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Springs Council considers making certain medians off-limits with an untested new law 

Another crackdown?

click to enlarge Matthew Leighway doesn't want to be out here — he panhandles to survive. - NAT STEIN
  • Nat Stein
  • Matthew Leighway doesn't want to be out here — he panhandles to survive.

Matthew Leighway is perched on a thin median of North Murray Boulevard, holding a sign that cheekily solicits donations.

"I'm not bothering anyone," the 56-year-old says, "just trying to get by, not dealing drugs or anything."

Leighway has just found out (from this reporter) that soon it may be illegal for him to panhandle here. He says he started seeking spare change last spring after losing his janitorial gig and apartment. He hasn't found a new job — let alone one that puts his college degree to use — so he camps, flying his sign in different spots on different days.

Over a span of about 15 minutes, three or four drivers roll down their windows to hand Leighway small bills. They're stopped at a red light during the transaction, of course, but when the light turns green, the cars get moving — fast. The speed limit here is 35 miles per hour, but to assume everyone abides by that may be optimistic. Each passing car imparts a swift rush of wind, making this narrow median feel like the tiniest refuge in the eye of a storm.

Asked whether he feels safe standing here, Leighway is taken aback. "Safe?" he asks. "No, it's rough out here."

Then he adds with a grim chuckle, "It's not the medians, though."

Mayor John Suthers and his many allies on City Council, however, are markedly more concerned about Leighway standing on this median — supposedly because it's unsafe for both pedestrians and drivers.

Should those city leaders get their way, it would be illegal to "access, use, occupy, congregate, or assemble" on medians that are "not designed or suitable" for pedestrians — namely those that are domed, less than four feet wide and on high-volume roadways with speed limits over 30 mph. The traffic engineering department would post warning signs near such medians, then cops could ticket anyone standing on them. Violating the ordinance wouldn't be a jailable offense, though it would carry a fine up to $500.

Council first discussed this proposed ordinance at a Jan. 9 work session. There, Senior City Attorney Anne Turner told Councilors that, as far as she knows, this law would be the first of its kind in the country.

"Courts generally regard medians as part of the traditional public forum that's open to protected speech activities," she said, reminding Councilors that a year ago, they repealed a median ordinance seen as too similar to ones courts had deemed too broad.

"The right to engage in First Amendment expression is not unfettered, though," Turner continued. "That's why we've narrowly tailored this ordinance to really direct restrictions to the most dangerous medians within the community."

Kathleen Krager, head of the city's traffic engineering department, testified that cars' protruding side mirrors, distracted driving and pervasive speeding all pose a risk to people on medians. She didn't cite any local examples but noted that statewide, pedestrian traffic accidents are increasing.

Councilors mostly expressed support for the preventive measure, trading anecdotes about panhandlers' disagreeable behavior.

Don Knight recounted when the driver of a car in front of him slowed to give money to a panhandler, blocking him from getting through a green light. Knight was annoyed. "But most of the unsafe peddling I see happens from the sidewalk, not the median," he said. "So hopefully this is just Step 1."

Andy Pico agreed, saying, "Frankly, it doesn't go far enough." But he wanted to make sure the proposed ordinance accommodates pedestrians who don't make it across a street before the light turns, then have to wait on the median.

Indeed, because the ordinance is "content neutral," it applies to the slow-moving senior citizen as much as to the younger, grungy panhandler. So the accommodation Pico wants would come only through enforcement.

Police Chief Pete Carey addressed the matter by saying he'll instruct officers to wait and observe an offender for a minute or two before deciding to issue a citation.

The obvious went unstated: Poor and homeless people are the ordinance's primary target. Councilor Bill Murray came close to stating that by asking Turner if the City Attorney's Office had gotten any feedback from "folks who are engaged with these populations."

"The short answer is 'no,'" Turner replied. "We may get feedback in the interim and there's still an opportunity for tweaks if we think it'll serve us long-term."

The elephant in the room is that the city previously has violated homeless people's civil rights — and paid the price.

Local police, prosecutors and judges were found to be improperly criminalizing people who did nothing more than fly a sign. The panhandlers were cited under the city's ordinance outlawing aggressive solicitation, which includes intentional physical contact, obstruction, threats, profanity and intimidation. Merely asking for charity, whether verbal or with signage, is the same kind of protected speech that lets Girl Scouts sell cookies on street corners, courts have found. Nonetheless, indigent defendants wrongfully convicted of aggressive solicitation were sentenced to jail time when they couldn't pay fines.

At the urging of the American Civil Liberties Union (ACLU), the city attorney instructed police to stop citing passive panhandlers in fall of 2015. Later, in a court settlement, the city agreed to drop charges, vacate sentences and void warrants in nearly 400 panhandling cases. The $103,000 settlement compensated 66 people.

So, keeping it constitutional going forward would be in everyone's best interest.

Mark Silverstein of the ACLU believes the median ordinance is not narrowly tailored. "They're going to make it a crime to cross the street, then leave selective enforcement up to police discretion," he said. "Look, we know this ordinance ultimately targets the impoverished and homeless."

For now, the ACLU doesn't plan to oppose the measure or challenge it if enacted.

Local civil rights attorney Phil Dubois, on the other hand, sees no issue with the proposed ordinance. "It will stand up," he writes in an email to the Indy. "I don't know whether other cities have similar ordinances, but I also don't know of any constitutional right to occupy a median."

Defending that right is not exactly the hill where homeless advocates want to die. But, they argue, to make sitting on downtown sidewalks or panhandling on sketchy medians a crime is fundamentally the wrong approach to addressing the myriad causes of homelessness.

Trig Bundgaard of the Coalition for Compassion and Action, an activism and outreach organization, implored Councilors to acknowledge that, although in theory the ordinance could apply to anyone, it's really aimed at poor people. "Why are we fining people who are out there to get money?" he asked during public comment the day after the work session. "Stop trying to legislate away poverty instead of putting programs in place that actually help people."

As for Leighway, the panhandler on that median out east, what comes of all this politicking at City Hall is of little concern.

"If they want to stop me from standing here, I'll just move over there," he says.

"I'll keep doing what I've got to do."

Council's first reading of this proposal will be at City Hall on Jan. 24.

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