Attorneys for the state have asked a federal judge to throw out a recent lawsuit challenging a "more tailored and restricted" version of the state's anti-loitering law.
Earlier this year, state lawmakers revised a section of the law that U.S. District Judge Billy Roy Wilson had thrown out in November as unconstitutional. But the new wording is just as bad, contends a lawsuit filed Aug. 7 by the American Civil Liberties Union of Arkansas.
Late Friday afternoon, Arkansas Attorney General Leslie Rutledge's office asked Wilson to dismiss the latest lawsuit, arguing that a disabled veteran and a homeless man who are the named plaintiffs don't have legal standing to sue under the rewritten section because it hasn't been enforced against them. State attorneys also say the new version isn't vague, and that the federal court should defer to the authority of the state courts to interpret the new wording.
"The Arkansas Supreme Court has not had the opportunity to consider the constitutionality of this more tailored and restricted statute," the filing states. "But a narrow construction by the Arkansas Supreme Court could avoid constitutional concerns in the statute's application."
The ACLU's lawsuit, filed on behalf of Michael Andrew Rodgers, a disabled veteran in Garland County who was cited in 2015 for violating the previous version of the law, and Glynn Dilbeck, a homeless man who was cited in 2015 for holding up a sign asking for money in Benton County, takes issue with Subsection (A)(3) of Arkansas Code Annotated 5-71-213.
It says: "A person commits the offense of loitering if he or she ... lingers or remains on a sidewalk, roadway or public right-of-way, in a public parking lot or public transportation vehicle or facility, or on private property, for the purpose of asking for anything as charity or gift: (A) in a harassing or threatening manner, (B) in a way likely to cause alarm to the other person; or (C) under circumstances that create a traffic hazard or impediment."
Rodgers, who says he is afraid to risk criminal charges for begging as a result of his 2015 citations, contends the section in question "has a chilling effect on his right to free speech." Dilbeck likewise says he is prohibited from begging by a fear of being cited or harassed as he was in 2015.
But neither man has been cited or threatened with a citation for violating the 2017 version of the law, Assistant Attorney General Delena Hurst argued in the motion to dismiss filed Friday.
To establish standing, or a vested interest in pursuing the case, a plaintiff must show that he personally has suffered an actual or threatened injury as a result of the law, but the plaintiffs in this case aren't under prosecution and say they are refraining from engaging in any illegal activity, so they are in no "realistic danger" of being injured by the law, Hurst argued.
Hurst also noted that both men gave sworn depositions in the earlier case showing that they "do not allege that they will act in a harassing or threatening manner or in a way likely to cause alarm to another person," so they have nothing to worry about under the reworked section of the law.
Under the First Amendment, Hurst said, the U.S. Supreme Court has found that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."
The lawsuit argues that the new wording "creates a content-based restriction" on speech by discriminating against people standing or remaining "for the purpose of asking for anything as a gift."
In that way, the ACLU contends, the new version of the law, like the previous version, "criminalizes" asking for help.
The new lawsuit argues, "A solicitation to vote for a candidate, attend a meeting, join an organization or eat at a particular restaurant, delivered in the same manner and tone as that for money or other charity, would not result in citation or arrest under this provision."
But Hurst argued Friday, "Although this Court found that the previous version of the statute was over-broad, Ark. Code Ann. 5-7-213 (2017) is significantly different than Ark. Code Ann. 5-71-213 (1995)."
For comparison purposes, she listed the wording of the old and new versions of the law side by side. The old version applied only to anyone who lingers or remains "in a public place" for the purpose of "begging."
The restricting of the 2017 statute "makes it subject to a narrow and constitutional construction by state courts and requires a finding that it is facially valid as it is limited in time, place, and manner," she argued.
Hurst also argued that the new wording requires a person to engage in conduct that consists of all three elements -- lingering, loitering to ask for charity, in a harassing or threatening manner -- to violate Section (A) (3).
Hurst also argued that several other provisions of the loitering statute provide additional context by including circumstances in which a person can be considered to be loitering. They include "taking flight" upon the appearance of police, refusing to identify himself, or trying to conceal himself or an object.
The new statute also provides two defenses to the charge of loitering, she noted. They are: if the arresting officer didn't afford the defendant an opportunity to identify himself and explain his presence or conduct; and if the explanation given was true and would have dispelled any alarm.
"The simple act of begging in a 'peaceful' manner as described by Plaintiffs in this case would not result in a citation under Ark. Code Ann. 5-71-213 (a)(3) (2017)," Hurst wrote.
Metro on 08/27/2017