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Colorado Springs not yet enforcing law against panhandling -- but is "educating" people

Last week, we reported on a lawsuit from the American Civil Liberties Union against Colorado Springs, which is pushing forward with a controversial anti-panhandling law that critics see as violating free-speech rights. The city says it won't start enforcement for a few weeks, but will begin education around the law -- which some worry could cross the line.

The ACLU requested a temporary injunction to stop the enactment of the ordinance, and the organization sees Colorado Springs' decision to delay enforcement as a minor victory, even though city representatives say they're following a previously established plan.

The ordinance, which has been in discussion for a year, creates what is called a "no-solicitation zone" in a twelve-block area of downtown Colorado Springs. It's part of the city's effort to curb panhandling and other soliciting activities that officials worry are bad for the local economy.

A newspaper solicitor in Colorado Springs.
A newspaper solicitor in Colorado Springs.
ACLU lawsuit

The city says panhandling and soliciting has gotten out of control in the area and is hurting small businesses. This kind of ban is the best legal way to address the problem, according to officials, who say they have reviewed similar successful laws in municipalities throughout the country.

But in its lawsuit, the ACLU says the ordinance is written so broadly that it prohibits behaviors that are protected under the First Amendment and goes far beyond simply stopping aggressive panhandling. The suit was filed on behalf of four individuals and four organizations that represent the wide range of activities unfairly prohibited under the law, according to the ACLU -- among them nonprofits seeking donations, an individual trying to sell newspapers, a street musician with a hat out for contributions or someone sitting silently with a sign asking for money.

As part of the ACLU's push back -- it filed the lawsuit the same day that the Springs city council passed the ordinance -- the organization also asked for a temporary restraining order so that it has time to fight the measure before its enactment. The ACLU says it had been told numerous times that the policy would become effective this week, which is why it asked for a forced delay and emergency hearing.

At a hearing on Friday, U.S. District Court in Denver scheduled an evidentiary hearing for the case; it will take place on December 13. The ACLU says that while the ordinance was originally slated to go into effect on December 2, near the start of the holiday shopping season, the city has informed the organization that it changed that date to December 19.

In response, Colorado Springs City Attorney Chris Melcher says that officials never planned on enforcing the policy this week. In a statement, he writes:

There is no change in the effective date of the ordinance. The December 2nd date reported by some outlets was inaccurate. There is a process that must take place before a new ordinance goes into effect, including having it published. This process is being followed.

However, the ACLU says it has documents showing otherwise -- and that's why it asked the court to issue a temporary injunction. In the plaintiff's latest response, on full view below, the ACLU recounts some of the communications with the city, noting:

Many individuals who would be affected by the ordinance are almost certainly under the impression that the effective date of the ordinance is rapidly approaching. Absent a prompt hearing clarifying their rights, these individuals will very soon likely be chilled from exercising their constitutional right to engage in "solicitation" as defined by the ordinance, based on their reasonable -- even if mistaken -- belief, that the ordinance is in effect.

Citing media reports and correspondences with the city attorney's office, the ACLU says it seemed clear that individuals could face enforcement under the policy as early as this week -- until officials changed their mind last-minute.

In Colorado Springs, this law must go from the city council to the city clerk and then the mayor before it can be officially enacted and enforced.

According to the ACLU, city officials have noted that they plan to get the proposal passed in time for the holiday season. One e-mail directly from Melcher, on view below, states that the policy could go into effect this week.

Though the city denies that it has changed its plans, the ACLU legal director Mark Silverstein says he's pleased the organization seems to have more time. In his words, "It's helpful -- it means that for at least an additional two weeks, there's no change to the existing First Amendment rights in the downtown area. It means that the court does not have to make an evaluation on such a rushed basis."

Continue for more of the response from the Colorado Springs City Attorney's office.

 

In defending the city's position and arguing that officials have been consistent in its plan for enactment and enforcement, Melcher writes:

In support of the Downtown during this holiday shopping season, the City will continue to move forward with a strong presence in that area to both enforce current ordinances already in law and begin educating the community about the new ordinance passed by Council.

Education is fine, Silverstein says, as long as it does not lead to preemptive enforcement that he believes would directly violate the rights of those in the "no-solicitation zone."

"If the city's saying what you're doing now is legal, but in a couple of weeks will violate the ordinance, that's one thing," he says. "But if they say what you're doing now is made illegal by an ordinance passed last week, people might get the idea that the ordinance is already in effect.... It really depends on what communications are being made to people who want to exercise their First Amendment rights."

The ACLU and critics of the ban also argue that previous laws covered the aggressive panhandling that officials are targeting -- something that could be evident as the city maintains a strong presence in the area and continues enforcement of existing laws in the coming weeks.

"Many of the critics of the new ordinance wonder why the existing ordinances were not sufficient to deal with the problems that the city council wants to address," says Silverstein. He argues that there were laws in place to address the aggressive or threatening panhandling that officials seem to be targeting.

Silverstein says he hopes there are no illegal threats over the next few weeks.

"Our clients want to be in compliance with the law," he says. "If they are advised by police officiers that what they are doing is against the law, then they'll stop exercising their First Amendment rights."

Continue for the latest court filing from the ACLU and other relevant documents.

 

Here's the latest court filing by the ACLU -- a response to the city's call for a "continuance" of the emergency hearing that the ACLU originally requested. Resp to Mtn for Cont

Here's one piece of e-mail evidence from the ACLU that attorneys say shows that the law could have gone into effect this week. 10-Resp to Def Mtn for Cont, Ex. 1

More from our Politics archive: "Scott Gessler: Boulder clerk protesting election non-certification sang a different tune in 2004"

Follow Sam Levin on Twitter at @SamTLevin. E-mail the author at Sam.Levin@Westword.com.


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