia.org. Sincerely, /s/ Shefali Aurora Shefali Aurora Staff Attorney ACLU of Iowa Foundation, Inc. 505 Fifth Ave., Ste. 808 Des Moines, IA 50309-2317 Telephone: (515) 207-0567 Fax: (515) 243-8506 7 Adrienne Breitfelder From: Sent: To: Subject: f This sender is trusted Contact Us Name: Kathy Gukeisen Address: 566 Saint George Street Ward: Phone:5635431774 Email: gukeisen@mchsi.com City Department: City Council Citizen Support Center <dubuqueia@mycusthelp.net> Monday, April 18, 2022 7:51 AM Adrienne Breitfelder "Contact Us" inquiry from City of Dubuque website Message: I see nothing that violates the rights of either party in Dubuque's panhandling ordinance. It is well written and respect's the individual's right to panhandle as well as the rights of the public to not be harassed by panhandlers. There is no reason to let the ACLU intimidate you into changing this ordinance. STATE OF IOWA SS: DUBUQUE COUNTY CERTIFICATE OF PUBLICATION I, Kathy Goetzinger, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: 04/22/2022 and for which the charge is 10.22 S bscribed to be/ore me, a Notary Public n and for Dubuque County, Iowa, this 25th day of April, 2022 62" 1 A- -f� Ile � Notary V s in and for Dubuque County, Iowa. - JANET K. PAPE `. R"4 Commission Number 199559 MY Comm. Exp. DEC it, 2022 Ad text : OFFICIAL PUBLICATION ORDINANCE NO. 17-22 AMENDING CITY OF DUBUQUE CODE OF ORDINANCES TITLE 7 POLICE, FIRE AND PUBLIC SAFETY, CHAPTER 5 OFFENSES, ARTICLE A GENERAL OFFENSES NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Tide 7, Chapter 5, Article A is amended by repealing Section 7-5A-17 Aggressive Panhandling Prohibited. Section 2. This ordinance shall take effect upon publication. Passed, approved, and adopted this 18th day of April, 2022. /s/Brad M. Cavanagh, Mayor Attest: /&/Adrienne N. Breitfelder, City Clerk Published officially in the Telegraph Herald newspaper on the 22nd day of April, 2022. /s/Adrienne N. Breitfelder, City Clerk It 4/22