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Blitch v. City of Slidell

United States District Court, E.D. Louisiana

June 19, 2017


         SECTION I



         Slidell 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[1] for summary judgment, denies Slidell's, [2] and issues a permanent injunction against enforcement of the ordinance.


         Since 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 concerned.

         Slidell 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 place.”).)

         The 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.

         The 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.

         At the 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. § 11-207(b)(1).

         The 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).

         Once 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 statement;
• 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).

         The 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.

         A 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).

         After 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.


         Summary 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).

         Once 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).


         This 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, 807-08 (2003).

         The 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).

         A case 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.

         Only 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.

         That is 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 nonjusticiable.

         But 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.

         This 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 known.

         The 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 ...

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