This spring, Bossier City passed two ordinances that have the effect of limiting panhandling. One prohibited aggressive panhandling, defined as an attempt to solicit again someone after refusal, applying the citywide. The other prevents exchanges of objects that cause drivers to slow or stop on or next to any of a dozen named roadways, associated medians, and public egress and exits to these.
While the aggressive panhandling one, commonly seen in municipalities, stoked no controversy, the other had. Authored by Councilor Tommy Harvey, it avoids any mention of begging and tries to frame itself as a public safety measure. Since a 2015 U.S. Supreme Court ruling that substantially raised the burden of proof on local government to demonstrate such laws did not restrict protected speech, governments have found it very difficult to pass constitutional measures directly addressing panhandling.
Slidell tried, creating a regulatory framework that permitted licensed panhandling that could outlaw unauthorized exercise everywhere yet allow peddling and other forms of fundraising. But the courts rebuffed various tries, concluding that the ordinance did not promote content neutrality.
Bossier City attempted to avoid that, but in a manner that may become too overbroad to work, may not prevent panhandling in certain situations, and still could fail constitutionality. To begin with, on the dozen roads the new stricture now forbids any charitable activity, such as firefighters inviting contributions into boots.
It also may not work at places such as intersections of the newly-rebuilt Barksdale Blvd. corridor near the river. Now two lanes with stop signs at nearly every of its intersections in that area, technically beggars can stand at near these and, since they do not cause vehicles to stop, may freely ask to have money passed to them. (And the expected pedestrian traffic in the area as it builds up will become a magnet for panhandling as well.)
Possibly police could prevent this conduct by charging them under another statute, such as loitering. But this opens up perhaps the greatest vulnerability of the recent law, whether Bossier City has alternatives less restrictive on potential speech than this. Other laws already could accomplish the same purpose, so the courts could see this as a veiled attempt to suppress free speech and rule it unconstitutional.
Upon the ordinance’s enacting, the Louisiana ACLU thundered about the unconstitutionality of the law, implying a suit over it headed the city’s way. But nothing has come yet, while it seems an allied organization has bigger fish to fry in the area. Not long after the City Council passed the measure, the New Orleans branch of the Roderick and Solange MacArthur Justice Center took on a suit brought by two panhandlers in Bossier Parish about the bail practices of the 26th Judicial District.
It turns out that law enforcement and judges had created an inflexible bail schedule that often would seem excessive for the alleged infraction and disregarded the abilities to pay for defendants. Constitutionally, judges must consider for each case the appropriateness of bail, according to the flight risk of and potential danger to the community presented by the accused. And if bail seems warranted, then the amount must bear some correspondence to the financial means of the arrestee.
Worse, the charged would remain in Bossier Parish’s jail if they could not pay the $40 application fee for indigent defense, for which almost all would qualify. While in practice the fee often goes uncollected by public defenders, the law allows waiving or reducing this. Yet judges would not hold hearings on this and law enforcement simply would keep people jailed who could not come up with this amount at booking.
A number of other jurisdictions in the state face similar legal actions, and some have resolved these by creating much more flexibility to the process and releasing people without bail for minor crimes. Bossier Parish and the 26th District appear headed this way with a settlement proposed along these lines.
Interestingly, Bossier City police arrested the pair under state statute regarding panhandling on interstate highways, the day before the new local law went into effect. The state’s version itself may come under fire in addition to Bossier City’s.
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