Shelbyville City Council held a “panhandling workshop” Thursday to find legal solutions for enforcing an ordinance that could prohibit panhandling.
But it’s not as simple as just banning panhandlers.
In fact, “I don’t know of any case that shows success in restricting panhandling unilaterally,” said Shelbyville City Manager Joshua Ray.
First Amendment violations
Prohibiting panhandling, overall, is a violation of the First Amendment of the United States Constitution, according to City Attorney Ginger Bobo Shofner.
“If you try to just ban, outright, panhandling, anyone you go to for a legal decision or legal opinion is going to tell you that’s going to be unconstitutional,” said Shofner.
In 2015, in the case of Reed v. Town of Gilbert, the U.S. Supreme Court explained that “laws that discriminate against speech on their face or in their purpose are considered content-based and are subject to strict scrutiny. The court’s decision has led to lower courts invalidating panhandling laws as impermissible content-based restrictions on speech” (First Amendment Encyclopedia, August 2017, Marc-Georges Pufong.)
Shofner said the biggest “risk” for the City could be being sued for First Amendment violations. The police as well could face personal liability for violating a constitutional right by arresting a panhandler.
Part of the discussion also included businesses, schools, and civic organizations promoting fundraisers. But this can be an exception since it is for businesses and not personal use, Ray assured.
On the other end, aggressive panhandling is already handled by the police department.
The State of Tennessee defines “aggressive panhandling” as someone who solicits donations by touching a person, obstructing a path, following a person, or making a person feel fear (Tennessee Code Annotated 39.17.313).
A first violation is a Class C misdemeanor while a second violation is a Class B. Violations are punishable by fine or imprisonment of 90 days or less.
Panhandling on private property can be defined as trespassing, which presents other issues to divulge.
If the City were to enact an ordinance, it would need to “make it as narrow as possible,” Shofner advised.
To do that, the City would need to define what exactly the problem is— such as pointing to traffic or safety issues—and how it can be limited while remaining “content neutral” towards the “speech” panhandlers are portraying.
But the problem is, Shofner said, the City cannot identify the exact problem.
And if it was passed, the punishment could only be a cite (with a $50 or less fine) and release. Panhandlers could potentially keep going back, according to Shofner.
“There’s one thing to write a law; it’s a whole other thing to be in the real world and enforce it,” said Shofner.
Other City ordinances
During the workshop, Council looked to other Tennessee cities to consider adopting their solutions to panhandling.
The City of Brentwood has the strictest statute— one that does not mention “panhandling” at all, according to Shofner— which prevents anyone from soliciting donations/ employment from a car that’s on a right-of-way (like a grassy median).
It also mentions the many exceptions to the statute. Brentwood was involved in a federal lawsuit over a decade ago, according to Shofner, in which they were sued by a local business that passed out pamphlets on the side of roads.
The city changed their ordinance to reflect that case. But the ordinance was approved in 2012 by the 6th Circuit Court of Appeals— before the Reed v. Gilbert case.
Shofner emphasized that the ordinances have not been legally challenged since that 2015 case and cannot be certain of the constitutionality of the statute.
The City of Memphis had ordinances banning panhandlers in specific zones in 2010. But Ray said those limitations have since been challenged.
Council member Stephanie Isaacs said, “I know y’all have good intentions with this but like with COVID and with the property that’s here right now, there’s not a lot of places for homeless folks to go...I would hate for a law like this to hurt people that really are in need of help.”
Council members Henry Feldhaus and Gary Haile suggested taking the ordinance from a safety standpoint.
On Castle Street, for example, “You’ve got a couple who sits there, and I’ve actually seen them, they almost got hit...What I’m saying is if they get hit, unintentionally—because they’re almost sitting in the street—what do we do about that?” said Council member Gary Haile.
Shelbyville Police Chief Jan Phillips, who attended Thursday’s workshop, said he’s talked with all of the main panhandlers around Shelbyville—many of whom are drawing disability and panhandle to supplement their income.
“We take the oath to not violate the Constitution of the United States...and if it’s in violation of their First Amendment rights, we can’t enforce that. I can’t ask my officers to do that,” said Phillips.
He said his opinion is to start with signage.
For now, the Council agreed on the suggestion to put up signs throughout the City that say “Say no to panhandlers...Donate to charities,” to educate the public on how they should respond to panhandling.
This has been done in the City of Cookeville after their city council voted down a stringent ordinance against panhandling, according to Ray.
Chief Phillips stated the analogy, “I can’t catch the moles, but if you kill the grubs, the moles will leave. So, if you don’t feed them, they’re going to go somewhere else.”