August 2015 | Vol. 10, No. 2
by John Blair
Senior Assistant County Attorney
Albemarle County, Virginia
Frequently, police departments receive calls related to panhandling. In response to panhandling complaints, a number of Virginia localities have passed ordinances attempting to regulate and criminalize the behavior. Panhandling ordinances across the Commonwealth prohibit the practice on public roads and other public spaces. However, recent federal court decisions raise new questions about the constitutionality of such ordinances.
The United States Supreme Court’s 2014 McCullen v. Coakley decision provided a fresh perspective to determine if such ordinances are “narrowly tailored.” This doctrine has already been utilized in two recent decisions analyzing panhandling ordinances in Virginia.
McCullen and Intermediate Scrutiny
In 2014, the United States Supreme Court examined Massachusetts’ “buffer zone” law around abortion clinics. The Massachusetts legislature passed a law establishing a thirty five foot “buffer zone” outside the entrances to abortion clinics. Individuals were prohibited from entering or remaining in the buffer zone during an abortion clinic’s regular business hours (those entering, employed by, or responding to emergencies or public service issues at a clinic, and passersby, were exempt from the prohibition).
The Court applied a constitutional test called “intermediate scrutiny” to the Massachusetts law and invalidated the statute.
Intermediate scrutiny requires that a government restriction on speech satisfy three requirements: a) that the restriction is content neutral; b) that the restriction is narrowly tailored to serve a significant government interest; and c) the restriction provides ample alternative channels of communication.
The Court provided a fresh interpretation of the “narrowly tailored” requirement (item “b,” above) that is of heightened importance when examining the constitutionality of panhandling ordinances. The Court made three significant doctrinal points about the “narrowness” of an ordinance.
First, the Court examined the laws of other states as well as the federal “Freedom of Access to Clinic Entrances Act of 1994.” The Court also examined other Massachusetts laws that could be used to address public safety concerns at abortion entrance clinics such as “assault, breach of the peace, trespass, vandalism, and the like.” The Court noted, “The point is…that the Commonwealth has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.” The Court’s examination allows lower courts to peruse statutes and ordinances to determine if those laws can regulate the conduct in question in a narrower manner than utilizing an ordinance related to speech.
Second, the Court examined the regularity of the prohibited conduct and the geographic scope of the conduct. The Court found that in the entire state of Massachusetts, only one clinic at one time of the week (Boston’s Planned Parenthood Clinic on Saturday mornings) experienced “congestion” of its sidewalks outside abortion clinics. The Court found that a statewide statute enacted to address a concern found at one facility in one city that occurred once a week was not “narrowly tailored.” This permits lower federal courts to apply a similar geographic and temporal scope analysis to laws and ordinances challenged on First Amendment grounds.
Finally, the Court took a particular interest in the evidence offered to show that other statutes and ordinances were ineffective. The Court noted Massachusetts’ argument that other approaches besides the “buffer zone” were not effective in achieving the state’s public safety goals. However, the Court noted, “Although respondents claim that Massachusetts ‘tried other laws already on the books’ …., they identify not a single prosecution brought under those laws within at least the last 17 years.” This criterion allows lower federal courts to examine actual arrest counts when applying intermediate scrutiny in First Amendment cases challenging laws and ordinances.
These three aspects of the Court’s “narrowly tailored” analysis have played prominent roles in two recent lower court decisions examining panhandling ordinances enacted by two Virginia localities.
Clatterbuck v. Charlottesville
The first case, Clatterbuck v. City of Charlottesville, declared a portion of a Charlottesville city ordinance unconstitutional on First Amendment grounds. Charlottesville enacted an ordinance that prohibited individuals from requesting “an immediate donation of money or other thing of value.” The prohibition applied to an area on the City’s pedestrian Downtown Mall “within fifty (50) feet (in any direction) of 2nd Street West and 4th Street East”.
The United States District Court first examined whether the ordinance was “content-based.” The court found that the City’s distinction between solicitors requesting an “immediate donation” and other forms of solicitation (i.e., those in which an “immediate donation” was not requested) was not “content neutral.” In reaching this conclusion, the court examined whether the City’s “content neutral” justifications were consistent with the distinction between solicitations for “immediate donations” and other solicitations.
The City offered three separate reasons for the distinction. First, the City argued that soliciting donations from drivers on the Downtown Mall could distract drivers, because the driver could stop for the solicitor and then proceed without caution, thus endangering pedestrians. Second, the City argued that the mere presence of beggars within the fifty foot buffer zone posed a distraction that could cause a driver to strike a pedestrian. Finally, the City contended that, “in an effort to avoid panhandlers, pedestrians may take extreme diversionary steps that lead them into the intersecting street.”
The court rejected all three of the rationales proffered by the City. The court found that the evidence presented by the City was scarce or nonexistent as to all three of the City’s purported rationales. The court found that the City offered no evidence that pedestrians would take extreme diversionary steps to avoid soliciting. The court found that the City only offered one officer’s testimony that he “noticed some motorists, as they crossed over the Mall, were diverting eye contact from the street to individuals on the Mall,” though the court noted that the officer acknowledged that he did not know what the drivers were observing. Finally, the court noted that the City offered the testimony of a city employee that a driver nearly hit a child with his automobile after the driver “engaged with one of the people soliciting, and started their car up without looking.” The City also presented testimony from a police officer testified that a driver “exchanged” something with someone holding a sign, proceeded, and had to brake to avoid hitting a pedestrian. The court found that the officer and city employee could not prove that the individuals they witnessed on the Mall were asking for “immediate donations” nor could the officer prove what was “exchanged.” 
The court’s content-neutral analysis concluded, “There is nothing about a request for ‘an immediate donation of money or other thing of value’ that creates a greater danger than any other reason a motor vehicle may stop in the streets intersecting the Mall, or any other distraction in the fifty-foot buffer zone, such as the sandwich boards and vendor tables soliciting ‘the sale of goods or services’ in plain violation of the ordinance.”
The court also examined whether the City’s ordinance was “narrowly tailored.” The court found that the City offered no evidence or explanation of why the measurement of fifty feet was chosen for the buffer zones. The court, similar to the McCullen decision, also pointed out that the City had other traffic regulations it could enforce to achieve the same “traffic safety” rationales such as city ordinances requiring drivers to yield the right-of-way to pedestrians. The court stated, “Indeed, the existing laws I have discussed are obvious alternatives that directly address the issue of pedestrian safety, yet have little-to-no impact on free speech.” The court found that the City did not demonstrate that alternative measures that burden substantially less speech would fail to achieve the City’s interests, concluding, “The City essentially offers no good explanation at all for its fifty-foot buffer zones, and the record discloses none.”
Reynolds v. Middleton
The U.S. Fourth Circuit Court of Appeals relied heavily on the McCullen “narrowly tailored” doctrine when it reviewed Henrico County’s highway solicitation ordinance in Reynolds v. Middleton. Henrico County enacted an ordinance in 2012 that prohibited: a) the solicitation of contributions; b) the selling or attempted selling of merchandise; or c) the distribution of handbills, leaflets, literature, advertisements, or similar materials to drivers or passengers of motor vehicles on highways located within the county. The ordinance defines “highways” as “the entire width of a road or street that is improved, designed, or ordinarily used for vehicular travel and the shoulder, the median, and the area between the travel lane and the back of the curb.”
Applying the McCullen ruling, the court found, “intermediate scrutiny does indeed require the government to present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary; argument unsupported by the evidence will not suffice to carry the government’s burden.”
The court noted that the ordinance applied to all roads in Henrico County “regardless of traffic volume.” The court opined, “Given the absence of evidence of a county-wide problem, the county-wide sweep of the Amended Ordinance burdens more speech than necessary, just as the statute in McCullen - a statewide statute aimed at a problem in one location - burdened more speech than necessary.”
The court also examined the County’s ability to use alternative enforcement mechanisms to deter panhandling. The court found, “In this case, the County simply presented no evidence showing that it ever tried to use the available alternatives to address its safety concerns…Without such evidence, the County cannot carry its burden of demonstrating that the Amended Ordinance is narrowly tailored.”
The Fourth Circuit remanded the case back to the District Court to provide the County an opportunity to present evidence that its ordinance is “narrowly tailored” pursuant to the McCullen decision.
Conclusion and Suggestions
The McCullen, Clatterbuck, and Middleton decisions provide a framework to examine the constitutionality of a locality’s panhandling ordinances. First, a panhandling ordinance may not discriminate conduct on the basis of the type of speech. If an ordinance prohibits panhandling, it must prohibit all types of solicitations including charitable solicitations. Second, the documentation of traffic incidents involving solicitors on roads is important to create an evidentiary record in the event that a jurisdiction’s ordinance is the subject of a legal challenge. All three of the decisions discussed in this article focused on the paucity of evidence offered by the government to support the statute or ordinance in question. It is important for law enforcement officers to create a documentary record of each instance of traffic incidents or close calls caused by panhandlers. It is also advisable to have officers consider whether other traffic or public safety ordinances can be utilized in charging decisions rather than a panhandling ordinance. If so, the officer should rely on those ordinances and document their utilization in lieu of bringing a panhandling charge. Finally, the decisions all point to the conclusion that an ordinance should try to pinpoint the intersections and roads that see the most issues related to panhandling. An ordinance that prohibits panhandling on all city or county roads may be too broad to pass the “narrowly tailored” requirement of intermediate scrutiny.
 McCullen v. Coakley, 134 S.Ct. 2518 (2014).
 McCullen at 2538.
 Id. at 2539.
 Id. at 2539.
 Id. at 2539.
 Id. at 2539.
 Clatterbuck v. City of Charlottesville, No.3:11-CV-00043 (2015).
 Clatterbuck at 1.
 Id. at 4.
 Id. at 4.
 Id. at 6.
 Id. at 6.
 Id. at 7.
 Id. at 7.
 Id at 8.
 Id. at 8.
 Id. at 9.
 Id. at 10.
 Id. at 11.
 Id. at 11.
 Id. at 13.
 Reynolds v. Middleton, 779 F.3d 222 (2015).
 Reynolds at 225.
 Id. at 225.
 Id. at 229.
 Id. at 231.
 Id. at 231.
 Reynolds at 232.