PHOENIX — Calling the statute an infringement on free speech, the American Civil Liberties Union wants a federal judge to block police in Arizona from enforcing a law making begging a crime.
ACLU attorney Dan Pochoda said the measure is unconstitutional because it makes people subject to arrest not because they are loitering but because of what they are saying. He contends there is no right to charge someone with a crime because they ask for money when the law contains no similar penalties for politicians seeking support on the same public streets.
The lawsuit is most immediately aimed at the city of Flagstaff, which, in an effort to help local merchants, has used the law to arrest hundreds of people. Pochoda wants those arrests halted.
But he also wants U.S. District Court Judge Neil Wake to rule that the state law itself is legally void, making it unenforceable anywhere in Arizona.
Attorney General Tom Horne declined to comment on his view of the legality of the statute.
“It's being reviewed,” he said.
Kimberly Ott, spokeswoman for Flagstaff, said city officials would have nothing to say until the council gets a chance to review the lawsuit next month.
The law has been on the books for years, but it was not until 2008 when Flagstaff police, responding to complaints by merchants, started to use the law to have undercover officers make arrests.
Police have admitted the idea is to sweep the streets of panhandlers early in the day, before they can cause more problems later. The department even said that Operation 40 as it has been called — both after Interstate 40 which bisects the city and the 40-ounce bottles of beer popular with some — has resulted in an overall decrease in crime.
Pochoda said police remain free to arrest those who commit specific crimes. What they cannot do, he said, is this kind of preemptory approach.
“There's no doubt that peaceful begging is speech, fully protected under the First Amendment,'' he said.
That isn't just his viewpoint.
In a 2006 ruling, the 9th U.S. Circuit Court of Appeals struck down a Las Vegas ordinance which banned soliciting for money in particular areas of that city.
The judges in that case acknowledged that the ordinance, like the enforcement of this law, was designed not so much to stop the begging but instead for “controlling the secondary effects of solicitation.” But the appellate court said the law was invalid because it affected only a particular kind of speech, in this case, begging.
And two years later, U.S. District Court Judge Roslyn Silver used that to strike down a Cave Creek ordinance making it illegal to stand on or near a road to either beg or solicit a job.
“It prohibits solicitation speech, but not political, religious, artistic or other categories of speech,” Silver wrote. “It also prohibits solicitation on the topics of employment, business or contributions, while allowing solicitation of votes or ballot signatures.”
Pochoda, in his request for an injunction, said the state law, and the way it is enforced, has the same problem.
“A solicitation to vote for a candidate or attend a concert, join an organization or eat at a particular restaurant, delivered in the same manner and tone as that for money, would not result in violation or arrest,” he told Wake in the request for the injunction.
And to back that up, the legal papers include the 2010 arrest report of 77-year-old Marlene Baldwin by an undercover police officer.
In his report, Ofc. D.L. Mead said Baldwin approached him and asked for help. When he asked her what she needed, Baldwin responded that she was hungry and wanted some food.
It was only after Mead told Baldwin repeatedly he did not have food and asked her how he could help that she requested a dollar. At that point he arrested her and took her to jail.
Pochoda said that proves it was what Baldwin said, rather than anything she did, which resulted in her arrest. And in that case, he said Mead entrapped Baldwin.
“Flagstaff has adopted prosecution policies apparently based on the belief that residents are safer by entrapping and jailing 77-year-old women and others seeking a dollar for food.”
No date has been set for a hearing on the injunction request.