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Powdering The Crooked Nose of The City's Anti-Homeless Panhandling Law

by Robert Norse (rnorse3 [at]
The Santa Cruz City Council did a "quick fix" on an obscure section of its really bad panhandling law on May 23rd and June 13th. Instead of giving the whole panhandling law the civil liberties and common sense overhaul it needs, the Rotkin City Council chaired by Mayor "Two Minutes" Mathews cut short public discussion and rubberstamp City Attorney Barisone's settlement. More legal challenges and more city money will probably be going to pay City Attorney Barisone's questionable defense of his even more questionable law.
Late Tuesday night City Council ignored suggestions from Don Zimmerman, Kate Wells, and me to clarify just what exactly is “abusive” language in panhandling. Instead, City Council made some small changes to section 9.10.040 of the panhandling law in regards to the John Maurer case.

Maurer, after repeated harasssment from police in 2003, put a "Fuck the Pigs (Police)" sign in his hat. He was twice cited for it. Charges were dropped when City Attorney Barisone learned that attorney Paul Sanford was covering the case. Commissioner Joseph refused Sanford's request for a hearing on the constitutionality of the law. Sanford and Kate Wells took the case to federal court. Federal Judge Fogel told the City they'd have to change the law or lose the case. After three formal meetings and many phone exchanges, Barisone proposed and Sanford/Wells/ Maurer accepted a settlement--for financial restitution and a change in the “profane and abusive language” secution of Section 9.10.040--the City’s harsh panhandling law.

The City's law was written by City Attorney Barisone in 1994 under pressure from the Downtown Association and then-Councilmember Neal Coonerty and made worse in 2002 after rushed hearings from Councilmembers Emily Reilly and Ed Porter. It is of the most sweeping and vague in the state. The section successfully challenged by Maurer and his attorneys reads...

“Section 9.10.040. MANNER OF SOLICITATION. Any person who solicits in any of the following manners is guilty of an infraction: ..."(d) By using profane or abusive language, either during the solicitation or following a refusal;"

This is the reading of the old (1994/20020 law (still in force until July 23, 2006).

The new law, passed on June 13th and effective on July 13th, changes the wording of section "d" to read: "d) By using abusive language as part of the solicitation or following a refusal that is directed at the specific individual or individuals being solicited."

This new wording prohibits citing or arresting a person for having a sign by the indirect method of adding the phrase "directed at the specirfic individual or individuals being solicited". Why doesn't the new language exempt signs explicitly? The 1994 law had such an exemption, but this exemption was removed in 2002 under merchant pressure. So would homeless person holding a sign saying "Councilmember Rotkin votes more money for the cops, but backs the Sleeping Ban. He owes us money! Pay 'up you corrupt scumbag" be subject to arrest if he held it up at City Council or sat outside the Council door "panhandling"? The wording of the "corrected" law would apparently allow it.

Signs seeking money after dark, from a seated position, while seated on a public bench, or while seated on 95% of the sidewalk remain criminal conduct.

The new language essentially eliminates "bad language" on a sign as a basis for citing someone. So for all those who want to put out angry messages, they are now theoretically protected (though police can no doubt find other laws to use, engage in frequent warrant checks, hang about surveilling, or make life otherwise difficult).

While this legal change doesn't directly affect other sections of the panhandling law--which are used in 99% of the tickets--it does put police and city attorney on notice that a part of their bad law has been found unconstitutional and other parts may be up for challenge in the years ahead (if we can ever find attorneys as determined as Wells and Sanford).

Signs generally as mentioned above, remain criminal behavior in the rest of the panhandling law.

No broader discussion of the panhandling law happened at City Council as some hoped for. While there were half a dozen people at the first reading of the law on the afternoon of May 23rd, Mayor Mathews allowed most speakers only 1 minute, claiming there was "no time for them". This claim was raised after she had deliberate packed the afternoon agenda and made the law the last item of discussion. She went back on her promise to allow HUFF (Homeless United for Friendship & Freedom) 5 minutes--as is customary with organizations during public hearings on changes in the law.

When the law came back three weeks later on June 13th for a second reading, Mathews again dismissing a request from HUFF for the standard public hearing time for organizations, breaking an understanding she had agreed to previously. She also held the hearing at 11:15 p.m. at night as the last item on the evening agenda.

Don Zimmerman of the ACLU attended both hearings on the law and spent hours of time in preparation both before the local ACLU board and doing research with an eye to creating a fairer law. He proposed wording to the City Council that would include a definition of "abusive" that read "conduct that would cause a reasonable person in the position of the solicitee to fear for his or her safety" (the language of the San Diego, San Francisco, Berkeley, Santa Barbara, Sacramento, Monterey, and Los Angeles laws). The local ACLU, under Zimmerman's leadership, backed his proposal.

Wells reports that this language was rejected by the City Attorney in settlement conferences and was not required by the judge. Accordingly Wells and Sanford felt forced to take the less specific and less protective language "directed at the specific individual or individuals being solicited".

Zimmerman also pointed out that City Council had failed to meet the court deadline for passing the law as part of an out-of-court settlement (which was May 23rd). Hence Sanford and Wells could proceed to take the case to court, if they wanted, and demand the stronger language protecting those accused of "abusive" language.

Wells offered to sit down with the City and work out the language out-of-court, asking also that the City consider that other parts of the panhandling law (see below) were unconstitutional. Zimmerman and the ACLU offered to help. City Çouncil ignored both offers and passed the language of the original expired settlement unanimously.

Some activists regretted that Sanford earlier reminded the Council of its court deadlines (it was originally not even on the council agenda). I hoped Wells would use stronger language before City Council, telling them she'd go back to court if the City didn't deal with other sections of the unconstitutional law--since the deadline for the formal settlement had expired. She felt the judge wouldn't have given them the stronger language and that she and Sanford had committed themselves to the other language, previously.

Zimmerman's statements at the first reading of the law weak, but he had just learned of the proposed legal change (as usual, City Council gave only 72-hour notification). On the other hand, Zimmerman's final 6-13 lengthy statement gave much-needed documentation of panhandling laws in other cities that are much better than ours. On the bad side, Zimmerman failed, in both hearings, to mention the "h" (homeless) word--a key issue in the generation of this law--and the main group of people impacted by it. The local ACLU, even its recent resurgent concern for local civil liberties, has studioulsy avoided mentioning the homeless community (Rotkin is on the ACLU Board; Sheila Coonerty, Downtown Commission supporter of the Parking Garage "15-Minute" Law is the co-chair)

Still at the 5-23 hearing, Sanford spoke out strongly and boldly against City Attorney Barisone's abusive conduct towards the homeless. The three-year history of Barisone v. Maurer is a rather slimey one. Barisone dragged Maurer into court in an obvious attempt to defend the SCPD's right to censure criticism of itself. He defended the unconstitutional anti-homeless law until attorney Sanford showed up and showed he was ready to fight back. Barisone's flunkies kept citing the wrong law in their arguments. Finally, Barisone rejected a constututional adjudica- tion of the law at the lower court level. The local judge, Commissioner 'Junk Justice' Joseph--as local judges usually do--sided with Barisone.

Barisone then made money by defending the bad law he had written in federal court. As city attorney he gets paid by the hour in such lawsuits, above and beyond his normal contracted salary with the City. He could have saved the taxpayers three years of legal fees by suggesting to Council that it change a clearly unconstituional law. He was perhaps reluctant to do that since he wrote the law 1994 and its 2002 amendment. On top of all of this Barisone repeatedly falsely cited the wrong law four occasions in hopes, perhaps, of snowing the court and/or exhausting the defense. Of course, no one expects this to be seriously examined on June 19th when City Council does its annual rubberstamping of the City Attorney.

Even though she declined to throw down the gauntlet to City Council and demand they add stronger wording, Wells still reserved her option to go back to court and may continue to fight for stronger wording.

Zimmerman has, now for the third time (first with the police surveillance of the New Years Eve march, then with the Parking Garage Paranoia law), been able to move and guide the local ACLU on LOCAL issues--an astonishing achievement.

Very few people are cited under the "abusive language" section of the law, as far as I know, though others have been threatened with citation by individual officers, even after the Maurer case forced the city to back down. Other parts of the law such as "panhandling in groups of 2 or more", "panhandling after dark", "panhandling within 14' of a building" have been used much for frequently--and much more unreasonably--to selectively harass particular people who police have decided to cite.

There are some sections of the law that are absurd on their face.

Section 9.10.030h says "Any person who solicits in any of the following places, or any person who solicits when the person solicitied is in any of the following places, is guilty of an infraction...Within fifty feet of all cash disbursal machines, outdoor vending machines, outdoor money changing machines, or any other outdoor machine or device which disburses or accepts coins or paper currency, except parking meters and newspaper vending machines."

Section 9.10.030j bans panhandling "while seated on or leaning against any public bench, planter, monument or other public property" (that is, sitting silently with a sign alone on the sidewalk in a "permitted location" is still criminal, because you're sitting and not standing).

Both these sections are made all the more vicious and sweeping by the 2002 addition of signs and placards as "solicitation". This new definition, cooked up in the Reilly-Porter drive to pass the "Jackson's Shoes" toughening of the law in the pre-election summer of 2002, defines panhandling as "Solicitation": "any verbal request, or any non-verbal request made with a sign, by a person seeking an immediate donation of money, food, cigarettes or items of value."

So, even if a panhandler is in the narrow "permitted" zones more than 14' from a crosswalk, a building, a kiosk, or an outdoor seating area, if her or his sign is visible to anyone passing by within 14' of all these places, the act of silent begging is illegal.

Two such criminal acts within 6 months constitute a misdemeanor, punishable by up to 6 months in jail and/or $1000 fine.

The only exception is for musicians and performers Section 9.10.010a provides "A person is not soliciting for purposes of this chapter when he or she passively displays a sign or places a collection container on the sidewalk pursuant to which he or she receives monetary offerings in appreciation for entertainment or a street performance he or she provides." Hence silent panhandlers with signs could in theory be shielded from police harassment by being given kazoos, which they would then play as people passed by. I am seriously thinking of organizing a kazoo drive.

I'm also looking for more stats on the number of panhandling citations issued in the last year. I hope shortly to have a Public Records Act request in to the SCPD to find out.



ATTORNEY KATE WELLS' THOUGHTS ON THE MAURER CASE:;f=1;t=003463;p=2 (towards the bottom of the page under "Lioness" beginning "WOW I'm gone for awhile and look what happens..."
While I have disagreements with the lawyers in their legal strategy, Wells and Sanford are to be commended for undertaking a thankless battle. While they ultimately win their legal fees and a some money for Maurer, this is ultimately a lot of time put in because they both bleieve in the principle of free speech involved. I thank them both.
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