The Montana ACLU warned the Missoula City Council on Feb. 10 that suggestions proposed by Mayor John Engen to curb downtown loitering and panhandling could still leave the city on shaky legal ground.
"It goes beyond this council's police powers to ban benign acts," ACLU staff attorney Anna Conley told council during its most recent debate about changes to the city's anti-solicitation and pedestrian interference ordinances.
In December, council voted 7-3 to prohibit sitting, sleeping and lying on a downtown sidewalk between 6 a.m. and 11 p.m., and to prohibit soliciting money in many areas of the city's urban core. The decision sought to quell concern from business owners who have repeatedly called upon council to curb aggressive and unsavory behavior downtown.
Council's December vote was a relief to shopkeepers, but it disturbed those who felt lawmakers were in effect criminalizing homelessness. Weeks after council cast the voteone of two required to make the amendments lawa federal judge tilted the debate when he found similar prohibitions passed in Boise violated constitutional free speech protections.
The Boise lawsuit prompted Engen to address potential legal pitfalls in Missoula's ordinances. The mayor unveiled his recommended changes this week.
Engen suggested scrapping an existing after-dark solicitation ban and a citywide prohibition against loitering near footbridges and pedestrian tunnels. He also recommended shrinking a no-panhandling buffer area from 20 feet around downtown doorways, as the December ordinance stated, to 10 feet around public entrances to commercial buildings.
Engen said he believes his amendments will withstand judicial scrutiny. The ACLU isn't so sure. Conley argued that Engen's draft still has significant problems, including the prohibition against sitting on downtown sidewalks between 6 a.m. and 11 p.m. Tack that onto the city's existing ban on using signs to solicit money in some areas, and Conley said the ordinances still infringe on free speech.
"There is no safety or other justification for banning silently holding a sign in a non-aggressive and non-intrusive way," Conley said.
Councilman Jason Wiener agreed. Aiming to remedy what he sees as an overstep, he proposed striking the sit ban entirely. He also asked his council colleagues to eliminate language in Missoula's existing statutes that make it unlawful to use a sign to solicit for money.
Council sent the ordinances back to committee for further tweaking. They are slated for another debate on Feb. 26.