Panhandling payout: City to settle suit over anti-begging ordinance

Part of a city ordinance restricting panhandling—including soliciting money with signs—from portions of the Downtown Mall has been declared unconstitutional by a federal judge. Photo: Jayson Whitehead Part of a city ordinance restricting panhandling—including soliciting money with signs—from portions of the Downtown Mall has been declared unconstitutional by a federal judge. Photo: Jayson Whitehead

The final chapter in a 4-year-old legal battle over a Charlottesville ordinance banning solicitation in certain areas of the Downtown Mall is playing out in favor of the free-speech advocates who challenged the rule. Last week, the City Council approved a nearly $126,000 settlement to the plaintiffs in the case, Albert Clatterbuck and Christopher Martin, after a federal judge ruled in February that the city’s attempt to ban panhandling within 50 feet of traffic crossings on the mall was unconstitutional. Other parts of the law, including a ban on soliciting from restaurant patrons, remain in place.

Judge Norman K. Moon initially sided with the city in tossing out the case three years ago, saying the plaintiffs’ claim failed to point out a First Amendment violation, because the ordinance appeared to be “content-neutral”—it banned any kind of monetary solicitation, regardless of who was holding out a hand or why.

But when the case came before them, judges on the Fourth Circuit Court of Appeals found just the opposite. They pointed out that while the ordinance made asking for money illegal, asking for other things of value, such as a signature, was allowed, and they sent the case back to Moon. The second time around, said plaintiffs’ attorney Jeffrey Fogel, he was able to present evidence, including the testimony of several city officials.

Moon’s final judgment pointed to that evidence in what reads as a strong rebuke to the city. He said officials didn’t back up their claims that people asking for money could distract drivers or cause pedestrians to take “evasive maneuvers” and end up in traffic, and he called arguments that the city’s “assistance to the homeless and impoverished” and its siting of a monument to the First Amendment on the mall showed it had no intent to censor panhandlers’ speech “irrelevant.” He added in a footnote that the Thomas Jefferson Center for the Protection of Free Expression, “which built and maintains the First Amendment Wall, filed an amicus brief on Plaintiffs’ behalf.”

City Councilor Kristin Szakos, who voted for the ordinance in 2011, said she believed supporters and opponents of the rule held “positions that were taken in good faith,” and pointed to a major U.S. Supreme Court decision in 2014 that ruled 35-foot buffer zones around Massachusetts abortion clinics unconstitutional. That ruling made a difference in this case, she said.

But Fogel pointed out that on what has long been the key argument over the intent of the ordinance—whether the city was targeting beggars specifically—Moon sided with him. “My examination of the record reflects that the City’s focus was on panhandlers, and the City created an ordinance reflecting that focus,” the judge wrote.

“The First Amendment is always tested by the people who displease the majority,” said Fogel, and in this case, the majority included “even nice liberals” who questioned whether begging had any social value. “It’s the people on the edges of society that society seeks to suppress. This reached that edge,” he said.

City Attorney Craig Brown declined to comment on the case. But in a memo he penned for last week’s Council meeting, he recommended approving a $125,975.70 settlement—$123,000 of which covers the plaintiffs’ attorneys’ fees, which he acknowledged were “substantial” due to the lengthy battle in the courts—and avoiding a jury trial. The money will come out of the city’s risk management fund, which spokeswoman Miriam Dickler said has a balance of $3.4 million.

Fogel hinted more local fights over panhandling restrictions might be coming from his quarter. He’s watching a case challenging a Henrico law banning begging in highway medians, and said he may file a similar suit against Albemarle County, where soliciting money from medians was outlawed in 2005. That move pushed panhandlers into the city, where they’re currently allowed at most intersections.

The plaintiff at the center of the case, meanwhile, is now living at The Crossings, the subsidized housing development near the mall. A disability payment helped Clatterbuck buy a scooter, his attorney said, and he relies a lot less on panhandling these days.

“He’s doing well,” Fogel said.