United States District Court, E.D. Louisiana
GARY BLITCH ET AL.
CITY OF SLIDELL ET AL.
ORDER AND REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE
requires would-be panhandlers to register with the chief of
police and wear identification before asking their fellow
citizens for money. Because that offends the United States
Constitution, the Court grants plaintiffs'
motion for summary judgment, denies
Slidell's,  and issues a permanent injunction against
enforcement of the ordinance.
2015, the City of Slidell has received seventy complaints
relating to panhandling or solicitation-based offenses. Yet,
only fourteen of those complaints were connected to an
identifiable individual. That means that, over the last two
years, the Slidell police have been faced with fifty-six
complaints without knowing which individual the complaint
argues that those fifty-six incidents substantiate that
panhandling is increasing in Slidell and that the City is
powerless to enforce its current laws against aggressive
panhandling because the City does not know who is
panhandling. As a result, the City Council took action and
passed a civic ordinance requiring all panhandlers and
beggars to obtain a panhandling permit from the Slidell
police before begging. That way, Slidell suggests, the City
will know who is panhandling. (For simplicity's sake,
this Court will generally reference only
“panhandlers” and “panhandling” even
though Slidell's ordinance refers to both panhandling and
begging. See also Slidell City Code §
11-207.1(b) (“Beg, begging or
panhandling shall be synonymous and shall mean
asking for money or objects of value, with the intention that
the money or object be transferred at that time, and at that
first version of the ordinance required a prospective
panhandler to complete a written application at least
forty-eight hours before the first full day of panhandling.
Plaintiffs-three indigent individuals who panhandle on the
public streets and sidewalks of Slidell (R. Doc. No. 27,
¶¶ 25-26)-filed this suit after the ordinance's
passage. The complaint alleged that a forty-eight hour prior
restraint on a specific type of speech violated the First
Amendment (as incorporated by the Fourteenth Amendment).
Plaintiffs asked for a preliminary injunction to block the
ordinance from being enforced.
City then had second thoughts after plaintiffs' request
for emergency relief. It returned to the drawing board and
passed a revised ordinance. The revised panhandling
ordinance, which will generally be referred to as the
“panhandling ordinance, ” is the ordinance
presently at issue here. The new panhandling ordinance
deleted the forty-eight hour waiting period for a permit (at
least on weekdays during business hours-more on that later).
But even under the revised ordinance it remains
“unlawful for any person to beg or panhandle within the
city limits without first obtaining a permit from the chief
of police or his designee.” Slidell City Code §
11-207(a). And getting that permit is not necessarily simple:
the revised panhandling ordinance requires a two-part
application process for anyone intending to panhandle.
first stage, a potential panhandler needs to go to the police
department between 9:00 A.M. and 5:00 P.M. on a weekday.
Id. § 11-207(b)(1). (If a prospective
panhandler decides that they want to start begging on a
weekend, they have to wait until the following Monday at 9:00
A.M. to apply for a permit.) Once at the police station, the
prospective panhandler needs to fill out an application
listing his or her (1) address, (2) telephone numbers, (3)
email addresses, and (4) “any other information needed
to establish the applicant's identity.”
Id. § 11-207(b)(1). (The ordinance does not
explain what happens if, for example, a homeless individual
does not have a home or contact information). In addition, an
applicant must “also provide picture identification at
the time the application is submitted, or, if picture
identification is impractical . . . other documentation that
definitively establishes identity.” Id. §
Slidell police “shall” immediately grant the
prospective panhandler a temporary panhandling permit when
the application is completed. Id. §
11-207(b)(1). That permit grants permission to panhandle for
seventy-two hours. Id. § 11-207(b)(1).
the seventy-two hour period expires, the panhandler has to
return again to the police station. Id. §
11-207(b)(2). On the second visit, the chief of police
“shall” grant the panhandler a one-year
panhandling permit “unless”:
• The application includes a false or fraudulent
• The applicant has been convicted of violating begging
or panhandling ordinances within the prior twelve months;
• The applicant has two or more violations of the
Slidell criminal code within the prior five years;
• The applicant has been convicted of two or more
offenses involving an assault, communicating a threat,
illegal use of a weapon or other act of violence-whether a
misdemeanor or felony-within the prior five years; or
• The applicant has been convicted of one or more
homicides in the prior twenty years.
Id. § 11-207(b)(2)(i)-(v).
restrictions do not end there. Slidell's ordinance also
regulates how individuals can panhandle. In
particular, the ordinance requires that panhandlers
“must keep” the permit “displayed on his or
her chest” when “begging or panhandling alms for
personal gains.” Id. § 11-207(f). The
ordinance further specifies that the permit must be
“hanging from a lanyard” or “clipped
to” the panhandler's “garment.”
Id. § 11-207(f). The “name, type of
permit[, ] and date of expiration” must remain
“visible at all times.” Id. §
11-207(f). The panhandler must show the permit “to any
law enforcement officer or the chief administrative officer
or his designee immediately upon request.” Id.
§ 11-207(f). Should the panhandler be convicted of a
violation of the Slidell's “begging and panhandling
ordinances, ” the panhandler's permit is
invalidated. Id. § 11-207(d). Violations of the
panhandling ordinance are also punishable by up to six months
in prison and/or a fine of $1, 000. Id. § 1-12.
would-be-panhandler may appeal both denials and revocations
of their panhandling permit. The appeal is due within ten
days of the denial and/or revocation. Permit denials are
appealed to Slidell's chief administrative officer;
permit revocations are appealed to the chief of police.
Id. § 11-207(c), (e).
Slidell revised the panhandling ordinance, plaintiffs amended
their complaint to allege that the revised ordinance was
equally unconstitutional. Slidell agreed not to enforce the
ordinance pending this Court's final judgment. The
parties have now filed cross-motions for summary judgment.
judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any
affidavits, the court determines that there is no genuine
dispute of material fact. See Fed. R. Civ. P. 56.
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
the party seeking summary judgment carries its burden
pursuant to Rule 56, the nonmoving party must come forward
with specific facts showing that there is a genuine dispute
of material fact for trial. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
showing of a genuine issue is not satisfied by creating
“‘some metaphysical doubt as to the material
facts, ' by ‘conclusory allegations, ' by
‘unsubstantiated assertions, ' or by only a
‘scintilla' of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations omitted). Instead, a genuine issue of material
fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The party responding to the motion for
summary judgment may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue.
Id. The nonmoving party's evidence, however,
“is to be believed, and all justifiable inferences are
to be drawn in [the nonmoving party's] favor.”
Id. at 255; see also Hunt v. Cromartie, 526
U.S. 541, 552 (1999).
Court must first satisfy itself that it has jurisdiction
before turning to the merits. See Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 93-102 (1988).
Article III limits this Court's jurisdiction to actual
cases and controversies. A central component of that
requirement is that a federal court may consider only
“ripe” cases. See Nat'l Park Hospitality
Ass'n v. Dep't of the Interior, 538 U.S. 803,
ripeness doctrine protects both the courts and the political
branches by avoiding the twin dangers of (1)
“premature” adjudications that entangle the
courts in “abstract disagreements over . . .
policies” and (2) “judicial interference”
in policy decisions until a policy “has been formalized
and its effects felt in a concrete way by the challenging
parties.” Abbott Labs. v. Gardner, 387 U.S.
136, 148-49 (1967), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99, 105 (1977).
becomes ripe for determination when the “harm asserted
has matured sufficiently to warrant judicial
intervention.” Contender Farms, L.L.P. v. U.S.
Dep't of Agriculture, 779 F.3d 258, 267 (5th Cir.
2015) (internal quotation marks). Slidell is not presently
enforcing its panhandling ordinance. Therefore, though
neither party raises the issue, one could question whether
this case is ripe. After all, the panhandling ordinance is
not, in fact, currently preventing the plaintiffs from
panhandling in Slidell. Nonetheless, the Court concludes that
this case is ripe for adjudication.
after plaintiffs filed suit and moved for a
preliminary injunction did the City agree to not enforce the
panhandling ordinance. See R. Doc. No. 10 (noting
the City's agreement to avoid the need for the motion for
a preliminary injunction by voluntarily agreeing not to
enforce the ordinance). So the suit was ripe when it is was
filed. Cf. Susan B. Anthony List v. Driehaus, 134
S.Ct. 2334, 2342 (2014) (“[A]n actual arrest,
prosecution, or other enforcement action is not a
prerequisite to challenging [a] law.”); Virginia v.
Am. Booksellers Ass'n, Inc., 484 U.S. 383, 393
(1988) (“[T]he alleged danger of this statute is, in
large measure, one of self-censorship; a harm that can be
realized even without an actual prosecution.”). What
the Court is really facing here is a mootness
question-i.e., does the City's voluntary
cessation of allegedly illegal conduct moot the
case-masquerading as a ripeness question.
easy: “voluntary compliance” moots a case only
when “it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 190 (2000). Slidell has
agreed only to not enforce its panhandling ordinance pending
this Court's ruling on its constitutionality. Thus, the
allegedly wrongful behavior can be expected to recur and the
City's voluntary enforcement cessation during the
pendency of this case does not render the matter
even if we leave aside that Slidell only foreswore
enforcement after suit was filed and focus solely on the
ripeness inquiry, this matter still meets all the
prerequisites for a pre-enforcement challenge. The “key
considerations” in evaluating ripeness “are the
fitness of the issue for judicial decision and the
hardship to the parties of withholding court
consideration.” Roark & Hardee LP v. City of
Austin, 522 F.3d 533, 545 (5th Cir. 2008) (emphasis
added) (internal quotation marks omitted). Under that test, a
“case is generally ripe if any remaining questions are
purely legal ones; conversely, a case is not ripe if further
factual development is required.” Id.
case is fit for decision. The Court will neither
“benefit from any further factual development”
nor will it be in a “better position to adjudicate the
issues in the future than it is now.” Pearson v.
Holder, 624 F.3d 682, 684 (5th Cir. 2010) (internal
quotation marks omitted). The case presents a legal question:
is there a legally sufficient basis for Slidell to place a
burden on plaintiffs' First Amendment rights? That
question may be decided on the present record. All antecedent
factual issues- e.g., the prevalence of aggressive
panhandling and its secondary effects in Slidell- are already
hardship analysis is no more difficult. Plaintiffs presumably
depend on panhandling to support themselves. Requiring them
to wait for a post-enforcement challenge would force them
“to choose one of two undesirable options.”
Texas v. United States, 497 F.3d 491, 499 (5th Cir.
2007). Absent a pre-enforcement challenge, plaintiffs will
have to either (1) comply with a permitting ordinance that
they allege violates the First Amendment, or (2) violate the
ordinance and risk jail time and a fine, as well as having
their right to obtain a permit stripped away for at least a
year. See Slidell City Code § 1-12;
id. § 11-207(b)(ii), (d). That constitutes a
legally cognizable hardship. Cf. Oh. Forestry Ass'n,
Inc. v. Sierra Club, 523 ...