“We had to bring it into alignment with what the (Supreme) court said is constitutional,” Breckenridge Police chief Shannon Haynes said.
The tide began to turn this June with the Supreme Court’s decision in Reed v. Town of Gilbert, Arizona. The court concluded the town’s comprehensive sign code was unconstitutional because it established varying sign rules based on content.
In their decision, the court determined government regulation of speech is content-based if it addresses the topic or idea communicated. First Amendment related precedents have established that when a government regulation is found to be content-based it must meet a “strict scrutiny” test, and will only be permissible if the regulation is purposely geared to meet a compelling government interest.
Although the Gilbert case concerned regulating sign content, after the decision was announced its holding was applied to other First Amendment speech cases. Most notably federal courts have refered to the definition of content-based government regulation established in Gilbert in ruling that a number of municipalities panhandling and aggressive solicitation ordinances were unconstitutional.
“The ACLU has been very active in trying to get local towns and municipalities to change their code,” Haynes said.
In fact the American Civil Liberties Union of Colorado sued the City of Fort Collins in February over its solicitation ordinance, which was settled out of court when the rules were amended. This year Greeleynarrowly avoided litigation over the same issue and Colorado Spring police were instructed to stop enforcing parts of that city’s panhandling ordinance.
On Sept. 30, a Federal District Court ruled that a panhandling ordinance in Grand Junction violated the First Amendment rights of anyone who solicited charity in public places. The court rejected Grand Junction’s contention that the regulations were needed for public safety.
“Panhandling ordinances were found to be not constitutional because they violate free speech rights,” Haynes said. “The Grand Junction ruling made it clear what you could or could not have in an ordinance.”
Breckenridge Town Councilwoman Wendy Wolfe said the revisions are in accordance with the newly defined legal boundaries.
“Our amended ordinance removes any reference to controlling content or free speech by any individual on town property,” she said.
Steve Lapinsohn, who owns multiple businesses on Main Street in Breckenridge, said so many of his follow retail operators expressed concerns about panhandling that he gathered signatures and presented the issue to town council.
“I think everyone was surprised by the restrictions,” he said. “It’s disturbing and it has been disturbing to all of us.”
Tales of woe shared by Lapinsohn include doorways and store entrances occupied by transients for sleeping quarters, sleeping bags dotting the riverbank and people being aggressively approached for money in parking lots.
“A couple of these businesses had some of these people smelling like goats in front of their business,” he said.
Haynes noted that the Grand Junction case targeted specific clauses in the city’s panhandling ordinance that mandated a distance limit for solicitation in front of a business or ATM and restricted requests after dark. She explained that Breckenridge had similar language in its aggressive solicitation ordinance.
“We can’t be enforcing parts of our code that judges in Colorado have said are unconstitutional,” she said. “Many people might say these are reasonable but the court didn’t see it that way.”
Although the town has revised its regulations to avoid potential litigation, there are still restrictions in place.
Behaviors still prohibited in the aggressive solicitation ordinance include: Purposely touching or causing physical contact without consent; deliberately obstructing or interfering with a pedestrian or vehicle’s safe and free passage; gesturing violently or threateningly; using profane or abusive language to provoke a violent reaction.
The ordinance also prohibits a group of two or more persons from approaching or following someone to solicit property or money, using conduct or language intended to convey imminent bodily harm or damage.
In a press release following the Grand Junction ruling, Mark Silverstein, ACLU of Colorado legal director, said his group is not opposed to these types of regulations.
“The ACLU does not object to carefully tailored regulations that target coercive, threatening, or menacing solicitations that actually invade the rights of others,” Silverstein said. “But we oppose, and the First Amendment prohibits, broad regulations that outlaw peaceful, polite, and nonthreatening requests for assistance.”
Haynes was quick to point out that despite the changes some things will stay the same. For example police will still stop someone if they are deemed to be following another with the intent to cause harm.
“We can still address the behaviors people are concerned about,” she said. “We will always help people who need assistance.”
The town of Breckenridge has other regulations that police can apply, Wolfe explained.
“The town continues to enforce our ordinance on harassment which may apply to some incidents of panhandling,” Wolfe said.
Breck police will focus on criminal violations, Haynes explained, or if someone is infringing on another’s rights.
“You shouldn’t criminalize that someone is down on their luck,” she said. “But if the behavior crosses that line it becomes harassment.”
Lapinsohn said the town has done everything it could thus far.
“We have got to look at it and see what we can do,” he said. “If you arrest these people you’re giving them a place to sleep and eat.”
In lieu of arresting those who are homeless, and might have challenges related to mental illness or abuse issues, Haynes said officers will escort the person to detox, provide a bus ticket elsewhere or direct them to a community outreach agency.
“You can’t take all these folks and lump them into one bucket,” she said. “Many of them end up in odd places they never expected.”
To alleviate potential anxieties over the changes to the aggressive panhandling ordinance, a police presence will be added to Main Street.
“In consideration of recent panhandling concerns from our community, the council recommended that our Police Department add an officer on foot to Main Street,” Wolfe said. “We believe that the presence of a uniformed police officer on Main Street will help our guests and residents feel safe in our town.”
Haynes has proposed hiring a community service officer, which she said will be an easier position to fill and requires less training. The entire process could take between two and four months, she said.
Until the presence of a beat cop provides a ready resource, Haynes said people shouldn’t hesitate to contact the police if they feel uncomfortable, or something doesn’t seem right.
“It’s always easier for us to respond and make an assessment,” she noted.
Wolfe echoed that thought, stressing that the changes do not mean police will not address aggressive solicitation.
“We encourage our community to call the Breckenridge Police anytime a citizen feels he or she is being harassed by a panhandler,” she said.
Lapinsohn said it may be an issue of life choices, but that shouldn’t factor into others’ lives.
“A lot of these people want to live that way, but if it infringes on the other’s rights, that’s a problem,” he said.
The town council passed the amended ordinance at a first reading during its meeting on Nov. 10. The council will hold a second reading and public hearing at its next scheduled meeting on Tuesday, Nov. 24.