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U.S. Judge Blocks Law Against Begging

Courts: Temporary injunction cites bias because new measure only applies to people soliciting money.

October 31, 1997|BETH SHUSTER and HENRY WEINSTEIN | TIMES STAFF WRITERS

A federal court judge barred Los Angeles from enforcing its new anti-panhandling law Thursday, saying the 3-month-old ordinance outlawing aggressive begging is discriminatory because it applies only to people soliciting money.

In issuing his preliminary injunction, U.S. District Judge Richard A. Paez said the law contains "content-based discrimination" because it treats requests for money differently from other kinds of solicitation. In addition, the judge said portions of the city ordinance already are covered by existing laws.

Paez's order will remain in effect until he decides whether or not to issue a permanent injunction--either by summary judgment or after a trial. Thursday, Peter Eliasberg, an attorney for the American Civil Liberties Union of Southern California, which challenged the law, said he plans to ask the judge to rule without a trial.

"In order for a plaintiff to secure a summary judgment, the plaintiff has to show both that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law," said Evan Caminker, professor of law at UCLA Law School. "The relevant question would be, is it clear that the law is a content-based restriction under the 1st Amendment or is there some factual dispute?"

The law has not yet been implemented, officials said, because the Police Department is still reviewing its guidelines for enforcement.

The ACLU sought the preliminary injunction based on its belief that the law is unconstitutional because it violates the 1st Amendment and is overly broad and unclear.

"In our view, when you discriminate between types of speech because of the content of the speech you violate the 1st Amendment," said Carol Sobel, an ACLU attorney. "The city should go back to the drawing board. There's no way this can survive."

USC constitutional law professor Erwin Chemerinsky said that either the ACLU or the city could prevail on a summary judgment motion or later at a trial if the judge decides against granting a summary judgment because he has concluded that there is a dispute on a material fact.

Chemerinsky said "the extent to which panhandling is a threat to public safety could be regarded as a factual issue" that would require a trial. He said it would be likely that the city would argue that no summary judgment should be granted to the plaintiffs until witnesses had testified on this issue. If the judge agrees, Chemerinsky said, the city could call as witnesses individuals who allegedly had been accosted and / or police officers who had witnessed such incidents.

On the other hand, Chemerinsky said that plaintiffs potentially could marshal one of two arguments--or both--on why a summary judgment should be granted. First, they could contend that there is no indication from the record--such as affidavits, depositions or other discovery materials--that there is a public safety issue. Or the plaintiffs could contend that even if there are public safety questions, "the ordinance is so over-broad that no set of facts could make it constitutional."

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The abusive panhandling law, which was signed by Mayor Richard Riordan in July and became effective a month later, bars abusive begging, panhandling near bank ATMs, asking motorists for money and washing windshields without permission.

City Councilman Joel Wachs, the law's sponsor, said he believes the law ultimately will stand up to the legal challenges, saying it was a way for the city to deal with threatening panhandlers.

"We feel confident it ultimately will be upheld," Wachs said. "I would urge that we appeal this decision immediately."

The measure was strongly backed by Riordan, who considers aggressive begging a "quality of life" issue. Los Angeles' law was patterned after a similar statute in Santa Monica, which was upheld in federal court last fall.

Riordan also said Thursday that he believes the law ultimately will be upheld.

"The law-abiding citizens of Los Angeles--and the thousands of tourists who visit our city--deserve to be able to walk our streets without fear for their well-being," the mayor said in a statement. "I believe the city's abusive panhandling ordinance is legally sound and does not compromise the rights of people who are down on their luck."

But to the law's critics, the ordinance is a direct hit on the people most in need of the city's help--the homeless and the poor.

"This law would have allowed people to get petitions signed . . . but the minute you mention the word money you could be handcuffed and taken off to jail," said Jerry Rubin, director of the Los Angeles Alliance for Survival and one of the plaintiffs in the case. "I think this started out as another unfortunate attempt to deal with the tragic issue of homelessness."

Wachs said he believes, however, that people should not be begging for money near bank money machines and in other places where people "are captive."

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