Ruling casts doubt on Arizona anti-solicitation laws - East Valley Tribune: Ahwatukee Foothills

Ruling casts doubt on Arizona anti-solicitation laws

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Posted: Monday, September 19, 2011 9:28 pm

Arizona communities may no longer be able to enforce city ordinances making it a crime to seek donations or work from motorists in passing cars.

A new court ruling on Friday struck down not only an anti-solicitation law by a California community but also overturned a Phoenix law designed to keep people from looking for work, soliciting money or selling items to people driving by. And several Arizona cities, including Tucson, have laws modeled on the now-voided Phoenix measure.

"This case has clearly changed the rules,'' said Tucson city attorney Michael Rankin. "We are going to be evaluating our code to see if we can enforce it.''

That could be just the beginning of the ripples.

Dan Pachoda, an attorney for the American Civil Liberties Union, said Monday his organization will again ask U.S. District Court Judge Susan Bolton to bar Arizona from enforcing a provision of last year's SB 1070 aimed at day laborers.

Bolton, in a lawsuit brought by the U.S. Department of Justice, last year enjoined the state from implementing several key sections of that law. Most deal with giving police the power to detain and arrest suspected illegal immigrants, with other sections seeking to make it a crime for someone not in this country legally to seek work in Arizona.

But in a separate claim brought by ACLU and others, Bolton refused to stay enforcement of sections making it illegal for day laborers to get into vehicles stopped in traffic to go to work elsewhere. She said at the time that was because a three-judge panel the 9th U.S. Circuit Court of Appeals had upheld the Redondo Beach ordinance making it a crime to solicit employment, business or contributions from occupants of passing motor vehicles.

On Friday, though, the full 9th Circuit overturned that year-old decision, as well as a 1986 decision which upheld the legality of the 1984 Phoenix ordinance.

Bolton herself conceded Monday the legal landscape may have changed, telling attorneys for challengers to "feel free'' to again seek an injunction.

Rep. John Kavanagh, R-Fountain Hills, who crafted the SB 1070 provisions aimed at day laborers, said it is no surprise that foes of the law want Bolton to take another look. But Kavanagh said the language in SB 1070 is narrower in scope -- limited to those who get into vehicles which are stopped in traffic -- and can still be legally defended.

But Victor Viramones, an attorney for the Mexican American Legal Defense and Educational Fund, said  that language actually makes the law  more constitutionally suspect because streets are public forums.

"That's one of the problems with all of these laws: They try to inhibit First Amendment protections in public streets,'' Viramontes said. He said there are other ways cities can deal with traffic problems caused by day laborers.

"There are jaywalking laws, there are parking laws,'' Viramontes said. "None of those laws burden speech.''

The more immediate problem is for cities and towns.

Ken Strobeck, executive director of the League of Arizona Cities and Towns, said he does not know how many communities, relying on the 9th Circuit upholding the Phoenix ordinance in 1986, crafted laws to mirror that language.

Tucson is a prime example of a city whose ordinance may self-destruct.

It makes it illegal to "stand upon or otherwise occupy a street or highway and solicit or attempt to solicit employment, business, contributions, donations or sales of any kind from the occupant of any vehicle.'' That is an almost a carbon-copy of the now-voided Redondo Beach law which, in turn, was modeled after the Phoenix ordinance.

"That appeared to be safe ground,'' Rankin said of the Tucson language, what with the 1986 ruling upholding the Phoenix law. "The idea was, if the activity was going to result in a potential transaction right there in the roadway, then we have a public safety basis and a traffic control basis to regulate and prohibit that.''

But appellate Judge Milan Smith Jr., who wrote Friday's majority ruling, said the problem with these restrictions is they impose far greater restrictions on First Amendment rights than necessary.

"The ordinance technically applies to children selling lemonade on the sidewalk in front of their home, as well as to Girl Scouts selling cookies on the sidewalk outside of their school,'' the judge wrote. "The ordinance applies to a motorist who stops, on a residential street, to inquire whether a neighbor's teen-age daughter or son would be interested in performing yard work or babysitting.''

And Smith, like Viramontes, said there are less-restrictive means of dealing with traffic problems.

But Rankin said Tucson already had such laws on the books when it adopted its anti-solicitation ordinance.

"They weren't effective,'' he said.

"You had people in the medians, you had people on the street corners, who would interfere with traffic or cause a potentially dangerous situation just by interaction with the drivers of the occupied vehicles,'' Rankin continued. He said the broader ordinance was designed to deal with that specific problem.

Other cities have dealt with their problems in different ways.

Flagstaff, for example, does not have a specific law making it illegal to solicit work or contributions from passing motorists. But city officials there say police have used an anti-loitering ordinance to force panhandlers out of downtown.

It was not clear what effect the new 9th Circuit ruling would have on that law.

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