Panhandlers across the state are free to continue asking for money without being arrested, under an order issued Thursday by a federal judge in Little Rock.

The two-paragraph order issued by U.S. District Judge Billy Roy Wilson makes permanent an order he issued Sept. 26, 2017, finding a newly revised state anti-loitering law unconstitutional.

The 2017 law was the Arkansas Legislature's attempt to remedy a version that had been on the books for decades until Wilson declared it unconstitutional in 2016 after the American Civil Liberties Union of Arkansas challenged it on behalf of two men who beg regularly.

Attorney General Leslie Rutledge appealed Wilson's 2017 preliminary injunction to the 8th U.S. Circuit Court of Appeals in St. Louis, leading a three-judge panel to uphold the injunction in an order issued Nov. 6. The appellate court later rejected the state's requests to reconsider, and just last week returned the case to Wilson's jurisdiction. The temporary order had remained in effect in the interim.

Rutledge didn't say Thursday whether she is aware of any other effort to revive the ban in a way that comports with the U.S. Constitution. Spokesman Amanda Priest said only, "The attorney general is disappointed by the Eighth Circuit and district court's rulings against Arkansas's panhandling law."

But Holly Dickson, legal director and interim executive director of the ACLU of Arkansas, praised Wilson's order, which noted that both sides -- the ACLU and the state -- had agreed there was no need for further investigation or arguments in the case. That let Wilson's preliminary injunction stand as a permanent injunction and prompted him to close the case.

"We are grateful that all Arkansans' freedom of speech was protected with this ruling," Dickson said Thursday. "The state and some cities have tried differing ways to stop panhandling but it is clearly protected speech and criminalizing the effects of poverty takes us all in the wrong direction."

Dickson added that in light of the covid-19 pandemic across the country, the ACLU hopes to see more of the "positive steps" that some communities, including Little Rock, Hot Springs and Fayetteville, have taken to find solutions to panhandling by addressing the underlying causes of poverty and the needs of the community.

In November, the 8th Circuit panel agreed with Wilson that because the anti-loitering law applied only to those asking for charity or gifts without providing a clear reason for singling out that type of expression, it is unconstitutional.

One of the three judges disagreed that Wilson had the authority to apply his ruling statewide, but the other two panelists, including U.S.Circuit Judge Lavenski Smith of Little Rock, said Wilson was right to apply the injunction statewide after finding that it was "plainly unconstitutional."

Last year, Rutledge called the anti-loitering law a "commonsense statute that prevents abusive and harassing panhandling practices."

In response, Dickson noted then that in the two years the law had been unenforced, "it seems like our law enforcement has been able to handle any public safety concerns relating to panhandling just fine," by addressing any crime occurring in conjunction with panhandling, rather than addressing panhandling itself.

The law that the ACLU first challenged, which had existed for at least 30 years, made it a crime "to linger or remain in a public place or on the premises of another for the purpose of begging."

The revised law, Arkansas Code Annotated 5-71-213(a)(3), made it illegal to linger in public or on private property "for the purpose of asking for anything as a charity or a gift: (a) in a harassing or threatening manner, (b) in a way likely to cause alarm to another person, or (c) under circumstances that create a traffic hazard or impediment."

In issuing the preliminary injunction, Wilson wrote, "I have no doubt that holding a sign asking for gifts or charity could 'create a traffic hazard or impediment' ... and ... that it is possible that holding a sign asking for gifts or charity might cause some people to feel threatened, harassed or alarmed." But the law nevertheless restricts "a certain species of speech (asking for gifts or charity.)"

In the opinion affirming Wilson, U.S. Circuit Judge Michael Melloy of Cedar Rapids, Iowa, noted that "other types of solicitation (e.g., political or commercial) done 'in harassing or threatening manner,' 'in a way likely to cause alarm' or 'under circumstances that create a traffic hazard or impediment' are equally dangerous," but weren't outlawed in Arkansas.

He said that under U.S. Supreme Court precedent, "a regulation cannot discriminate on the basis of content unless there are clear reasons for the distinctions." The opinion went on to say that "because Arkansas has offered no justification for its decision to single out charitable solutions from other types of solicitation, the anti-loitering law is under-inclusive, and consequently, not narrowly tailored" to show that the need for it in Arkansas outweighs its inconsistency with the First Amendment.

In 2018 and 2019, federal judges in the state's Western District struck down begging restrictions in Rogers and Hot Springs, and an effort to restrict panhandling in Fort Smith was resolved when the city repealed its ordinance after the ACLU got involved in response to complaints.

Efforts to control panhandling in other states have similarly been rejected.

Aaron Reddin, who operates The Van, a Central Arkansas effort to help homeless people, called Wilson's ruling "awesome."

He said that while "the overwhelming majority of homeless people have never held a sign," he remembers that people who panhandled when the law was in effect told him they were worried about how they could possibly pay a ticket when they couldn't even pay for food.

Reddin said there are "a lot of misconceptions" about people who panhandle, and "you never really know" who is seriously in need of a handout until you talk to them. While not all may be legitimate, Reddin said, "I know a lot of people who literally didn't know where they were going to get their next meal without holding their hands out."

Metro on 03/27/2020