Court panel overturns dismissal of Charlottesville panhandling suit - The Daily Progress: News

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Court panel overturns dismissal of Charlottesville panhandling suit

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Posted: Thursday, February 21, 2013 10:15 pm | Updated: 11:42 am, Fri Feb 22, 2013.

Five homeless men who challenged a Charlottesville ordinance prohibiting panhandling along part of the Downtown Mall will have their day in court after all, a federal appeals panel ruled Thursday.

The Fourth Circuit Court of Appeals reversed a decision by U.S. District Judge Norman K. Moon last month to dismiss the suit before giving the men a chance to make their case against the ordinance as a violation of their First Amendment rights.

Free speech advocates and legal experts welcomed the decision to reopen a case that they say could have far-reaching implications. 

The panel found that Moon overstepped his legal authority by turning to video archives of Charlottesville City Council meetings for information in support of his decision, Judge Allyson Duncan wrote in a 17-page published opinion.

Moon accepted the city's assertion that the ordinance was rooted in concerns for public safety without proof of intent and failed to consider that the measure could be plausibly used to discriminate against panhandlers, Duncan wrote.

"This ordinance was designed to go after the homeless and go after the beggars," said Jeffrey Fogel, who represents the plaintiffs. "If the city's concern was that they were worried about cars veering to avoid hitting people, why didn't they just ban all forms of soliciting?"

At the heart of the disagreement between the five men and city attorneys is whether the rule, which in part prohibits soliciting money or things of value in a specific corridor of the mall, places content-based restrictions on First Amendment rights or attempts to regulate speech in a neutral way.

Richard Milner, who represents the city in the case, called the restrictions fair and unbiased. The ordinance bars soliciting an "immediate donation" within 50 feet of either side of the vehicle crossings at Second and Fourth streets.

"[The rule] applies to all groups of people: Boy Scouts, Girl Scouts, panhandlers, churches — anyone who is asking for a thing of value," he said.

Milner's underlying argument — that Scouts and church workers would be requesting the type of immediate donations targeted in the ordinance — is questionable,  said  Risa Goluboff, a University of Virginia law and history professor who is writing a book on vagrancy.

"What [the rule] seems like it's doing is targeting people, not conduct," Goluboff said. "The courts historically have suggested that this line of thought is problematic."

The distinction speaks to the intent of the ordinance, which is a crucial component of the constitutional argument, said Rebecca Glenberg, legal director at the American Civil Liberties Union of Virginia and co-counsel in the case.

"It's one thing to say that you can't have amplified speech at 11 p.m. in a neighborhood, but its another thing entirely to say that you can't speak about poverty, or race, for example," she said. "When laws are based on the content of the speech the courts subject them to special, heightened scrutiny."

The appeals court found that Moon failed to apply that level of scrutiny. The opinion rejected his conclusion that the ordinance was neutral in its treatment of solicitors, saying that the law "plainly distinguishes between types of solicitation on its face."

The opinion did not go so far as to call the restrictions content-based.

"I'm not a judge, but I think [the plaintiffs] can bring some pretty good arguments to bear that [the ordinance] is," Goluboff said.

The case will return to the federal court in the Western District of Virginia for a hearing. No date has been scheduled as of press time.

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