Kentucky Supreme Court to determine whether panhandling is a cri - WDRB 41 Louisville News

Kentucky Supreme Court to determine whether panhandling is a crime

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LOUISVILLE, Ky. (WDRB) – “Brother, can you spare a dime?”

The 1930 song and its lyrics are the opening paragraph of a legal argument that will go before the state Supreme Court this month on whether Kentucky cities should be able to charge a person for panhandling.

The high court has agreed to hear the case of Dennis Champion, who was jailed in 2015 for violating a Fayette County ordinance prohibiting “begging and soliciting upon public streets.”

Champion, according to court documents, was caught standing at an intersection holding a sign that read “begging for alms” in December 2014.

The case, to be heard in Frankfort on Oct. 14, will, in part, bring up whether people have a First Amendment right to panhandle.

“The personal request for assistance from one’s fellow man ‘should be accorded the highest level of First Amendment protection,’” defense attorney Linda Horsman argued in a motion. “The beggar’s message, and indeed their very presence, contributes to the interchange of ideas regarding homelessness.”

Beggars, according to the motion, “serve a public good, particularly in a country as bountiful as ours” and could be considered “political speech,” highlighting the problem of poverty.

Fayette County Attorney Larry Roberts, however, argued that it was public safety, not speech. that was at the heart of the issue.

“It is not the speech that is being restricted,” he wrote. “It is stepping into the street to get money from the motorist and then walking in the street to the next car in line to get money from the next motorist, and so on. In addition to being dangerous for the pedestrian, it disrupts the safe and efficient flow”

In Fayette County, as in Jefferson and other counties in Kentucky, it is illegal to panhandle on public streets, with a maximum sentence of 30 days in jail and a $100 fine.

In Jefferson County, people can be fined up to $250 and jailed for up to 90 days for panhandling.

Last year, Champion pleaded guilty -- while reserving his right to appeal -- and sentenced to three days in jail, a conviction that was upheld in Fayette Circuit Court, which ruled against the First Amendment argument.

In the appeal to the Supreme Court, Horsman argues, in part, that while cities have the right to make ordinances that can impose civil fines, it is up to legislators to decide if something is unlawful.

She points to a Jefferson County case where a woman was sentenced to 90 days in jail when her dog attacked another dog in 2011.

A Jefferson District Court judge found the woman guilty of a misdemeanor for violating a city ordinance by failing to “restrain a dangerous dog” -- even though the dog had been in the care of the woman's mother at the time.

In that case, three members of the Kentucky Supreme Court wrote in an order that the Kentucky General Assembly, not the Metro Council, has “exclusive authority to enact and define crimes and criminal penalties." But a majority of the court did not agree.

However, while not legally binding, the ruling should be a “clarion call to the legislature to remove any doubt as to where the authority to enact a criminal statute and fix its penalties lies,” Justice Mary Noble wrote.

To change the laws, another case with an ordinance calling for jail time would have to be appealed and a majority of the seven-member Supreme Court would have to share the same opinion.

“If the citizens of this great Commonwealth chose, through their duly-elected representatives, to criminalize poverty in this manner, a statute would have been enacted,” Horsman wrote. “Most of us can spare a dime for our fellow man. The citizens of Lexington deserve the opportunity to be gracious and humane, just like the citizens of every other locality.”

At the time, the three justices were also concerned about the “astounding incongruity in criminal ordinance and punishments” among various Kentucky counties.

In Newport, Ky., for example, spitting on the sidewalk is a misdemeanor crime, according to its city ordinance.

In Fort Thomas, selling dyed chicks or rabbits is a misdemeanor.

Roberts, however, argues “while there is a risk that unusual ordinances may be on the books from city to city … the legislature no doubt understood” that different cities may have the need for different laws.

And “state law currently gives cities the authority to make the violation of an ordinance a misdemeanor criminal charge, punishable by fine or jail time,” he added.

As for the First Amendment argument, Horsman argues that the U.S. Supreme Court “has made it clear that public streets are the most public of public forums.”

“Clearly, the roadways of Lexington are a public forum and the proper review of any restrictions of speech uttered upon them should be strict scrutiny," she wrote.

As part of the city’s argument, Roberts points out that intersections and public streets are not a typical public forum – and are a danger if they become one.

“The intersection of two streets in downtown Lexington is not normally a place where pedestrians and motorists mingle, chat, exchange ideas, engage in commerce, or discuss religion and politics,” Roberts wrote.

Champion, however, was not charged for interfering with traffic or endangering himself, but with “solicitation/begging for alms,” Horsman countered.

“There was no indication that he was impeding traffic in any way and the focus of the charge was his speech,” she said.

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