ACLU-AZ Victory: Arizona's Anti-Begging Law Declared Unconstitutional!

Hooray for the ACLU-AZ!!! I'm thrilled every time criminal statutes for crimes of poverty are struck down, of course - especially things like this. I, personally, am much more irritated when wealthy politicians solicit me on my personal cell phone than when some guy bums a few quarters off of me at the freeway exit. 

I've panhandled before, myself, when things were pretty tough - it's a demoralizing way to make what amounts to less than minimum wage, if you're lucky. I don't know why we have to be so hard on each other when we're down in this country...

 "without money we'd all be rich..."

Firehouse Gallery, 1015 N. 1st st, phoenix

open Fri 6-11, Sat 1p-11pm, Sun 1-6pm

------------from the ACLU-AZ---------------

FOR IMMEDIATE RELEASE
Oct. 4, 2013

CONTACT: Steve Kilar, ACLU of Arizona, 602-492-8540 or skilar@acluaz.org

 

Arizona's Anti-Begging Law Declared Unconstitutional

Federal judge declares peaceful panhandling is protected speech
 

FLAGSTAFF – An Arizona law that made it a crime to panhandle peacefully in public places was declared unconstitutional today, as was Flagstaff’s practice of arresting, jailing and prosecuting people who asked passersby for money or food.

Today’s ruling abolishes a law used by police and prosecutors throughout Arizona to harass and arrest people for exercising their fundamental right of expression.

The American Civil Liberties Union of Arizona and Flagstaff-based attorney Mik Jordahl filed the suit on behalf of an elderly Hopi woman who was arrested in Flagstaff for begging.

In a judgment entered by U.S. District Court Judge Neil V. Wake, the anti-begging provision—A.R.S. 13-2905(a)(3)—was deemed unconstitutional on its face because it violated free speech rights granted by both the U.S. and state constitutions.

“Prosecutors and police across the state will no longer be able to use this anti-begging law to criminalize protected expression,” said ACLU of Arizona Legal Director Dan Pochoda.

“Flagstaff officials ignored the fact that constitutional protections for speech do not depend on public approval of the views expressed,” Pochoda said. “Flagstaff will no longer be allowed to elevate the interests of local business owners above the rights of persons seeking a dollar for food.”

Judge Wake’s judgment prohibits the use of the anti-begging statute for any purpose by law enforcement officials in Arizona. All law enforcement agencies in the state will be notified that A.R.S. 13-2905(a)(3) is void and shall not be used for any purpose.

In addition, the judgment permanently prohibits any law or ordinance from being used by the City of Flagstaff for the purpose of “interfering with, targeting, citing, arresting, or prosecuting any person on the basis of their act(s) of peaceful begging in public areas.”

On Feb. 22, 2013, a Flagstaff police officer wearing plain clothes arrested Marlene Baldwin after she asked him if he could spare $1.25 for bus fare. Baldwin, who is in her late-70s, less than five feet tall, disabled and losing her eyesight, was jailed. It was the second time Baldwin was arrested for begging.

“I'm glad I won't be taken to jail just for speaking to people,” Baldwin said. “I was arrested by Flagstaff police and prosecuted just for asking for food when I was hungry.”

In addition to Baldwin, the ACLU also represented Robert George and Andrew R. Wilkenson, panhandlers who became afraid to exercise their right to peacefully solicit because they were threatened with arrest. The ACLU’s fourth plaintiff was Food Not Bombs, a volunteer-run organization that regularly feeds the homeless in Flagstaff city parks.  Several of its members were arrested for requesting donations from passersby.

“Many of the people arrested under the begging law simply needed a little assistance—not a jail cell,” said Jordahl, who served as co-counsel with the ACLU. “Law enforcement must stand up for the constitutional rights of peaceful beggars and not just respond to complaints from powerful downtown business interests who would take those rights away and sweep homelessness and poverty out of sight."

In 2008, the City of Flagstaff adopted a policy in cooperation with local businesses—called “Operation 40”—to remove panhandlers from downtown areas by jailing them early in the day. Flagstaff utilized the now-void statute, which equated panhandling with loitering, to justify the arrests. Between June 2012 and May 2013, 135 arrests were made by the Flagstaff Police Department under the law.

The Arizona Court of Appeals and the 9th Circuit Court of Appeals have both struck down similar laws, including a Phoenix city ordinance.

Kelly Flood, ACLU of Arizona senior staff attorney, and Robert S. Malone, an attorney in private practice in Flagstaff, assisted with this case.

Read today’s order.

Read the complaint in the case.

POSTCARD-only policy in jails unconstitutional!

YAY for Prison Legal News - which is well worth the subscription, by the way.

 Hopefully this means the beginning of the end of the crummy postcard-only policy in the Maricopa County jail system. It really is unduly oppressive and drastically restricts freedom of speech both ways. It being thrown out in one jail doesn't mean that Joe Arpaio will change his policy without a fight, though. It means the prisoners in his jails need to file grievances about the mail policy violating your 1st Amendment rights - appealing them all the way to the top so you are in a position to sue when the last denial comes down - that's called "exhausting administrative remedies" - it shows you're trying to work things out in-house, by policy, before asking the court to settle your prisoner issues. 

I know the MCSO is worried about massive quantities of drugs being hidden in children's homemade birthday cards and the like, but I think they should start strip-searcing the guards (who are the biggest source of contraband in most jails/prisons) instead of strip-searching all the prisoner's  mail...they'd find a whole hell of a lot more contraband that way.

Besides, nothing beats a real letter...

Here's the link to the actual decision

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PLN prevails in challenge to postcard-only policy at Columbia County, OR jail

Prison Legal News, Jan. 1, 2013. Press release - PLN prevails in challenge to postcard-only policy at Columbia County, OR jail 2013

PRESS RELEASE

Human Rights Defense Center
For Immediate Release

April 25, 2013


Federal Court Strikes Down Postcard-only Policy at Columbia County Jail

Portland, OR – On April 24, the U.S. District Court for the District of Oregon, Portland Division, held that a postcard-only policy at the Columbia County Jail, which restricted mail sent to and from detainees at the facility to postcards, is unconstitutional. The court therefore has prohibited enforcement of the policy permanently – the first time in the United States that a jail’s postcard-only policy has been struck down following a trial on the merits.

The ruling, by federal judge Michael H. Simon, was entered in a lawsuit against Columbia County and Sheriff Jeff Dickerson filed by Prison Legal News (PLN), a non-profit monthly publication that covers criminal justice-related issues. PLN, a project of the Human Rights Defense Center, sued in January 2012 after Columbia County jail employees rejected PLN’s monthly news publication and letters mailed to detainees. Further, the jail had failed to provide PLN with notice or an opportunity to appeal the jail’s censorship of PLN’s materials.

The rejection of PLN’s publications and letters was attributed to the jail’s postcard-only policy and a policy and practice that prohibited detainees from receiving magazines. PLN contended that such policies violated its rights under the First Amendment, and that the lack of notice and opportunity to appeal was a violation of the Fourteenth Amendment.

During the litigation, the defendants admitted “that inmates have a First Amendment right to receive magazines and inmates and their correspondents have a Fourteenth Amendment right to procedural due process.” However, the jail defended its postcard-only policy and claimed there was no official policy banning magazines at the jail.

On May 29, 2012, Judge Simon entered a preliminary injunction prohibiting the defendants from enforcing their postcard-only policy. He ruled that the policy "drastically restricts an inmate’s ability to communicate with the outside world," and "prevents an inmate’s family from sending items such as photographs, children’s report cards and drawings, and copies of bills, doctor reports, and spiritual and religious tracts." The court also observed that the jail’s postcard-only policy "inhibits rehabilitation," citing a U.S. Supreme Court decision that found "inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation." Undeterred, the defendants continued to defend their policy at trial, held from February 5 to 8, 2013.

Following the trial, the district court found in its April 24 ruling that the defendants’ rationales for adopting the postcard-only policy at the jail – preventing the introduction of contraband and saving time during mail inspection – were not supported by the evidence.

The court also determined that jail employees “did not in fact allow magazines to enter the Jail,” and that a ban on magazines was specifically declared in the jail’s inmate handbook, in a jail memorandum and on the jail’s website. Further, "Sheriff Dickerson credibly testified that he did not know that the First Amendment required the Jail to allow inmates to receive magazines when he took office in 2009." The district court therefore concluded that the defendants had a policy and custom of prohibiting magazines, in violation of the First Amendment.

Accordingly, Judge Simon entered a permanent injunction that enjoins the defendants from restricting incoming and outgoing mail to postcards only. "[T]he postcard-only policy creates a hurdle to thoughtful, personal, and constructive written communications between an inmate and his or her unincarcerated family and friends," he wrote. He also declared "that inmates have a First Amendment right to receive magazines and that it would be unconstitutional for Defendants to refuse to deliver magazines to inmates solely because they are magazines," and that detainees and their correspondents have a right to procedural due process when mail is rejected, including notice of the rejection and the ability to appeal same.

"This lawsuit could have been avoided had Sheriff Dickerson not enacted an unconstitutional, harmful policy that limited correspondence to and from detainees to postcards, and had he ensured that jail employees were properly trained as to the First Amendment and due process rights of both detainees and those who correspond with them," stated PLN editor Paul Wright. "Unfortunately he failed in both of these respects, and the court’s ruling is the result."

"The court’s well-reasoned and thoughtful opinion is notice to other jails that a postcard-only policy does not serve a legitimate purpose, and indeed harms the public interest. Jails would do well to steer clear of adopting ineffective policies that violate the Constitutional right of free speech," added attorney Jesse Wing, who represented PLN at trial.

PLN was represented by Marc D. Blackman with the Portland law firm of Ransom Blackman, LLP; Jesse Wing and Katie Chamberlain with the Seattle law firm of MacDonald Hoague and Bayless; and Human Rights Defense Center general counsel Lance Weber and staff attorney Alissa Hull. The case is Prison Legal News v. Columbia County, U.S. District Court for the District of Oregon, Case No. 3:12-cv-00071-SI.

________________________


The Human Rights Defense Center, founded in 1990 and based in Brattleboro, Vermont, is a non-profit organization dedicated to protecting human rights in U.S. detention facilities. HRDC publishes Prison Legal News (PLN), a monthly magazine that includes reports, reviews and analysis of court rulings and news related to prisoners’ rights and criminal justice issues. PLN has around 7,000 subscribers nationwide and operates a website (www.prisonlegalnews.org) that includes a comprehensive database of prison and jail-related articles, news reports, court rulings, verdicts, settlements and related documents.


For further information, please contact:

Paul Wright, Editor
Prison Legal News
(802) 257-1342 (office)
(802) 275-8594 (cell)
pwright@prisonlegalnews.org

Jesse Wing, Attorney
MacDonald Hoague & Bayless
705 Second Avenue, Suite 1500
Seattle, WA 98104
(206) 622-1604 (office)
jessew@mhb.com