After a daylong hearing Tuesday on a newly rewritten section of Arkansas law that applies to panhandlers, U.S. District Judge Billy Roy Wilson told attorneys the issue was "much more complex than I thought it was," preventing him from issuing a ruling immediately.
The American Civil Liberties Union of Arkansas, representing two frequent panhandlers, has asked Wilson to impose a preliminary injunction halting the enforcement of the amended law, which took effect Aug. 1.
The ACLU contends that despite legislators rewriting a troublesome section earlier this year after Wilson found the previous wording unconstitutional last year, the new wording still unfairly subjects panhandlers -- but no one else -- to a criminal violation.
The state contends that the law was carefully rewritten to conform with U.S. Supreme Court precedent, which requires any state laws restricting First Amendment freedoms to be "narrowly tailored" to protect state interests. The state says the law is necessary to protect the populace from harassment and fear, as well as traffic accidents.
Wilson must first decide whether the plaintiffs have legal standing -- a vested interest in the outcome -- to pursue the case. Then he must consider whether the state has a compelling interest in enforcing the law, and if so, whether the law was tailored to provide the least-restrictive means of accomplishing those interests.
He also will decide whether the rewritten section is too vague for police to adequately enforce, or uses terms understood by people of "reasonable intelligence."
If he issues a preliminary injunction halting the enforcement of Arkansas Code Annotated 5-71-213, Section (a)(3), it would apply until both sides can dig up more information to support their perspectives and then present it at a trial months down the road.
Wilson's Nov. 22, 2016, ruling on the previous wording skipped over a preliminary injunction and granted a permanent injunction, noting that the law was clearly unconstitutional. It had been on the books for about 30 years and was only sporadically enforced, but it had never before been challenged.
The previous version of the section made it illegal for a person to "linger or remain in a public place or on the premises of another for the purpose of begging."
Wilson's ruling said that by singling out loitering "for the purpose of begging," the law violated the First Amendment.
The Legislature rewrote the section earlier this year so that it now applies to anyone who "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 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."
Testimony at Tuesday's hearing focused on whether the terms "harassing," "threatening" or "cause alarm" are objective and sufficient to warn potential violators that certain actions could warrant a citation, or subjective and vague, relying on the reaction of third parties.
"What makes one person alarmed doesn't necessarily make another alarmed," said attorney Katherine Stephens of the ACLU. She said it shouldn't be up to the potential violator to make that determination. It's the responsibility of state legislators to clearly define the violation, she said.
Assistant Attorney General Delena Hurst argued that "uncertainty alone" about a term used in a statute doesn't make it unconstitutional when other sources for defining those terms -- like dictionaries -- are available.
Wilson wondered aloud if the definition of harassment can come down to whether "some people have tougher hides than others," but Hurst noted that the anti-loitering law includes exceptions for people who can adequately explain their action to a law enforcement officer when questioned.
Stephens and attorney Bettina Brownstein, also with the ACLU, argued that there are other Arkansas statutes that would address the state's concerns about people being harassed or causing traffic impediments.
A Little Rock police officer and two state troopers testified about their understanding of those statutes and how they differ from the loitering law. They discussed state laws against disorderly conduct, second- and third-degree assault, obstructing traffic, impeding traffic and harassment.
The officers also testified about when they would and wouldn't arrest a panhandler and about problems caused by people who impede traffic either by standing in or alongside a roadway. All three testified that they haven't received any specific instruction or training about the panhandling prohibition -- either in its previous or current form. They just read the law to see if it applies, they said.
One of the plaintiffs, Glenn Dilbeck, 53, testified that he carries a sign reading, "Any Help a Blessing" alongside interstates and on-ramps and off-ramps, as well as center medians in high-traffic areas.
He said he previously panhandled in Northwest Arkansas because his daughter, who has bladder cancer, lives nearby, and he could earn $200 to $250 a day through panhandling, and once -- at Christmastime -- even pocketed $570 in one day.
"I lost two children in 2000 due to a car accident," he said. "I'm going to do whatever it takes to make sure this daughter survives."
Dilbeck testified he once owned a home in Missouri for 23 years and once owned a successful business. And despite his current ties to Arkansas, he said, he moved to Tennessee when Arkansas legislators passed the new law, for fear of being arrested, harassed and losing money. He said Arkansas law enforcement officers tend to show up 15 to 20 minutes after he starts begging, which has resulted in some previous arrests.
"I panhandled to get here today," he said, adding that if not for the Arkansas law, "I would have loved to have gone out yesterday so I could support my trip home."
Dilbeck said he rents a room from an elderly person near Nashville, Tenn., and other times lives in his 1993 Ford van, which he didn't drive to the hearing because he doesn't have a driver's license.
Dilbeck and the other plaintiff, 53-year-old Michael Andrew Rodgers of near Hot Springs, testified that they purposely stay out of roadways and try to appear nonthreatening while panhandling. But Dilbeck said, "There's no way I would know" if his presence scares someone.
"I try to be as polite, courteous and unobtrusive as possible," Rodgers said.
He testified that he seeks out heavy-traffic areas with a parking lot nearby so that if someone wants to put money in a large coffee can he uses as a bucket, they can safely pull over to do so. The smiling man who walks with a limp and has his long hair pulled back in a ponytail said he holds a large 2-by-3-foot sign that says, "Disabled Vet/Please Help."
He said he will continue to beg no matter what the law because, "We have to eat."
He said he has a 79-year-old housemate and tries to help her pay the bills, but he can't work because of disabilities for which he said he receives no government assistance other than a "very small" Social Security check, despite having been in combat as a member of the U.S. Army. The disabilities, he said, include a bad back, bipolar disorder, stents in his heart and two strokes.
Though he owns a car, it has been inoperable for nearly two years, so he walks or, if he has the money, catches a taxi to get to his begging sites, he said.
Both men said they were referred to the ACLU by a friend after they expressed frustrations about being harassed by law enforcement officers while trying to beg. They denied allegations of state Solicitor General Lee Rudofsky that they were solicited as clients by the organization.
Metro on 09/06/2017