Over the past week and a half, the city's communications office scored a major coup, using local media to manufacture a legal victory it never earned.
At issue was a downtown panhandling ban that was challenged by the American Civil Liberties Union. The city suffered a loss in court in December when Denver District Court Judge Marcia Krieger granted an injunction, preventing the law from going into effect because it was likely unconstitutional.
But even as it has vacillated on how to respond (see Noted, p. 19), the city has been trying to twist Krieger's decision, saying that the judge actually granted it a partial victory by "upholding" a rule that panhandlers must stay 20 feet from the entrance to any building.
One problem: That portion of the law was never challenged.
Nevertheless, on Saturday, Feb. 9, the Gazette carried the story on the top of its front page with the headline "20-foot rule stays in city."
Variations on the story later were reported on local TV news, and on other media outlets. FOX 21 actually ran with the headline, "Federal judge: Springs downtown panhandling ban OK."
The coverage was cheered by the city, which issued a release stating, "Federal Judge Marsha [sic] Krieger has affirmed that active solicitation within 20 feet of a residential or business entryway is prohibited throughout Colorado Springs. Her recent preliminary injunction only applies to the creation of a Downtown no-solicitation zone."
The release quoted Mayor Steve Bach as saying, "The City appreciates Judge Krieger upholding the twenty feet solicitation buffer. This will help improve commerce and reduce unwanted solicitation of citizens and visitors."
Interestingly, while the mayor led the charge to ban panhandling downtown, his proposal never included the 20-foot rule.
It was City Councilors who made that amendment, after arguing the mayor's proposal didn't go far enough to protect city businesses outside the downtown area. And the amendment was actually attached to the city's long-standing ban on aggressive panhandling.
The ACLU wasn't interested in challenging that rule — aggressive-panhandling bans are common and have fared well in legal challenges.
"From the beginning of our lawsuit it was clear to the judge and to the city attorney that the only portion of the City Code being challenged was the downtown no-solicitation zone," ACLU legal director Mark Silverstein says. "There were several express statements in our legal papers that confirmed to the judge and the parties that the challenge did not include the 20-foot rule."
A judge cannot rule on a law that isn't challenged.
Nevertheless, the city became confused after Krieger's ruling and asked if it could still enforce the ban on aggressive panhandling, including its 20-foot amendment.
Krieger's response to the city's question was one sentence long, and had an eye-rolling quality to it: "The injunction is limited to the portion of the ordinance that is the subject of this litigation," she stated.
The city never responded to a request for comment for this story, though it was given days to do so.
However, it did stop bragging about Krieger's response, and Bach's office tweeted a clarification on the subject on Feb. 13, stating that the 20-foot rule is "a portion of the ordinance not halted by the judge's injunction."
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In short, vote No, No, and No.