Panhandlers and Their Lawyers

Just between us, what do you really think about panhandlers in the neighborhood?

How do you really feel about people sitting in front of a post office with a cardboard sign that reads, "Illegally Evicted." Or people standing outside the doors of Ralphs with a dog and a sign that reads, "Dog needs surgery. Please help." How do you feel about people who stand on the median strip in the middle of Topanga Canyon Blvd. asking for money from drivers stopped at a red light? How do you feel when people come up to you in the parking lot of WalMart or Sprouts or Pavilions or Macy's and ask if you have any change?

It almost doesn't matter how you feel about it because the U.S. Supreme Court ruled some time ago that panhandling is speech, and no state law or local ordinance may ban it. If local authorities are willing to go to court and fight for years, they can try to persuade federal judges that they have a "compelling" reason to restrict panhandling, one that outweighs the "fundamental" right of free speech. The U.S. Supreme Court uses a compelling-versus-fundamental balancing test to decide whether certain state laws are constitutional. This is based on a legal theory called the Incorporation Doctrine, which was first floated in 1925. Prior to that, the First Amendment didn't apply to the states at all, and the federal courts had no power to pass judgment on the constitutionality of state laws on panhandling.

Given the legal restrictions on their actions, states have taken different approaches to the problem.

Utah passed a law that prohibited standing near a road to ask for money. In 2010, three panhandlers sued the state over the law, and Utah officials argued that the issue was traffic and public safety, not speech. In March, U.S. District Judge Ted Stewart sided with the panhandlers, ruling that they had a First Amendment right to beg for money from motorists.

In San Francisco, which just lost its top spot in the Condé Nast Traveler survey because so many tourists complained about aggressive panhandlers, officials are trying a new tack of offering panhandlers a foster pet and a weekly stipend to take care of it. The puppies-for-panhandlers program, funded by a $10,000 grant from Vanessa Getty, requires the panhandlers to stop panhandling.

We'll see how that works out.

In Oklahoma City, panhandlers are required to get a permit and an insurance policy. The cost of the permit is $200 per day. Earlier this month, OKC police arrested a man for panhandling near Interstate 40 without a permit. The man offered to buy a permit for the day and told police he thought $200 was a pretty good deal, because last year he made $60,000 from panhandling. "I'm lazy," he said. "Why would I go get a job?"

You have to wonder if the people who ask strangers for cash are completely on the level. I personally witnessed the nightly pick-up of a panhandling team who were regulars in front of an Albertson's supermarket. A black SUV with heavily tinted windows pulled up at 11:00 p.m., just as the store was closing. The panhandlers collected their blankets, buckets and signs, piled into the vehicle, and off they went.

Has the Supreme Court created a safe haven for rackets?

Laws against vagrancy and loitering once were common, but in 1972, in the case of Papachristou v. City of Jacksonville, the Supreme Court struck down this Florida ordinance:

"Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses [90 days imprisonment, a $500 fine, or both]."

The law encouraged "erratic arrests," the justices said, and placed "almost unfettered discretion in the hands of the police."

That was pretty much the end of vagrancy laws in America.

In the early 1980s, a rise in visible homelessness was blamed on the Reagan administration's cuts to the budget of the Department of Housing and Urban Development. Nobody thought much about the Supreme Court's decision to stop local police from arresting people for vagrancy.

Of course, nobody wants anybody arrested for being poor, or for being quirky. But if police can't use their discretion to arrest people who are up to no good, there's nothing to stop criminals and con artists from making our public spaces their work sites. The poor and quirky will be their first victims.

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Former candidate for Congress Susan Shelley is the author of "How the First Amendment Came to Protect Topless Dancing," a history of Supreme Court decisions that took powers from state and local governments and gave them to the federal courts. Follow her on Twitter @Susan_Shelley and on Facebook.