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In wake of court ruling, St. Louis-area cities to revisit panhandling laws

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Homeless man wins $150K as judge tosses out St. Louis County anti-soliciting ordinances

Robert Fernandez panhandles at the intersection of Lindbergh Boulevard and the Interstate 55 northbound off-ramp in St. Louis County on Thursday, May 13, 2021. Fernandez was awarded $150,000 by a federal judge Tuesday after being arrested several times for violating St. Louis County soliciting ordinances. U.S. District Judge Stephen N. Limbaugh Jr. prohibited the enforcement of an anti-vagrancy ordinance, one barring people from standing in a roadway for the purposes of soliciting, and another covering solicitor licensing. Photo by Robert Cohen, rcohen@post-dispatch.com

ST. LOUIS COUNTY — Soon after Robert Fernandez was awarded $150,000 in a lawsuit over his repeated run-ins with police enforcing St. Louis County’s anti-panhandling laws, he was back out at his favorite intersection, holding a cardboard sign reading, “Homeless! Anything Helps. God Bless.”

Fernandez is still homeless and hasn’t seen a penny of the money. The county could still appeal. But the court decision last week invalidating county anti-panhandling laws is already reverberating in other parts of the region.

Bevis Schock, one of Fernandez’s lawyers, said he got a call from a “prominent” lawyer who represents cities in the area, asking for a copy of the ruling. The lawyer, who Schock declined to identify, said his clients will now have to go through their own books and remove similar ordinances.

Schock declined to make Fernandez, a Mehlville High School graduate, available for an interview.

“Robert Fernandez would tell you, ‘My life is fine. Leave me alone,’” Schock said.

He said there has been no discussion with his client about what he will do if he receives the money.

U.S. District Judge Stephen N. Limbaugh Jr. on Tuesday struck down St. Louis County’s anti-vagrancy ordinance and prohibited enforcement of another barring people from standing in a roadway for the purposes of soliciting. He also overturned a third ordinance covering solicitor licensing. His ruling echoed court findings elsewhere in the country, according to lawyers and legal experts.

Limbaugh said the solicitor ordinances were unconstitutional restrictions on speech, as they treated panhandlers differently than politicians or people working for charities. St. Louis County required a solicitor’s license only for “those asking for ‘property or financial assistance’ or selling or taking orders for certain items,” he wrote.

Limbaugh in his ruling said the county didn’t support its claims that the ordinances promoted the safety of motorists and pedestrians, again comparing panhandling to “other forms of roadside expression, such as protesting, soliciting signature petitions, campaigning or evangelizing” that could distract drivers.

Limbaugh called the the anti-vagrancy ordinances “’plainly unconstitutional’ violations of due process because they do not give fair notice of what is prohibited and because they lend themselves to arbitrary enforcement.”

Arrested four times

Police have cited Fernandez 31 times and arrested him four times, holding him in custody for 28 hours and 26 minutes, Limbaugh wrote.

Hugh Eastwood, Fernandez’s other lawyer, said Fernandez is a “rule follower” and took the requirement to obtain a solicitor’s license seriously. But by doing so, Eastwood said, “he showed how ridiculous it was.”

The license expires after six months and only allows three days of solicitation during that time at busy intersections.

Fernandez can often be found asking for money at the intersection of Lindbergh Boulevard and Interstate 55. In an affidavit, Fernandez said there is too much competition among panhandlers in downtown St. Louis, and drivers coming from Jefferson County are more generous. He does not get food stamps or welfare, and only begs to support himself and his “female companion,” who is disabled.

Tony Rothert, legal director for the ACLU of Missouri, said in an email that Limbaugh’s decision was “not surprising” in light of a 2019 decision by a federal appeals court in St. Louis that invalidated an anti-panhandling law in Arkansas.

In that case, the 8th U.S. Circuit Court of Appeals upheld a lower-court decision that determined the Arkansas anti-loitering law was a restriction on speech, saying the law was “plainly unconstitutional.”

Eastwood said the appeals court decision is so “tough, we don’t know a lot of fact patterns that will pass muster” among panhandling ordinances. He said it will be “interesting to see” how cities in the St. Louis region deal with homelessness without the vagrancy and soliciting ordinances.

Rothert said the ACLU has recently targeted similar ordinances in Springfield, Belton, Joplin, Miner and Grandview. All have been “resolved,” he wrote, and the group has other cities “lined up.”

Among the ACLU’s next targets is a St. Louis ordinance that prohibits “aggressive panhandling,” Rothert said.

A mayoral spokesman and the city counselor did not immediately respond to questions about what the Fernandez decision meant for St. Louis ordinances.

Clayton City Manager David Gipson said in an email that the city has halted enforcement of an ordinance regulating soliciting in the road “as we actively review our regulations.”

Gipson said the ordinance has only been enforced 11 times in the last three years, with no violations in the last 14 months. All open municipal cases related to the charge have been dismissed, he said.

St. Louis County had been considering changes to its ordinances while the Fernandez lawsuit was pending, but that effort stalled during the pandemic, said Councilman Tim Fitch, R-3rd District.

Fitch said the County Council needs to “start from scratch” and construct an ordinance to “directly address anyone standing on the roadway … for any purpose,” including charitable campaigns like “Old Newsboys Day” and firefighters’ “Fill the Boot.”

“It wasn’t a surprise that the judge ruled in that manner at all and I think it’s easily addressable,” Fitch said.

Safety vs. speech?

Gregory P. Magarian, who teaches constitutional law at the Washington University law school, said many vagrancy ordinances stopped being enforced years ago, “hopefully because they realized you can’t enforce vague laws and they’ve come up with new laws better focused.”

He said many used “flowery language” that was not directed at particular conduct, but at people “walking around looking poor.”

Magarian said solicitation ordinances are “going the same way,” as the U.S. Supreme Court has repeatedly ruled against “content-based restrictions on speech.”

If a city tries to regulate someone saying, “’I’m poor, help me,’ that is a classic content-based restriction on speech,” Magarian said.

A way to avoid that constitutional scrutiny is to ban anyone from standing in traffic. But Magarian said it is not problem-free. Courts could find that troublesome if it’s enforced against a certain group or in a way that restricts certain speech.

Magarian said it can also be tough for cities that claim safety or other reasons for anti-panhandling ordinances to back up those claims.

“If the government can’t show that the policy problem is real, then a court is probably much more likely to say, ‘Yeah, this is targeting speech,’” he said.

Robert Patrick • 314-340-8131

@rxpatrick on Twitter

RPatrick@post-dispatch.com

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A judges order striking down anti-panhandling ordinances in St. Louis County and awarding a homeless man and his lawyers a total of $288,515.

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