Through a bit of semantic and legal chicanery, and the assistance of Michigan Attorney General Bill Schuette, Flint Township may have found a way to skirt the First Amendment and keep panhandlers from soliciting on city streets.

Originally the township board had intended to enact an over-reaching ordinance prohibiting the act of begging in numerous public spaces, but upon learning such laws are a blatant violation of First Amendment protections, they decided to finesse the language a bit. What they’ve done instead is to craft a carefully worded law requiring street-side panhandlers to obtain a permit, and for good measure, they threw in nonprofit fundraisers as well to create the appearance of fairness.

Specific language makes it “unlawful for any person, without authority, to receive or to attempt to receive money or any other object or thing from an occupant of a motor vehicle.”

This creates a number of legal questions and pitfalls for the township. Additionally, there is the unmistakable message this ordinance sends to those unfortunate souls who find themselves down on their luck — you’re not welcome here folks, move along now.

This is a lawsuit waiting to happen.

The ordinance is loosely written in the spirit of a state law, which concerns itself primarily with preventing the obstruction of traffic as a matter of public safety. The salient point of the state law is that the activity must physically “block, obstruct, impede, or otherwise interfere” with traffic. Yet, street-corner panhandlers typically station themselves at intersections with traffic lights — relying on the intervals as an opportunity to receive assistance.

Enforcement of this law would require a demonstration that the individual actually obstructed the flow of traffic.

The permitting process is even more problematic. First, will it be carried-out in a fair and impartial manner? Will there be an onerous amount of paperwork? Will there be a fee attached to the permit?

A related decade-old law in Traverse City recently fizzled under legal scrutiny. In 2003, the city enacted a “busking” permit ordinance designed to keep order on sidewalks during a sudden upsurge in street performances.

Earlier this year, two Traverse City brothers were ticketed for playing the guitar on a sidewalk without first obtaining a $40 permit from the the city. They were charged substantial fines, which they challenged — with the help of a bevy of local attorneys who stood in line to offer pro-bono support citing First Amendment concerns over the law. The city backed-down and took a hard look at the ill-thought ordinance.

The American Civil Liberties Union has a history of aggressively fighting anti-panhandling laws. Michigan has plenty of them — and they are, not surprisingly, being safeguarded by politically motivated Attorney General Bill Schuette. A 2011 ACLU challenge of a state-wide law banning panhandling resulted in the U.S. District Court of Western Michigan finding the law unconstitutional. Schuette filed an appeal to the U.S. Sixth District Court of Appeals where he lost in a unanimous ruling from the three judge panel. Schuette’s office additionally assisted Flint officials, giving them a green light to act as the primary authority in writing and enforcing their new ordinance based on the motor vehicle statute.

In late 2013, the Michigan ACLU sent letters to 84 municipalities across the state notifying them that their unconstitutional ordinances must be repealed. ACLU attorney Dan Korobkin describes the problem in the state:

“Anti-begging laws that punish that most vulnerable segment of our society are not only harsh, they are unconstitutional. No one should be thrown in jail or subjected to a fine for holding up a sign or simply asking for spare change. In the wake of the appeals court decision, we’re putting these cities and townships on notice that it’s time they repeal their unconstitutional ordinances. Our municipalities cannot and should not use the force of law to silence the voices of innocent people who rely on charity to survive.”

Alerted to a pending Flint Township rule the ACLU sent a letter to officials reminding them of the constitutional issues. The legal shot over their bow prompted the revision in wording to include non-profits, and to cleverly couch it in the language of the state law prohibiting the obstruction of traffic.

The community of Roosevelt Park in Muskegon County is also talking about the possibility of implementing a non-soliticitation ordinance. Nearby Norton Shores recently rejected a proposal that would have limited individuals’ First Amendment rights to solicit in public spaces, while allowing organizations to continue public fundraising. City Attorney Doug Hughes told the council that the proposal allows for “disparate treatment for charitable organizations, and would not pass constitutional muster.”

The new Flint ordinance is an invitation for expensive litigation. MLive reports that the origin of the law — to banish panhandling altogether, is a clear marker of its actual intent. Attorney Glenn Simmington put it simply:

“This federal court won’t have to go very far. You already have a motor vehicle code you can enforce for that purpose.”

The new ordinance gives license for Flint law enforcement to harass its neediest citizens — that speaks volumes about the community.

Amy Kerr Hardin