*CORRECTION: The state and the plaintiffs in an ongoing lawsuit over a section of the state’s amended anti-loitering law are seeking a stay of proceedings while the 8th U.S. Circuit Court of Appeals considers an appeal of a judge’s preliminary injunction blocking enforcement of the law. Attorneys for both sides aren’t asking that the order itself be stayed, as was incorrectly reported in this story and headline. The state continues to be prohibited from enforcing the law.
A new Arkansas law that restricts some begging in public places should remain enforceable while a federal appeals court reviews an order blocking its enforcement, attorneys on both sides of the issue agreed Wednesday.
After the state attorney general's office filed its formal notice that it is appealing U.S. District Judge Billy Roy Wilson's Sept. 27 preliminary injunction, it and an attorney for two panhandlers who are challenging the law filed a joint request to put the ruling on hold for now.
"A stay of this litigation pending resolution of the preliminary injunction appeal will promote judicial efficiency and conserve the resources and time of both the parties and the Court," according to the motion for a stay, filed by Assistant Attorney General Delena Hurst and Little Rock attorneys Bettina Brownstein and Katherine Stephens.
Brownstein and Stephens represent Michael Rodgers and Glynn Dilbeck, on whose behalf the American Civil Liberties Union of Arkansas filed a lawsuit contending the begging ban violates their First and 14th amendment rights. Hurst represents Col. Bill Bryant, director of the Arkansas State Police, who is the sole defendant.
Wilson's preliminary injunction prevents state officials from enforcing part of Arkansas Code Annotated 5-71-213 until a final order is issued. The section in question, (a)(3), was rewritten during this year's legislative session to be more specific, but Wilson said it still violates the U.S. Constitution by prohibiting a certain type of speech: begging.
The ACLU had filed a similar lawsuit in 2016 on behalf of the same two men, taking issue with the previous version of the law, which had been on the books for decades but had never been challenged in court. Wilson issued a permanent injunction in that case, declaring the law blatantly unconstitutional.
The earlier version made it illegal for anyone to "linger or remain in a public place or on the premises of another for the purpose of begging."
The amended version made it illegal to linger "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 a charity or a 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."
Wilson said in imposing the preliminary injunction that he had no doubt that holding a sign on a busy street can create a traffic hazard or impediment, and possibly can cause others to feel threatened, which are valid interests the state can protect. But, he said, the new version of the law still "restricts only a certain species of speech (asking for gifts or charity.)"
By applying only to people seeking charity instead of, for example, people soliciting tax-return customers, promoting religious beliefs or stumping for a political candidate, the section "is a content-based restriction of constitutionally protected speech," his order said.
It also cited the availability of other laws officers can enforce to address the conduct identified in the amended anti-loitering statute, citing laws prohibiting trespassing, harassment and impeding the flow of traffic.
State Attorney General Leslie Rutledge has said she disagrees with Wilson's decision, while Rita Sklar, executive director of the ACLU of Arkansas, called it "a victory for all Arkansans who value their First Amendment rights."
The joint motion filed Wednesday states, "The Eighth Circuit's resolution of this appeal will address several threshold and merits legal issues that (1) may make a trial unnecessary, (2) significantly streamline the factual issues for trial, and (3) provide important guidance to this court and the parties concerning the relevant legal standards on which to adjudicate plaintiffs' claims. And in light of the current preliminary injunction, a stay of proceedings will not harm or prejudice either party."
Police officers testified that the anti-loitering statute hasn't been heavily enforced. Still, Rodgers and Dilbeck said it "chills" their rights by making them fear that they can be cited, as they have been before, and penalized.
Metro on 10/12/2017