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July 21, 2013 5:00 am • By CHRISTOPHER LEONE Sun Staff Reporter
A simple question like, “Can you spare a dollar, sir?” can land you in jail if spoken in a public area to one of Flagstaff’s plainclothes police officers. That is what happened to Marlene Baldwin, an elderly Hopi woman who asked an undercover officer for a dollar after first asking him for a hamburger.
Baldwin is now the lead plaintiff in a complaint filed by the American Civil Liberties Union of Arizona in U.S. District Court against the Flagstaff police, the city and the state of Arizona.
Since 2008, Flagstaff police have been arresting nonaggressive panhandlers like Baldwin in a stepped-up effort to reduce the number of petty crimes, like consuming alcohol in public, trespassing and littering, which the department believes can lead to more serious offenses if left unchecked, according to its 2012 annual report.
The police initiative, called Operation 40 after I-40 and the fortified 40-ounce beers popular among street alcoholics, has tried to appease the city’s business interests after complaints about transients escalated.
The initiative tries to catch alcoholic street transients committing petty offenses earlier in the day, before they get too drunk and make themselves prone to committing even more serious crimes, according to the report.
Police decline to comment for this story because of the ongoing lawsuit.
But the annual report goes on to say that OP-40 in partnership with several other city departments and efforts has helped account for a 6 percent reduction in overall crime during 2012.
FREE SPEECH OR MISDEMEANOR
Peaceful begging is not a crime, said Dan Pochoda, ACLU’s Arizona legal director. “It has long been held by many courts that the act of asking for money is ... protected by the First Amendment.”
the Flagstaff police are enforcing a state law, not a city ordinance. Arizona State Statute Title 13-2905 says that loitering to beg in a public place is a class 1 or class 3 misdemeanor, depending on whether the person is near a school or not.
The Flagstaff police have been enforcing this law since 2008 and with no small impact, said Pochoda.
“In an 11-month period that we got the statistics ... there were about 135 arrests,” Pochoda said.
The police department’s policy is widely known, and so the right of the city’s panhandlers to ask for money is chilled, Pochoda said, even if they were going hungry, because they’re afraid of getting arrested.
According to the statute, someone asking for money has committed a misdemeanor, while the same person in the same manner asking an officer to vote for a candidate has not.
“Words and expressions must be permitted ... particularly in pubic areas,” Pochoda said.
SIMILAR ORDINANCES STRUCK DOWN
In 2011, a Phoenix’s ordinance that was not as harsh as the state’s statute because it only prohibited begging after a certain time was struck down, Pochoda said.
Even in this case, the State of Arizona v. Boehler, the court found the Phoenix ordinance unconstitutional on its face because it limited the panhandler’s free speech rights, Pochoda added.
The other aspects of OP-40, like littering or drinking in public, are different, Pochoda said.
“Our attack is not on Operation 40,” Pochoda said. “If someone is busted for conduct, and not speech, conduct that is criminal — that has nothing to do with the First Amendment.”
Pochoda said that he plans to ask for a preliminary injunction before Aug. 30 to stop the Flagstaff Police from arresting peaceful beggars.
“People are being harmed on a daily basis [and] courts have regularly stated that loss of First Amendment rights even for one day is an irreparable harm,” Pochoda said.
