Free speech concerns scuttle Nevada City’s panhandling ordinance
A proposed ordinance that would ban “aggressive” panhandling in Nevada City was scuttled after concerns were raised about potential legal challenges to its constitutionality.
Nevada City’s city council was set to OK the ordinance on a second reading Wednesday after tabling it in late January. But city staff recommended against approval after taking a closer look at enforceability.
“We had received a huge volume of complaints, and I was ready to vote this in,” said council member Duane Strawser, adding that he began leaning toward not moving forward after reviewing the staff report. “I’ve actually flipped 180 on this.”
The panhandling ordinance was initially broached in September by Nevada City Police Chief James Leal, who said his department has received reports of panhandlers going so far as to chase people, physically grab them or reach into their vehicles.
The proposed ordinance would have banned unlawful panhandling to include causing the victim to fear bodily harm, approaching a vehicle by walking into the road, knocking on a window or reaching into a vehicle, touching a person without consent, blocking a person from leaving, using violent or threatening gestures, or using profane, offensive or abusive language.
The ordinance got an OK from the city council at its first reading, but a decision was postponed last month after City Attorney Hal DeGraw asked for time to review documents provided by homeless advocate Pauli Halstead and local attorney Stephen Greenberg.
DeGraw told the council at its Wednesday meeting that special attention was paid to state and federal cases, especially those post-2015, and he found that if a law regulates speech based on content, it is subject to strict scrutiny regardless of the motive behind the law. Such an ordinance must demonstrate a compelling public interest, must use the least restrictive means available to regulate the behavior and must be very narrowly tailored to specific behaviors so as not to violate constitutional rights to free speech, he said.
Panhandling ordinances have not fared well under this test, DeGraw said.
“We decided the best way to approach this is to go back to the beginning,” he said. “We will look at existing laws, to see if they already cover the behaviors we’re trying to address. If they do, there’s no sense in duplicating them.”
DeGraw said if a concern is found that does not seem to be sufficiently covered by existing laws, staff will bring it back to the council to address that gap in coverage.
Greenberg thanked the city council and staff for slowing down and researching the issues.
“I really sympathize, I know you’ve been hearing complaints,” he said. “People have concerns about behaviors and people have concerns about the Constitution. It’s a tough thing to balance.”
Greenberg noted that continuing to ask for money after being told no is equivalent to someone who keeps saying what you don’t want to hear.
“But do we make this a crime?” he asked.
Contact reporter Liz Kellar at 530-477-4236 or by email at email@example.com.
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