Lawyer plans challenge to panhandling law

Mar. 14, 2013 @ 06:54 PM

A local lawyer says he plans to challenge the city’s move to bar panhandling in the medians of its major highways.

Scott Holmes represents several people who’ve been charged with violating the ordinance since it went into effect in January.

He’s also working with what he termed “a coalition of faith organizations” that’s opposed to the ordinance. Its leaders, he said, include Carolyn Schuldt, executive director of Open Table Ministries, and Jonathan Wilson-Hartgrove, a founder of Walltown’s Rutba House.

Holmes said he anticipates a First Amendment challenge to the city’s rules.

“These folks have a protected right to commercial and free speech,” he said, adding that his “concern more broadly is with the criminalization of poverty.”

The lawyer’s comments on Thursday came as Rutba House and three other groups were announcing plans for a public meeting next week at Duke Memorial United Methodist Church.

The event is scheduled to begin at 7 p.m. Thursday. Its co-sponsors include Durham Congregations in Action, End Poverty Durham, Rutba House and Duke Memorial United Methodist Church.

Organizers said anyone “interested in examining problems created by the ordinance changes that went into effect in January [is] welcome to attend.”

The threat of a legal challenge to the ordinance is surfacing only weeks after a 4th U.S. Circuit Court of Appeals panel led by a Durham native ruled, in a case growing out of a dispute in Charlottesville, Va., that public begging “is communicative activity within the protection of the First Amendment.”

Its unanimous opinion cited as precedent decisions from other appeals circuits, but omitted mention of any similar ruling in prior 4th Circuit cases. The 4th Circuit’s jurisdiction in federal-law matters covers North Carolina and four other states.

Judge Allyson Duncan and her panel colleagues reinstated a challenge to a solicitation ordinance that in their view isn’t content-neutral.

They said, through a Duncan-authored opinion, that a trial judge had prematurely dismissed the case without giving lawyers a chance to look into whether the Virginia college town was in fact engaging in censorship.

Duncan as it happens was born in Durham, got her law degree from Duke University and for a time was a law professor at N.C. Central University. She was appointed to the 4th Circuit in 2003 by former President George W. Bush.

The panel’s other judges, Steven Agee and Andre Davis, were appointed by Bush and President Barack Obama, respectively.

Durham’s new law, approved by the City Council in December, is quite different from Charlotteville’s, so Holmes will likely have to come up with an alternative strategy for attacking it.

The Durham law is actually a package of rules that allows panhandling on sidewalks, while flatly barring anyone from standing, sitting or walking in a median except “during the time needed to travel safely from one side of [the] roadway to the opposite side.”

Schuldt in February told the council the no-medians rule had restricted panhandlers to locations that aren’t as “convenient or profitable” as those they’d been able to work up until January.

Council members have fielded separate complaints, from neighborhood groups, that panhandlers have simply moved to heart-of-the-city locales the no-medians rule doesn’t cover.

But to date they’ve stood by the ordinance, in particular defending it from charges that it’s hurting the homeless.

Schuldt has argued the contrary, on the grounds that some homeless people who “are not shelter-appropriate for a range of reasons” rely on income from panhandling.

Council members have countered that it’s better to see to it that homeless receive whatever array of treatment and social services they need to secure permanent housing.

“I’m a social worker by trade,” Councilwoman Cora Cole-McFadden said in a February exchange with Schuldt. “I just need to be able to look at each individual and see what resources can help him or her get off the street, because I think it’s demeaning to be on the street.”

Meanwhile, Wilson-Hartgrove, in an opinion piece submitted to The Herald-Sun, argued that local services aren’t extensive enough to be held out as the sole solution.

“Our programs have neither ended homelessness nor healed all of the wounds that leave some neighbors begging on our streets,” he said.