City officials, however, say there is precedent across the country for such a measure and feel the ACLU is wildly misinformed.
This battle echoes the fight in Denver over a controversial camping ordinance passed in the spring that makes it illegal for people to sleep outside. Critics of that policy, which was backed by businesses that wanted to see the 16th Street Mall cleaned up, argue that it unfairly criminalizes those in need, while the city says it is trying to help connect homeless individuals to services.
In Colorado Springs, the new policy, which officials say they have been working on for about year, applies to a twelve-block area in downtown that some argue has been negatively impacted by a growth in panhandling. As a result, business and tourism in that area is threatened, the city argues, which is why it pushed forward with a downtown "no-solicitation zone" that successfully passed the city council on Tuesday."It's a targeted area that is very economically important," says Chris Melcher, city attorney for Colorado Springs. "It is the core of our downtown and it is populated mostly by small business owners."
The six-block long, two-block wide zone, he says, "is vulnerable to being overwhelmed by solicitation and panhandlers. Business owners, merchants and...residents have been requesting this ordinance for several years now."
Over the last several years, critics have observed a three-to-four-fold increase in the number of aggressive panhandlers, he says.
Regardless of the intention, the law, however, is written in such a broad way that it opens the door for the city to prohibit all kinds of behaviors, including ones that are protected by the First Amendment, according to the ACLU of Colorado's lawsuit. Filed the same day as the city council passed the ordinance, the lawsuit argues that the "no-solicitation zone" has an expansive definition that would outlaw peaceful, non-intrusive forms of expression that are covered in the Constitution.
Examples include nonprofit groups requesting donations from passersby, the Salvation Army ringing bells to seek contributions, street musicians playing for donations, newspaper hawking and even a needy person who is completely silent but has a sign that asks for financial support, the ACLU says.
"It's a breathtakingly broad suppression of constitutionally protected expression," says Mark Silverstein, the Colorado ACLU's legal director. "City officials have been saying that some panhandlers have been intimidating and harassing pedestrians. So in an effort to purge these menacing panhandlers from downtown, the city has unjustifiably transformed our clients' peaceful, nonthreatening...protected [actions]...into crimes."
In addition to filing a lawsuit in federal district court in Denver, the organization has also filed a request for a temporary restraining order and a preliminary injunction to try and stop the policy before it is implemented. City officials say it'll be several weeks before the ordinance actually goes into effect. For that reason, Melcher says the request for a restraining order is surprising to the city.
The lawsuit, on full view below, was filed on behalf of four organizations and four individuals who the ACLU says could be criminalized through the ordinance, including Greenpeace and Pike's Peak Justice and Peace Commission -- two groups which do outreach and fundraising activities in what will become the no-solicitation zone. One individual is a flute player who invites tips when he plays in the area and another is a disabled Colorado Springs resident who has parked his wheelchair in the area for many years and asked for spare change.
Continue for more details on the lawsuit and the city's response to the ACLU. "It seems that what the city council is trying to do is address these reports of aggressive panhandling that is frightening, threatening, coercive, intimidating," says Silverstein. "But what they've chosen to forbid covers far, far more."
While the ACLU argues that the ordinance illegally targets some behaviors, Silverstein also notes that the policy seems unnecessarily harmful to those who aren't a nuisance.
"He sits quietly in a wheelchair and asks...if people can spare any change," he says of one client. "And he winds up being a target."Silverstein adds, "In fact, if you happen to park downtown and you didn't have money for a parking meter and you ask a companion for a quarter, you would be in violation.... If a Girl Scout were selling cookies, if a kid set up a lemonade stand, that's forbidden too."
Melcher, however, says the city has thoroughly researched the issue and believes the policy does not violate the Constitution. As evidence, he points to the many cities across the countries with similar policies that have held up in court.
"There are probably two dozen...around the country," he says. "We are well aware of the Constitutional issues. We did an exhaustive review.... We looked at cases over the last twenty years. We designed this ordinance very carefully to make sure it would give our city...the best opportunity to have a lawful ordinance that would help our downtown community."
Though the ACLU argues that the policy is dangerously broad, Melcher says, "It's very narrowly drafted. We cover only solicitation -- asking someone...for money, a thing of value, with nothing in return."And Melcher says the law can't get much more specific than it is, because the law must consider everyone the same, without creating exemptions for different activities or people.
"The courts require that if you have a no-solicitation ordinance, you have to treat everyone equally," he says, adding that he's frustrated the ACLU did not give the City Attorney's office a chance to thoroughly explain the legal arguments behind the ordinance.
Melcher, in comments that resemble the arguments behind Denver's camping ban, adds, "The city is not only addressing negative impacts of solicitation in downtown, it's trying to really proactively address root causes of homelessness."
Continue for the full legal filing in this case. The ACLU's complaint. ACLU Colorado Springs Complaint
More from our Politics archive: "Amendment 64: Douglas County to ban retail marijuana sales a year before they could happen"
Follow Sam Levin on Twitter at @SamTLevin. E-mail the author at [email protected].
