An American Civil Liberties Union lawsuit against the Fort Smith police chief claims that two city panhandling ordinances violate freedom of speech rights.
Although it was not Police Chief Nathaniel Clark’s decision to pass the ordinances, he is the one named in the lawsuit because it is the Police Department’s responsibility to enforce them, said Holly Dickson, legal director at the ACLU of Arkansas based in Little Rock. The lawsuit names Clark in his official capacity as police chief.
The suit, which is also against Rogers Police Chief Hayes Minor for a Rogers ordinance, was filed Tuesday in the U.S. District Court for the Western District of Arkansas in Fayetteville by attorneys Bettina E. Brownstein of Little Rock and Monzer Mansour of Fayetteville on behalf of the ACLU for plaintiff Glynn Dilbeck, according to court documents.
In a 6-1 vote (At-large Director Tracy Pennartz opposed) Feb. 21, the Fort Smith Board of Directors passed an ordinance restricting panhandling and voted to repeal a part of the municipal code that allows charities to solicit contributions.
Some of the city’s directors were conflicted because passing the ordinance would not only restrict begging but fundraising by charities or other organizations, including the city’s fire department, the Times Record previously reported. City Administrator Carl Geffken explained during the Feb. 21 meeting that the city could not completely ban panhandling or only put restrictions on begging but not on other solicitations because that would violate freedom of speech laws. He gave an example of a case in which the Kentucky Supreme Court struck down a panhandling ordinance because it specifically prohibited speech in which people were begging.
“By issuing exceptions, we then make it content-based,” Geffken said at the Feb. 21 meeting.
That means that by making exceptions, the city government would be deciding if signs are legal based on what they say, which would be struck down in court, Geffken said.
The ordinance makes panhandling before sunrise or after sunset illegal; makes it illegal to panhandle someone who is at a bus stop, in public transportation, in a vehicle on the street, in proximity to a bank entrance, automated teller or a check-cashing business, within 150 feet of a street corner, intersection or highway interchange or on private property without permission; makes it illegal to come within three feet of the person solicited, until that person has indicated that he or she wishes to make a donation, block the path of the person solicited along a sidewalk or street, follow a person who walks away from the panhandler, use profane or abusive language while soliciting or after a refusal, panhandle in a group or threaten a solicited person; and makes false or misleading solicitation, such as lying about being homeless or having a disability, illegal.
The suit cites both the ordinance passed in February and part of the municipal code that prohibits begging in city parks.
The suit claims, “Plaintiff Dilbeck has been harassed and cited in Fort Smith and Rogers, Arkansas, for begging. … Predictably, the threat of citation, arrest, detention, prosecution, convictions and penalties under the Fort Smith and Rogers’s anti-solicitation ordinance has chilled Plaintiff and others from exercising their constitutionally protected rights to peacefully ask others for money, food, or other charity within the Fort Smith and Rogers city limits.”
The ACLU’s intent with the lawsuit is to have the ordinances declared unconstitutional and overturned, Dickson said.
Clark was not immediately available for comment Thursday. Geffken said via email that the city does not comment on litigation.
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