A state lawmaker is crafting a fix — one he hopes is legal — to the statewide ban on begging that was struck down last year as unconstitutional.
Rep. John Kavanagh, R-Fountain Hills, said there's a need to protect individuals from what he calls “aggressive panhandling.” He said people should not fear for their safety because they refuse to come up with some spare change.
Arizona did have a law making it illegal to beg in a public place.
That law was challenged by the American Civil Liberties Union as an unconstitutional infringement on First Amendment rights. And In October, U.S. District Court Judge Neil Wake signed an order which “perpetually enjoined and restrained” state and local police from enforcing it, and requiring Attorney General Tom Horne to notify all law enforcement agencies of his order.
Kavanagh said that ruling, which Horne actually consented to, left a gap that he believes needs to be plugged.
His solution — one he said worked in New York, where he once worked — is to restrict the practice rather than banning it outright.
HB 2024 would make it a petty offense to intentionally, knowingly or recklessly make physical contact with anyone else while begging, at least without that person's consent. It also would criminalize approaching or following someone in a way that they would be of fear of imminent harm — or even to beg in a way “likely to intimidate” the person to cough up some cash.
Also off limits would be continuing to beg after being rejected, blocking the person's path or using obscene or abusive language or gestures that are likely to provoke fear.
Kavanagh also wants an absolute ban on begging within 15 feet of any bank entrance or any automated teller, or on a city bus or trolley, or within 10 feet of a bus stop.
“Any time a person is less free to move, less free to escape that person, then they're in a vulnerable situation,” he said. “An individual shouldn't be allowed to stand by a bus stop, and if the person wants to avoid being 'hit up,' have to move away and possibly miss their bus.”
Kavanagh said the restrictions are taken from laws elsewhere.
“Those have passed constitutional muster,” he said.
ACLU attorney Dan Pochoda said he wants to study them further before deciding whether they are constitutional.
Pochoda said there is no absolute right to beg. He said courts have ruled there can be reasonable restrictions on time, place and manner, just the same as other First Amendment rights.
But Pochoda said there has to be “some valid rationale” behind those limits — especially on the ones dealing with where begging is strictly off limits. He said, for example, the fact that someone is waiting for a bus might be insufficient to have the law protect him or her from being asked for money.
Kavanagh, however, said the restrictions are reasonable.
“This doesn't stop a person from panhandling,” he said.
“All the person has to do is step back a foot or not do it near an ATM machine or a bus stop,” Kavanagh continued. “And that still leaves 99.9 percent of locations available to ply their First Amendment right to bum money from somebody else.”
Wake's ruling arose because police in Flagstaff had been using the old statute to crack down on panhandlers in the city's downtown area. Police had admitted the idea was to sweep the streets of panhandlers early in the day, taking them into custody versus just citing them, before they can cause more problems later.
The ACLU got involved following the 2010 arrest of 77-yer-old Marlene Baldwin by an undercover police officer after she approached him and asked for help.
While Baldwin first said she was hungry and wanted some food, she eventually asked for a dollar. At that point the officer arrested her and took her to jail.
Baldwin had been booked three times for violating the law.
What led to Wake's ruling is that the ACLU sought not just to stop the arrests in Flagstaff but have the entire law voided.