Caitlin McGlade

Arizona Republic

PHOENIX -- On a good day, Danny Benham makes about $40.

It takes patience. For about four hours, he must stand on a strip of concrete between lanes of opposing traffic and score a buck or two at a time.

It takes humility. He must endure the occasional bully, like the one who rolled down his window to unleash a stream of pepper spray. Or unwanted solicitations, like the naked man who cruised up assuming Benham was a prostitute.

And it also takes guts. Benham must dart out into the road to retrieve cash or coins that drivers toss out their windows as they speed by.

That's precisely what Phoenix police want to stop in a city that sees about 40 pedestrian deaths a year and in an area that has ranked among the top 10 spots in the nation where pedestrians are likely to be hit and killed.

The City Council in November unanimously passed an ordinance to outlaw standing in medians. Scofflaws will face a $250 civil fine after their first warning and a criminal misdemeanor on their third offense.

It already was illegal to stand in some medians around the city, such as ones owned by the state near freeways that are marked by signs warning of trespassing. People have tended to stand on those anyway, and officers in the past have typically asked them to move, Lt. Matt Giordano said.

But the police will begin enforcing those more rigorously, he said.

Council members heralded the measure as a long-needed public-safety improvement. But some fear the law could disproportionately punish homeless or impoverished people who stand in medians to collect money from passers-by.

Safety concerns

Giordano was assigned to the traffic bureau about two years ago. He started looking at the statistics and considering possible ways to curb those numbers.

In 2013, there were 147 injuries or fatalities from jaywalking citywide.

Nine out of 10 times, he said, the pedestrian is at fault, he said.

"The person driving the vehicle ... they're driving within the speed limit, they're not impaired, they're using their seat belt and a pedestrian comes out where it's not expected," he said. "That doesn't make them feel any better that they killed someone."

The police launched a couple of educational and enforcement campaigns since. Police spent weeks stopping pedestrians they found crossing roads in non-designated areas to talk about the risks. Next, they educated people they found darting across light-rail tracks about the risks.

The next move, Giordano said, was the ordinance.

Council members said they hope the ordinance ends an issue they and their constituents have encountered for too long. They pointed to individuals who stand in the median to advertise car washes or sell Girl Scout cookies as part of the problem.

"It has become a major problem on so many roads," Councilwoman Thelda Williams said.

A national trend

There is a growing trend among cities nationwide to pass laws that criminalize homelessness, said Jeremy Rosen, director of advocacy at the National Law Center on Homelessness and Poverty in Washington, D.C.

Such ordinances, typically billed as public-safety measures, wind up punishing homeless people for activities they cannot avoid, he said.

In 2014, the number of cities passing bans on begging increased by 25 percent, while that figure rose by 60 percent for cities banning camping citywide, according to a report by Rosen's organization.

Jerry Jones, the executive director of the National Coalition for the Homeless, said he considers laws that ban median-standing as criminalizing measures. It's an attempt, he said, "to make homeless folks less visible."

A federal court struck down a similar law in Portland, Maine, after the American Civil Liberties Union of Maine argued that it violated free speech.

A spokesman from the ACLU of Arizona said the Phoenix law has the potential to prohibit free-speech, and the group will watch to see how officers enforce the Phoenix law.

An inch, not a mile

But city leaders, police and even homeless advocates have agreed the law was not intended to criminalize homelessness.

The main concern is to make sure the police enforce the ordinance equally, regardless of who stands in the median. Rosen said laws such as the Phoenix ordinance can lead to certain groups getting targeted.

"This would be an inch toward criminalization, not a mile," said Brad Bridwell, with Cloudbreak Communities, a special-needs housing developer for homeless veterans.

Both he and Michael Shore, who chairs the Arizona Coalition to End Homelessness, told the council before the vote that the law could throw homeless people into a cycle of fines they could never pay.

The effect would be twofold, they said. The city would expend resources by cycling offenders through Homeless Court only to dismiss fines they didn't have money to pay. And the homeless individuals slapped with misdemeanors would be barred from housing options that ban people with criminal records.

However, Shore and Bridwell became comfortable with the measure after the council agreed to require police to formally warn all people who stand in medians.

Both also said Phoenix treats the homeless population much better than other cities, and couldn't point to any existing laws that criminalize the homeless.

"I don't see it spiraling out of control under (Mayor Greg) Stanton's leadership," Shore said. "It still has the potential. We'll wait and see."

Giordano said the officers look to connect homeless people they interact with to services.

A program that launched this summer, known as the Misdemeanor Repeat Offender Program,encourages officers to connect runaways, mentally ill and those without serious criminal backgrounds to city social workers.

Giordano stressed that the group that formed the new ordinance did not seek to end panhandling.

"We wanted to make sure we weren't targeted any one group. Panhandling is protected free speech," Giordano said.

Benham, who has lived on the streets for five years, makes his living by panhandling. He'll stop by churches for a free meal occasionally, but he said he made a promise to himself years ago that he was going to at least make enough money to choose where he eats.

The former Fry's employee actually found panhandling brought in up to $100 a day or so a few years ago, but lately the amounts are much smaller.

He said he was accustomed to police officers waiving him off the medians in the past. But with the added fines and enforcement?

"Chances are I'll go to jail at least once."

(Contributing: Dustin Gardiner)