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Nickel and doomed

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Allegedly, it was constructed with care. But upon contact with the courts, Colorado Springs' downtown solicitation ban sank like the Titanic.

It seems there was an oversight — or a few oversights — that went unnoticed for a long time.

Consider: It's been a year since an Independent news story ("Not in our downtown," Dec. 29, 2011) revealed that the city legal department was working on a panhandling ban for the core downtown area. City Council proceeded to discuss the ban with City Attorney Chris Melcher exhaustively before approving it, 8-1.

Melcher had tirelessly advocated for the law he crafted, publicly reassuring Councilors that the legislation could withstand an expected court challenge from the American Civil Liberties Union of Colorado. For one thing, Melcher said, his ban was copied from a Florida law OK'd by the Eleventh Circuit Court of Appeals. He also said the law met a legal mandate for "content neutrality," and a legal burden to be "narrowly tailored."

With a year's work, and help from the outside law firm Hogan Lovells, Melcher seemed amply prepared to face a court challenge. Two days after the ACLU filed suit Nov. 28, Melcher stated in a press release, "We remain confident that the Court will ultimately find the ordinance to be constitutional since this same type of ordinance has passed legal scrutiny in other jurisdictions, including federal courts in Florida and West Virginia."

But last week, Federal District Court Judge Marcia Krieger swiftly ruled in favor of the ACLU, granting a temporary injunction that prevents the law from being enforced until the legal challenge is resolved. Her ruling was a clear signal that she believes the law is unconstitutional. Indeed, she said as much in court, calling it "not likely to survive" a trial.

The city legal department has not said how it will respond, other than that it will confer with Council and the mayor. It could take the case to trial or appeal the judge's ruling, though both paths could be costly and daunting.

One thing is certain, however: This wasn't the home run Melcher portrayed it to be.

For starters ...

Throughout 2012, Councilors asked Melcher to consider various rewrites of the law. Most requests were rebuffed because, Councilors were told, changing the law's wording would make it more vulnerable to court challenge. Councilor Lisa Czelatdko tells the Indy by e-mail that Melcher "assured Council it wouldn't be an issue to defend" his ordinance.

Melcher stuck to that story fairly late in the game. In a written response to Indy questions on Dec. 3, for instance, he stated, "Our ordinance is identical, word for word, with that of Ft. Lauderdale, which was upheld by the federal court of appeals over 10 years ago."

Problem is, that isn't true.

When prompted by ACLU lawyers, Melcher admitted in a court document that he hadn't copied a challenged law. While a Fort Lauderdale beach rule banning solicitation was challenged in the courts, Melcher actually copied a Fort Lauderdale city ordinance that hadn't been challenged.

"The Beach Rule is not 'almost identical' to the ordinance challenged in this case," Melcher notes in the document, "rather it simply prohibits'[s]oliciting, begging or panhandling.'"

Melcher sought to excuse the slip-up by noting that the ordinance he copied was in place at the time the beach rule was challenged. But ACLU director Mark Silverstein was quick to seize on the differences between the beach rule and the Springs' law. He noted, for instance, that half-naked beach-goers were less mobile than downtown pedestrians, and therefore less likely to be able to escape harassment. He also noted that the beach ordinance, at least in practice, didn't appear to ban signs, while the Springs ordinance did.

The judge had reason of her own to disregard the Florida ruling, calling it "cursory" and "not persuasive."

What I meant to say was ...

Of course, when justifying limits on First Amendment rights, legal precedent is a nice thing, but it's not everything.

A judge will also focus on three main points to determine if the law is overbroad — points that Melcher often hammered in Council discussions. First, limits on free speech must be "narrowly tailored" to serve a legitimate government interest. So if the government interest is, say, "keeping citizens safe from aggressive panhandlers," a law couldn't block someone from sitting passively with a sign.

Second, the law needs to be "content neutral," meaning it must target some "secondary effects" of the speech, not the content of the speech itself. In court, Silverstein used the example of a city that only allowed adult businesses in specially zoned areas — a move upheld by the U.S. Supreme Court in 1986. Silverstein noted that Renton, Wash., was able to show that adult theaters, naughty content aside, tended to attract crime. And since the government had an interest in preventing crime, it could block those businesses in certain areas.

Third, there must be ample alternative channels for communication. (That said, during the court challenge the first two requirements were emphasized, as they are harder to meet.)

To keep the law narrowly tailored, Melcher's team argued that persistent solicitation was hurting the downtown economy — crucial to city stability — by scaring away customers. To achieve content neutrality, they applied the law to all solicitors, whether Salvation Army bell ringers or panhandlers.

But the city still faced stiff challenges on both points. Silverstein argued, for instance, that a host of recorded city meetings showed that city leaders and citizens really only had a problem with panhandlers, and more specifically, vocal and harassing panhandlers. Records showed the city had researched carving out exceptions to the law for both charitable solicitors and street performers.

In fact, earlier in the month, officials participated in a celebratory PR effort to announce that Salvation Army bell ringers would be able to skirt the law by soliciting on private property.

So City Councilor Merv Bennett and Bach had an uphill battle in assuring the judge that they were vexed by such charitable solicitors, and street performers. Nevertheless, on Dec. 14 Bach told reporters, "With respect to my testimony this is what I said: I said downtown solicitation of all forms is a persistent problem ... I'm talking about not just panhandling, but also charitable and religious and political solicitation."

On the issue of content neutrality, Silverstein pointed out that the city still had an exception in its law for commercial solicitation, which is considered less protected under the First Amendment than personal speech. It didn't seem right that licensed vendors could pester you to buy a hot dog downtown, but Greenpeace couldn't ask you for a donation. (Confusion also arose when the city announced that — contrary to the wording of its law — it would be legal to ask for a donation at a later date, but not immediately.)

Meanwhile, someone seeking petition signatures could still pester passersby, and a person could still hold a sign if he or she wasn't asking for money — potential breaches of content neutrality, since those actions are similarly intrusive to solicitation, with similar "secondary effects."

In the end, however, Krieger said it was narrow tailoring that called the law into question. The judge was perturbed that commercial solicitation was excepted from the ban, and she thought banning charitable solicitors, street vendors and passive panhandlers was an overreach.

As Krieger put it, "The ordinance reaches a broad range of protected speech that does not present the harms — intrusion on the convenience and comfort of pedestrians — that the ordinance seeks to prevent."

stanley@csindy.com

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