Salem City Council Versus the Panhandlers

Private property can be protected in some cases, but public areas like roadsides, corners, public parks and the like cannot be, as the courts have ruled pretty consistently.

(SALEM, Ore.) - At the December 3rd 2007 meeting of the Salem City Council there will be, amongst other things, a discussion of proposed ordinance changes regarding 'panhandling'.

Panhandling is defined as "To obtain by approaching and begging from a stranger".

It is also defined, by the US Supreme Court (Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980); Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000); Loper v. New York City Police Dept., 999 F.2d 699, 704 (2nd Cir. 1993) and many other cases).

Private property can be protected from such activities, for the most part, but public areas, especially public rights of way like roadsides, corners, public parks and the like cannot be, as the courts have ruled pretty consistently.

Which makes me marvel, again, at the Salem City Council and their ongoing apparent penchant for trying to do the unconstitutional and wasting the public's money (taxes) doing so.

They tried to attack lap dancing in a similar manner and the ordinance was ruled unconstitutional. But even though several spoke at the council meeting against the plan, and no one spoke in favor of it, the Council decided to pursue a doomed appeal anyway, wasting taxpayer dollars.

And they (the Council) wonder why voters vote against tax increases and bonds... the voters figure that if the government can waste money like this then they clearly do not need any more.

And yet we now find Councilors Brad Nanke and Dan Clem planning to ask city staff to bring back information on a new Medford ordinance, which prohibits panhandlers from asking for money at intersections with traffic signals.

Roseburg and Medford are on the road to high legal bills and lawsuit judgments against them. Anyone they cite for violation has legal standing to sue and the ACLU and others stand ready and willing to give them all the legal firepower they might need to do so.

So why is the Salem City Council in such a rush to flush our limited tax dollars down this particular drain?

The City Council has already recklessly and needlessly volunteered to spend ten million dollars, or more, to fix up all the sidewalks in Salem, Oregon before handing back responsibility to the abutting landowners.

This decision not only sucks up a vast amount of tax money but also, from the position of those wanting to see the sidewalks fixed sooner rather than later, it takes the date where most repairs would be finished from less than a year from now and pushes it deep into the distant murky future, if ever. This decision has caused plans for a class action ADA lawsuit against the city on the matter to move forward.

If you ask me, the last thing the City Council of Salem, Oregon should be doing is wasting money, especially if they are violating constitutional rights to do it.

Salem allows a regular fundraising 'event' around city hall where firemen wander around through traffic soliciting donations to be put in a boot.

The public schools seek to bolster waning budgets by sending swarms of kids home and into neighborhoods to ply emotional extortion to raise money for various activities from bands to sports to field trips etc.

So will all these 'panhandling' activities be stopped too? Or will just some, those deemed 'unworthy', be curtailed?

Since when does any level of government have the right or place to determine what aspect of speech or interpersonal interaction, is 'worthy' and which is not? The courts continually say they have no such right and no such place, yet they continue to try over and over again.

And from the perspective of those who value freedom and the concept of civil and individual rights, this is a very dangerous practice, harmful to the core concepts that raise this nation above that of the most craven and base dictatorship.

Those in positions of power, it appears, need to be reminded of this from time to time.

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Jefferson December 10, 2007 12:14 pm (Pacific time)

I guess I'm fortunate that I have never had any direct contact with panhandler's, so their agressive behavior is simply an unknown. Though I intend on asking my personal shoppers if they have had negative experiences and will compensate them if warranted. Thanks for this engaging article Neal, no doubt you have hit your "zenith" with this one little buddy...

Anonymous December 6, 2007 11:07 am (Pacific time)

One more thing - I wonder why no other buses or similar enclosures have popped up around town since Coffee in Motion was allowed to place their bus (by the way, they thumbed their nose at the City by continuing to operate beyond the date that they were specifically told that they must cease operations). It is difficult to believe that nobody else asked for the special dispensation that the bus received. I can only imagine that anyone else was turned down and, like the other business people mentioned in my earlier post, those people are being placed at a competitive disadvantage by the City. Nobody really cares about this (so there is no political outcry) because poeople just want to buy good stuff at low prices - but, as a matter of law, these situations should be challenged.

Anonymous December 6, 2007 10:53 am (Pacific time)

I have one more comment on this issue that few people care about or understand - The importance of this matter is that people should be treated equally by government. This is especially important for businesses that need to compete. Councilor DeHart has a very legitimate concern because the bus required very little investment compared to the investment he was required to make. By granting special favors or overlooking violations, the City actually provides a competitive advantage to those who receive favor. Another example is the sign code. Since nearly all temporary signs in Salem are illegal, any business person who wishes to compete is placed at a disadvantage if he were to abide by the code. Do we really want to live in a society where lawlessness is encouraged?

isuggest December 5, 2007 5:21 pm (Pacific time)

Sorry Councilor - I did say that not all councilors lack integrity - you may include yourself in the "good guy" category if you wish - I certainly consider you to be well meaning and sincere. The issue I raised here was whether Council respects the law. During the bus discussion (which you more or less excused yourself from), I think you would have to admit that Council demonstrated, at a minimum, a lack of respect for the law (as they tried so hard to find ways around it). My impression was actually that Councilors showed a level of contempt for the law because the code prevented them from allowing the bus to remain. As far as subsequent Council action, it seemed to me that a revision to the code which was made about 2 months later (approved by Council) - which granted Tom Phillips more power - was taken in response to the bus issue. I do not actually recall what the justification was for allowing the bus to remain. I think it still violates state law - but I may be mistaken. The concern expressed by Randall was that others (Councilor Clem mentioned "roach coaches") could follow suit. Presumably, by granting special powers to Mr. Phillips, he would be able to stop others from doing what Josh was allowed to do. I would also like to express my deepest apologies to Chuck Bennett.

Neal Feldman December 4, 2007 11:27 pm (Pacific time)

Councilor DeHart - Welcome! I appreciate your coming here and clarifying the points. I found most amusing your correcting it is not Bill Bennett fighting the sleaze as I, for one, have always considered Bill Bennett one of the sources of sleaze. Kudos to Chuck. I was a tad disappointed that you did not take the opportunity to try and defend (if you can, or at least try and explain) the council's actions in this matter. Ah well...

Brent DeHart December 4, 2007 3:25 pm (Pacific time)

To isuggest from Councilor DeHart: I agree the bus never should have been allowed to stay, but I could not do anything about it, nor even comment, as it is a competitor to my business. I don't know who told you your information, but the coffee bus issue never came to council (except for the owner whining to us), and the council never took any action on it whatsoever. Oh, and I think you mean Chuck Bennett, not Bill, who counteracts the sleaze.

Pat December 4, 2007 11:20 am (Pacific time)

No one should be allowed to wander through traffic, whether for a charitable organization or not! Sorry firefighters, unless you have a permit of some kind (parade maybe?), that’s wrong. I have nearly been rear-ended three times because the do-gooder in front of me has stopped - at a GREEN LIGHT - to hand CASH to the "poor man" on the corner. He's not a poor man, he can afford cigarettes and coffee (I’ve seen another panhandler doing coffee runs for him and the panhandlers on the other corners of that overpass), and someone (city?) had to put a trash can (which is overflowing) at this off-ramp to handle this "poor man's" trash. I remember reading an article about a year ago where they interviewed several of the panhandlers in the Portland area – NOT ONE denied being a junkie. IF WE DO NOT GIVE THEM CASH, THEY WILL GO AWAY. Because that’s what they need – the dealer doesn’t want canned goods. They’ll probably go back to petty theft or burglary to support their habits - but then we could at least arrest them!

Neal Feldman December 4, 2007 10:01 am (Pacific time)

James - then the same should apply to the firemen filling the boots. I'm sorry but while I agree that in cases of abusive panhandlers there are existing constitutionally sound laws to deal with such your apparent understanding of the disorderly conduct statute seems drastically flawed. What you describe is not necessarily disorderly conduct and the panhandlers with their signs at intersections are not, unlike the aforementioned firefighters, 'going out into traffic'.. they are standing on the side of the road and only going over to cars that offer them something. They are not doing this in moving traffic. So while I do not like seeing the panhandlers like this and while I rarely donate to them (and often if I do I will ask what they need (food, etc) and if I think it reasonable and I can afford it I will provide that. If they say food and I'm near a McDonalds I will get them a $1 double cheeseburger. I won't just hand them a dollar. If more folks would do as I do there would still be charity and compassion but not the cottage industry of panhandling. Also if treatment centers were funded adequately, shelters were funded adequately and the situation with the illegals was dealt with allowing more job opportunities and if the mentally ill were not just dumped on the streets etc etc etc there would also be much less of the panhandling. But while existing laws can help misapplying existing laws helps nothing. Here are the relevant ORS statutes to illustrate my points: 166.023 Disorderly conduct in the first degree. (1) A person commits the crime of disorderly conduct in the first degree if, with intent to cause public inconvenience, annoyance or alarm, or knowingly creating a risk thereof, the person initiates or circulates a report, knowing it to be false: (a) Concerning an alleged hazardous substance or an alleged or impending fire, explosion, catastrophe or other emergency; and (b) Stating that the hazardous substance, fire, explosion, catastrophe or other emergency is located in or upon a school as defined in ORS 339.315. (2)(a) Disorderly conduct in the first degree is a Class A misdemeanor. (b) Notwithstanding paragraph (a) of this subsection, disorderly conduct in the first degree is a Class C felony if the defendant has at least one prior conviction for violating subsection (1) of this section. [2005 c.631 §3] 166.025 Disorderly conduct in the second degree. (1) A person commits the crime of disorderly conduct in the second degree if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person: (a) Engages in fighting or in violent, tumultuous or threatening behavior; (b) Makes unreasonable noise; (c) Disturbs any lawful assembly of persons without lawful authority; (d) Obstructs vehicular or pedestrian traffic on a public way; (e) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; (f) Initiates or circulates a report, knowing it to be false, concerning an alleged or impending fire, explosion, crime, catastrophe or other emergency; or (g) Creates a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do. (2) Disorderly conduct in the second degree is a Class B misdemeanor. [1971 c.743 §220; 1983 c.546 §5; 2001 c.104 §55; 2005 c.631 §1]

James December 4, 2007 9:22 am (Pacific time)

Once again, we need to enforce current law. Each and every time a pan handler steps into the street to take a donation, if traffic impeded, they should be arrested for "Disorderly Conduct". The problem would soon go away on its own.

Neal Feldman December 3, 2007 11:28 pm (Pacific time)

I've watched poor mr Rosh do that. He has much more patience than I do. I would keep asking them why they insist on trying to do what the law won't allow and waste the city's money fighting and losing lawsuits and legal challenges instead of accepting their limits and working within those limits. It is good the city has him, even if he does get ignored way too much. Ah well...

isuggest December 3, 2007 12:58 pm (Pacific time)

Panhandling is legally protected speech. It reminds me of Council's position about strip clubs - another example of clearly established law which does not sit well with Council. Poor Randall Tosh - during Council meetings, I have often seen where a Councilor just does not like a law and whines about it - Mr. Tosh then patiently explains that law matters. When the councilor continues to protest, Mr. Tosh then, resignedly, says just go ahead then if you want to. The Councilor, being hit over the head with the obvious, then submits. It is as if Council treats law like an impediment which should be ignored or bypassed whenever it suits them. For most of them, they want what they want and anything that interferes must be wrong. Another example of disrespect for the law (and public safety) was when the espresso bus at Mission and 25th was allowed to stay. It was clearly against the law. Council tried everything they could to bypass the law - when that proved impossible (that pesky Tosh went ahead and spoke up), they changed the law (which, by changing the role of the head of Building and Safety, compromises the health and safety of the public). But they liked the owner and thought that the bus was "cute". It certainly makes one wonder if money is changing hands over land use matters - if the rule of law is considered unimportant, then it becomes easy to rationalize doing favors for people in exchange for some sort of consideration. To be fair, there are exceptions on Council - not all lack integrity but the overall tone of Council is still negative. Many of the decent and capable members of City Government are leaving or have left. They include Frank Walker, Rick Stuckey, Tim Gerling, and Bob Wells. We are fortunate to have Bill Bennett to counteract the sleaze. Mayor Taylor's recent "interview" with the SJ indicates that she supports development and is ok with dealing with the consequences as they arise. At the current rate, we will all be forced to carry extra fuel so that we can get across town.

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