City seeks to dismiss panhandlers' lawsuit - The Daily Progress: News

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City seeks to dismiss panhandlers' lawsuit

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Posted: Tuesday, August 9, 2011 4:12 pm | Updated: 2:05 pm, Wed Jan 23, 2013.

Charlottesville has filed a motion in the city’s federal court to dismiss a lawsuit brought against the city by a group of five homeless men. The suit alleges that by restricting the area on the Downtown Mall where it’s acceptable to panhandle, the city has violated the plaintiffs’ First Amendment rights.

The complaint was filed in response to a city ordinance prohibiting panhandling within 50 feet of either side of the 2nd and 4th street vehicle crossings on the Downtown Mall, “aggressive panhandling” and soliciting help from people eating at outdoor cafes on the mall.

The city claims the suit can should be dismissed because the plaintiffs have not been accused of or arrested for any wrongdoing, and the ordinance restricting soliciting is general enough that it doesn’t specifically target panhandlers. According to the motion, the ordinance also restricts people soliciting for charities.

Jeffrey Fogel, who is representing the plaintiffs, said he was surprised that the city would ask to dismiss the case simply because the plaintiffs had not been arrested.

“For the city to say that people should break the law to challenge the law, it’s a threat to law and order,” Fogel said Tuesday. “I wonder what the police chief would say about it.”

The motion to dismiss also says that the plaintiffs’ rights haven’t been impeded by the law, which gives them little legal standing.

“In their Complaint, Plaintiffs do not allege that they solicit in any of the restricted areas and, therefore, do not allege sufficient ‘injury in fact’ to support standing,” the city said in its brief.

According to Fogel, the threat of punishment for panhandling outside the designated areas represents damage to his clients’ rights, even if none of the men have been arrested.

“The bottom line is, have you or will you suffer an injury?” Fogel said. “You don’t need to be arrested to suffer an injury to your rights. If you are in fear of exercising your rights, you have suffered an injury to your rights.”

The city’s brief says that the complaint is illegitimate because the ordinance restricts soliciting to certain areas of the mall without banning it entirely, and does not discriminate among different kinds of solicitation.

“The restriction on requests for immediate donation of money from any solicitor to one in an outdoor or private café to an individual conducting business with a vendor is simply a valid recognition by the City of Charlottesville of the right to be left alone,” the brief said.

In a memo responding to the brief, Fogel said the right to be left alone is being applied unfairly to his clients.

“Charlottesville argues that it is protecting the privacy right to be left alone of restaurant customers and patrons of vendors but fails to explain how holding a sign pleading for help interferes with privacy rights of others while other forms of speech, such as politicians soliciting signatures on a nominating petition, does not,” Fogel said.

According to the city’s brief, the clause in the ordinance that restricts any form of soliciting around car crossings on the mall is valid because it is designed to protect public safety. The protection of public safety, the city said, proves the ordinance is content neutral. Fogel argued that the city doesn’t explain the difference between panhandlers and other distractions along the mall as safety hazards.

“The city fails to explain how attractive signs, including the large photos on display during the Festival of the Photo, or how unusual attire or hairdos, or the wearing of abbreviated clothing, don’t also have the potential to distract drivers,” Fogel said.

The plaintiffs now have two weeks to file a brief in response to the city’s motion to dismiss. The city will then have one week to respond. Once the city’s final response has been made, there will be a hearing on the dismissal, which should happen sometime in mid-September.