Case 1:11-cv-00972-RJJ Doc #6 Filed 09/15/11 Page 1 of 22 Page … · JAMES SPEET and ERNEST SIMS, Plaintiffs, vs. BILL SCHUETTE, Attorney General for the State of Michigan, in his

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

JAMES SPEET and ERNEST SIMS, Plaintiffs, vs. BILL SCHUETTE, Attorney General for the State of Michigan, in his official capacity; CITY OF GRAND RAPIDS; KEVIN BELK, Chief of Police of the Grand Rapids Police Department, in his official capacity; and OFFICER GREGORY BAUER, in his individual capacity,

Hon. Robert J. Jonker Case No. 1:11-cv-972

Defendants. / Miriam J. Aukerman (P63165) American Civil Liberties Union Fund of Michigan West Michigan Regional Office 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 (616) 301-0930 [email protected]

Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 [email protected] [email protected] Attorneys for Plaintiffs

/

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR A

PRELIMINARY INJUNCTION

Case 1:11-cv-00972-RJJ Doc #6 Filed 09/15/11 Page 1 of 22 Page ID#63

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TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................2

ARGUMENT ...................................................................................................................................3

Standard for Summary Judgment for Facial Constitutional Challenges .......................................3

I. MICHIGAN’S BLANKET BAN ON BEGGING IS FACIALLY UNCONSTITUTIONAL AS A VIOLATION OF THE FIRST AMENDMENT. .............4

A. Begging Is Protected Speech Under the First Amendment. ............................................. 4

B. Michigan’s Anti-Begging Statute Is a Content-Based Restriction on Speech. ................ 5

C. Michigan Anti-Begging Statute Bans Speech in Traditional Public Fora. ...................... 7

D. The Statute Is Not Narrowly Tailored To Achieve a Compelling State Interest. ............ 8

II. MICHIGAN’S BLANKET BAN ON BEGGING IS FACIALLY UNCONSTITUTIONAL AS A VIOLATION OF THE EQUAL PROTECTION CLAUSE. ...........................................................................................................................11

III. THE COURT SHOULD ISSUE A PERMANENT INJUNCTION AGAINST ENFORCEMENT OF MICHIGAN’S BLANKET BAN ON BEGGING. .......................12

IV. IN THE ALTERNATIVE, THE COURT SHOULD GRANT A PRELIMINARY INJUNCTION. ...................................................................................................................15

RELIEF REQUESTED ..................................................................................................................17

EXHIBITS A. Thompson v. City of Chicago, 2002 WL 31115578 (N.D. Ill. Sept. 24, 2002) (unreported)


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TABLE OF AUTHORITIES

Cases

ACLU of Kentucky v. McCreary County, 354 F.3d 438, 445 (6th Cir. 2003) .............................. 15 Benefit v. City of Cambridge, 679 N.E.2d 184 (Mass. 1997) ................................................ passim Blair v. Shanahan, 775 F. Supp. 1315 (N.D. Cal. 1991) .................................................. 1, 5, 9, 10 Boos v. Barry, 485 U.S. 312 (1988) ................................................................................................ 8 C.C.B. v. State of Florida, 458 So. 2d 47 (Fla. App. Ct. 1984) .................................................. 1, 9 Carey v. Brown, 447 U.S. 455 (1980)........................................................................................... 11 Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983) .......................................................................... 13 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 3 Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535 (6th Cir. 2007) ........ 16 City of Houston v Hill, 482 U.S. 451 (1987) .................................................................................. 3 City of Los Angeles v Taxpayers for Vincent, 466 U.S. 789 (1984) ............................................... 3 Coates v. City of Cincinnati, 402 U.S. 611 (1971) ......................................................................... 9 Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .............................................. 15, 17 eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006)............................................................... 12 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) .................................................... 9 G & V Lounge v. Michigan Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) ................... 15 Ledford v. State, 652 So.2d 1254 (Fla. Dist. Ct. App. 1995) .......................................................... 1 Logsdon v. Hains, 492 F.3d 334 (6th Cir. 2007) ............................................................................ 8 Loper v. N.Y. City Police Dep’t, 999 F.2d 699 (2d Cir. 1993) ......................................... 1, 5, 6, 12 Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010) ............................................................. 7 NAACP v Button, 371 U.S. 415 (1963). .......................................................................................... 3 NAACP, Western Region v. City of Richmond, 743 F.2d 1346 (9th Cir. 1984) ............................... 7 Newsom v. Norris, 888 F.2d 371, (6th Cir. 1989) .......................................................................... 13 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) ...................................... 8 R.A.V. v. St. Paul, 505 U.S. 377 (1992) .......................................................................................... 5 Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) ............. 11 Saieg v. City of Dearborn, 641 F.3d 727 (6th Cir. 2011) .............................................................. 13 Six Clinics Holding Corp. v. Cafcomp Systems, Inc., 119 F.3d 393 (6th Cir. 1997) .................... 15 Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055 (S.D.N.Y. 1995) .............. 9, 16 Terminiello v. City of Chicago, 337 U.S. 1 (1949) ......................................................................... 9 Texas v. Johnson, 491 U.S. 397 (1989) .......................................................................................... 8 Thompson v. City of Chicago, 2002 WL 31115578 (N.D. Ill. Sept. 24, 2002) (unreported) ......... 1 Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ................................................... 5 Tyson Foods v. McReynolds, 865 F.2d 99 (6th Cir. 1989) ........................................................... 16 United States v. Grace, 461 U.S. 171 (1983) .................................................................................. 7 United States v. Playboy Entertainment Group, 529 U.S. 803 (2000) ........................................... 4 United States v. Suarez, 263 F.3d 468 (6th Cir. 2001) ................................................................... 3


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Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ...................................................................... 16 Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) ...................... 4

Statutes

M.C.L. 750.167(1)(h)............................................................................................................. passim M.C.L. 750.168(1) .......................................................................................................................... 2

Other Authorities

Hershkoff & Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 Harv.L.Rev. 896 (1991) .............................................................................................................. 5

John Agar, “Is panhandling a right? ACLU suit against Grand Rapids asks that state law be struck down,” The Grand Rapids Press (Sept. 14, 2011) .......................................................... 13

L. Tribe, American Constitutional Law 684 (1978) ....................................................................... 7

Rules

Fed. R. Civ. P. 56 ............................................................................................................................ 3 Fed. R. Civ. P. 65 .......................................................................................................................... 12


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INTRODUCTION Plaintiffs are individuals who seek employment or charitable donations from the public

and who, as a result, have been arrested, prosecuted, and jailed under Michigan’s anti-begging

statute, M.C.L. § 750.167(1)(h). Requesting employment or financial assistance is speech that is

protected by the First and Fourteenth Amendments of the United States Constitution. Because

Michigan’s anti-begging statute bans all begging in all public places, it is unconstitutional.

Plaintiffs now seek partial summary judgment on the First and Third Counts of their

Complaint, which allege that M.C.L. § 750.167(1)(h) is unconstitutional on its face under both

the First Amendment and the Equal Protection Clause of the United States Constitution.

Summary judgment is appropriate because there are no facts in dispute with respect to those

claims, and because it is absolutely clear that blanket bans on begging in public places are

unconstitutional. See, e.g., Loper v. N.Y. City Police Dep’t, 999 F.2d 699 (2d Cir. 1993) (striking

down New York anti-begging statute as facially unconstitutional); Blair v. Shanahan, 775 F.

Supp. 1315 (N.D. Cal. 1991) (holding California anti-begging statute violated the First

Amendment right to free speech and the Fourteenth Amendment right to equal protection),

vacated as moot, 775 F. Supp. 1361 (N.D. Cal. 1996); Ledford v. State, 652 So.2d 1254 (Fla.

Dist. Ct. App. 1995) (striking ordinance barring begging as unconstitutional interference with

free speech); Benefit v. City of Cambridge, 679 N.E.2d 184 (Mass. 1997) (striking down

Massachusetts anti-begging statute as violation of First Amendment); C.C.B. v. State of Florida,

458 So. 2d 47, 50 (Fla. App. Ct. 1984) (“a total prohibition of begging or soliciting alms for

oneself is an unconstitutional abridgment of the right to free speech”); Thompson v. City of

Chicago, 2002 WL 31115578 (N.D. Ill. Sept. 24, 2002) (unreported) (allowing class action

faulting city for making arrests under city anti-begging ordinance to proceed, as numerous courts


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had held similar statutes unconstitutional, and therefore the invalidity of the city’s ordinance

should have been apparent to arresting officers) (Exh. A).

Plaintiffs ask that the Court declare M.C.L. § 750.167(1)(h) unconstitutional on its face

and enjoin its enforcement.

FACTUAL BACKGROUND M.C.L. § 750.167(1)(h) provides: (1) A person is a disorderly person if the person is any of the following:

…. (h) A person found begging in a public place.

A person convicted of being a disorderly person is “guilty of a misdemeanor punishable by

imprisonment for not more than 90 days or a fine of not more than $500.00 or both.” M.C.L. §

750.168(1).

As set out in detail in the Complaint, hundreds of individuals who have engaged in

peaceful begging in the City of Grand Rapids have been arrested, prosecuted, and jailed over the

last three and a half years. See Exhibit C to Complaint (Analysis of Results of Freedom of

Information Act Request). Plaintiffs James Speet and Ernest Sims are two such individuals.

They wish to exercise their First Amendment right to ask for employment or financial assistance

by holding signs or verbally requesting help from passers-by without fear of arrest, prosecution,

and punishment. Having been arrested, prosecuted, and jailed in the past for begging, the

Plaintiffs now seek a permanent injunction prohibiting the enforcement of M.C.L. §

750.167(1)(h) in the future.


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ARGUMENT

Standard for Summary Judgment for Facial Constitutional Challenges

Summary judgment is proper if “there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986); Fed. R. Civ. P. 56. The constitutionality of a statute is a question of law. United

States v. Suarez, 263 F.3d 468, 476 (6th Cir. 2001).

In addressing a facial overbreadth challenge, "a court's first task is to determine whether

the enactment reaches a substantial amount of constitutionally protected conduct." City of

Houston v Hill, 482 U.S. 451, 458 (1987) (citations omitted). "Because First Amendment

freedoms need breathing space to survive, government may regulate in the area only with narrow

specificity." NAACP v Button, 371 U.S. 415, 433 (1963). A statute is overbroad if there is "a

realistic danger that the statute itself will significantly compromise recognized First Amendment

protections of parties not before the Court." City of Los Angeles v Taxpayers for Vincent, 466

U.S. 789, 801 (1984). Under the overbreadth doctrine, criminal statutes such as M.C.L. §

750.167(1)(h) “must be scrutinized with particular care.” City of Houston, 482 U.S. at 459.

“[T]hose that make unlawful a substantial amount of constitutionally protected conduct may be

held facially invalid,” even though some conduct prohibited under the statute could legitimately

be criminalized. Id.

Here, summary judgment is proper as to Counts One and Three of the Complaint, and a

permanent injunction against enforcing M.C.L. § 750.167(1)(h) should issue. There are no facts

in dispute regarding Plaintiffs’ facial challenge to the constitutionality of M.C.L. § 750.167(1)(h)

as violating the First and Fourteenth Amendments of the United States Constitution. Moreover,


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as is explained in detail below, Michigan’s anti-begging statute prohibits a substantial amount of

protected speech because it bans all begging in public places.

I. MICHIGAN’S BLANKET BAN ON BEGGING IS FACIALLY

UNCONSTITUTIONAL AS A VIOLATION OF THE FIRST AMENDM ENT.

“When the Government restricts speech, the Government bears the burden of proving the

constitutionality of its actions.” United States v. Playboy Entertainment Group, 529 U.S. 803,

816 (2000). Here, the Defendants cannot meet that heavy burden, as Michigan’s anti-begging

statute is clearly unconstitutional under four principles of well-established First Amendment

jurisprudence. First, begging is protected speech under the First Amendment. Second, the

statute is a content-based regulation of speech. Third, the statute bars speech in all traditional

public fora. And finally, as a content-based regulation of speech in public fora, the statute can

only survive if it is narrowly tailored to meet a compelling government an interest. On its face,

the statute cannot survive this standard of review, as the law prohibits a substantial amount of

constitutionally protected conduct.

A. Begging Is Protected Speech Under the First Amendment.

It is well established that begging is a form of speech protected by the First Amendment

of the United States Constitution. Some courts have treated begging as a form of solicitation for

charity, while others have characterized it as political speech. Both, of course, are protected.

In Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980), the

United States Supreme Court recognized that “charitable appeals for funds, on the street or door

to door, involve a variety of speech interests—communication of information, the dissemination

and propagation of views and ideas, and the advocacy of causes—that are within the protection

of the First Amendment.” Id. at 632. Lower courts, applying Schaumburg, have concluded that


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there is no meaningful distinction so far as the First Amendment is concerned between charitable

solicitation by organized charities as opposed to personal solicitations for financial assistance.

For example, the Second Circuit, in striking down New York’s anti-begging statute, noted that:

The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not a significant one for First Amendment purposes.

Loper, 999 F.2d at 704; see also Blair, 775 F. Supp. at 1322 (“No distinction of constitutional

dimension exists between soliciting funds for oneself and for charities.”); Benefit, 679 N.E.2d at

188 (“Indeed, it would be illogical to restrict the right of the individual beggar to seek assistance

for himself while protecting the right of a charitable organization to solicit funds on his behalf.”).

Thus, begging is a protected form of charitable solicitation.

Courts have also analyzed begging as a form of political speech, explaining that:

Begging gives the speaker an opportunity to spread his view and ideas on, among other things, the way our society treats its poor and disenfranchised. And in some cases, a beggar’s request can change the way the listener sees his or her relationship with and obligations to the poor.

Blair, 775 F. Supp. at 1322-23. See also Benefit, 679 N.E.2d at 188 (“Many times a beggar’s

solicitations will be accompanied… by communications that convey social or political

messages.”); Hershkoff & Cohen, Begging to Differ: The First Amendment and the Right to Beg,

104 Harv. L. Rev. 896, 898 (1991) (“Begging is speech that adds to both social and individual

enlightenment: it provides information about poverty and the lives of poor people.”).

B. Michigan’s Anti-Begging Statute Is a Content-Based Restriction on Speech.

A restriction on speech is content-based if its applicability turns on the speaker’s

message. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 643 (1994). Content-based

restrictions on speech are “presumptively invalid.” R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992).


6

Here, in order to determine whether Michigan’s anti-begging statute has been violated,

one must look at the content of the suspect’s speech. A person holding up a sign that states

“Stop Hunger in Africa” is not subject to arrest, while a person holding up a sign that states “I’m

Hungry, Please Help” can be hauled off to jail. It is the content of the sign (or the request for

help) that determines whether the statute applies. As one prominent scholar has explained in the

seminal law review article on the issue:

Governments that prohibit begging to do not forbid all communications among strangers…. [B]ans on begging look at all the words spoken among strangers – the tourist’s request for directions, the newspapers seller’s exhortation to ‘read all about it,’ the politician’s pitch to ‘vote Democratic,’ and the Christmas Santa’s plea to give to the needy – and prevent expression on one particular subject.

Hershkoff, Begging to Differ, 104 Harv. L. Rev. at 907.

Courts have repeatedly found that bans on begging are content-based restrictions on

speech. As the Massachusetts Supreme Judicial Court explained in invalidating that state’s anti-

begging statute as “content- and view-point-based”:

[The statute] states a broad ban on begging that by its terms makes distinctions based on the content of the message conveyed. Under the statute, only communicative activity that asks for direct, charitable aid for the beggar constitutes a crime.… By prohibiting peaceful requests by poor people for personal financial aid, the statute directly targets the content of their communications, punishing requests by an individual for help with his or her basic human needs while shielding from government chastisement requests for help made by better-dressed people for other, less critical needs. The statute is thus necessarily content based because the content of the individual’s message determines guilt or innocence. The statute may also be fairly characterized as viewpoint based because it favors the view that poor people should be helped by organized groups and should not be making public requests for their necessities.

Benefit, 679 N.E.2d at 188-89. Similarly, the Second Circuit struck down a New York anti-

begging statute on the grounds that it was “not content neutral because it prohibit[ed] all speech

related to begging,” while allowing speech on other topics. Loper, 999 F.2d at 705. The statute

“silence[d] both speech and expressive conduct on the basis of the message.” Id.


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C. Michigan Anti-Begging Statute Bans Speech in Traditional Public Fora.

M.C.L. § 750.167(1)(h) bans all begging in all public places, and thus must be scrutinized

under the Supreme Court’s public forum doctrine, which holds that public fora “represent areas

within which tolerance for inhibitions on speech … is at a minimum, and the government’s

burden of justification is at its highest.” NAACP, Western Region v. City of Richmond, 743 F.2d

1346, 1355 (9th Cir. 1984) (quoting L. Tribe, American Constitutional Law 684 (1978)). The

reason for this exacting standard is that the public streets “have immemorially been held in trust

for the use of the public and, time out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discussing public questions.” Shuttlesworth v.

City of Birmingham, 394 U.S. 147, 152 (1969) (citation and quotation marks omitted). Indeed,

“streets, sidewalks, parks, and other similar public places are so historically associated with the

exercise of First Amendment rights that access to them for the purpose of exercising such rights

cannot constitutionally be denied broadly and absolutely.” Hudgens v. NLRB, 424 U.S. 507, 515

(1976). In sum, in “traditional public fora” such as “sidewalks, parks and other areas that by

tradition or by government fiat are open to public assembly and debate,” Miller v. City of

Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010) (internal quotation marks omitted), the

government’s power to limit speech protected by the First Amendment is “sharply

circumscribed,” Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).

When a law imposes an “absolute prohibition on a particular type of expression” within a

traditional public forum, it “will be upheld only if narrowly drawn to accomplish a compelling

governmental interest.” United States v. Grace, 461 U.S. 171, 177 (1983). “It has long been the

case that content-based regulations of the citizen’s right to engage freely in speech in


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quintessential public fora presumptively violate the First Amendment.” Logsdon v. Hains, 492

F.3d 334, 346 (6th Cir. 2007).

Michigan’s anti-begging statute prohibits begging in any public place—including

traditional public fora such as streets, sidewalks, and parks. Moreover, Michigan’s anti-begging

statute prohibits only certain types of speech in public fora. Under the statute, it is legal to stand

in a public place and ask “What time is it?” or “Do you believe in God?”, but it is a crime to

stand in a public place and ask, “May I have a dollar?” In other words, M.C.L. § 750.167(1)(h)

restricts speech in traditional public fora based on its content. Therefore, it is presumptively

unconstitutional.

D. The Statute Is Not Narrowly Tailored To Achieve a Compelling State Interest.

As a content-based infringement on free expression in public fora, M.C.L. §

750.167(1)(h) is subject to the highest level of constitutional scrutiny. The statute can be upheld

only if it is both “necessary to serve a compelling state interest and … narrowly drawn to achieve

that end.” Boos v. Barry, 485 U.S. 312, 321 (1988); see also Perry, 460 U.S. at 45. Because

Michigan’s anti-begging statute is neither necessary to serve a compelling state interest nor

narrowly drawn, it must be struck down.

With respect to the state’s interest in barring all begging, the only possible justification

for such a blanket ban is that requests for charity, with their implicit reminder that some

members of the community live in poverty, can be discomforting. However, “[i]f there is a

bedrock principle underlying the First Amendment, it is that the Government may not prohibit

the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Texas v. Johnson, 491 U.S. 397, 414 (1989). The Supreme Court has consistently held that “mere

public intolerance or animosity cannot be the basis for abridgment of . . . constitutional


9

freedoms,” Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971), and speech cannot be

punished on account of its “profound unsettling effects,” “public inconvenience, annoyance, or

unrest.” Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). See also Forsyth County v.

Nationalist Movement, 505 U.S. 123, 134 (1992) (“Listeners’ reaction to speech is not a content-

neutral basis for regulation.”).

Although panhandling can at times be annoying or unpleasant to passersby, avoiding

such experiences is not a compelling state interest that justifies the infringement of free speech in

public fora. The “perceived public interest in avoiding the aesthetic discomfort of being

reminded on a daily basis that many of our fellow citizens are forced to live in abject and

degrading poverty” is not a compelling reason to limit the speech of those fellow citizens.

Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1066 (S.D.N.Y. 1995). See

also Benefit, 679 N.E.2d at 190 (“A listener’s annoyance or offense at a particular type of

communicative activity does not provide a basis for a law burdening that activity, especially

because people are free to ignore or walk away from the beggar’s request for money or

attention.”); C.C.B., 458 So.2d at 50 (Florida anti-begging ordinance held unconstitutional

because “[p]rotecting citizens from mere annoyance is not a sufficient compelling reason to

absolutely deprive one of a first amendment right”); Blair, 775 F. Supp. at 1324.

Michigan’s blanket anti-begging statute not only fails to serve a compelling government

interest, but it also fails the narrow tailoring requirement. Indeed, M.C.L. § 750.167(1)(h) bans

all begging in all public places, and therefore a “more encompassing prohibition of speech in a

public forum would be difficult to create.” Blair, 775 F. Supp. at 1324 (striking down California

statute prohibiting begging “in any public place or in any place open to the public”).


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To the extent that the Defendants may assert government interests (beyond simple public

disfavor of speech by those engaged in begging) to justify the statute, those arguments must fail

because Michigan’s anti-begging statute is not narrowly tailored to those interests. For example,

the government does have an interest in protecting citizens from intimidation and harassment.

However, “acts of coercing, threatening, or intimidating, if clearly defined, may be

constitutionally prohibited by the state via a statute that does not limit [] freedom of speech.”

Blair, 775 F. Supp. at 1324. A blanket ban on speech is not narrowly tailored to address

concerns about aggressive begging.

Michigan and its municipalities can and do prohibit activities such as trespassing,

intimidation, fraud, obstructing traffic, or unwanted physical contact. The Defendants can

enforce these criminal laws against individuals who, in the course of begging, commit such

crimes. But the Defendants cannot make it a crime simply to request charity. As the Second

Circuit explained in Loper:

It does not seem to us that any compelling state interest is served by excluding those who beg in a peaceful manner from communicating with their fellow citizens. Even if the state were considered to have a compelling interest in preventing the evils sometimes associated with begging, a statute that totally prohibits begging in all public places cannot be considered “narrowly tailored” to achieve that end.

Loper, 999 F.2d at 705. See also Ledford, 652 So.2d at 1265 (striking down ordinance for failure

to distinguish between “aggressive” and “passive” begging); Benefit, 679 N.E.2d at 190; (“[N]o

compelling State interest has been demonstrated that would warrant punishing a beggar’s

peaceful communication with his or her fellow citizens in a public place.”). In sum, Michigan’s

blanket anti-begging statute neither serves a compelling government interest, nor is it narrowly

tailored to address legitimate government concerns about improper behavior by some individuals

engaged in begging.


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II. MICHIGAN’S BLANKET BAN ON BEGGING IS FACIALLY UNCONSTITUTIONAL AS A VIOLATION OF THE EQUAL PROTEC TION CLAUSE.

Because M.C.L. § 750.167(1)(h) is a content-based restriction on speech that targets

some speakers and not others, it violates not just the First Amendment, but also the Equal

Protection Clause. For example, in Carey v. Brown, 447 U.S. 455 (1980), the Supreme Court

struck down an Illinois statute that prohibited peaceful picketing of residences or dwellings, but

exempted labor picketing. Because the statute discriminated among those allowed to picket

“based on the subject matter of their expression,” it violated the Equal Protection Clause of the

Fourteenth Amendment. Id. at 471. See also Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819, 828 (1995) (“government regulation may not favor one

speaker over another”). When an equal protection claim is based on the violation of a

fundamental right – here freedom of speech – courts will uphold the law only if the distinctions

drawn by the state are “finely tailored to serve substantial state interests.” Carey, 447 U.S. at

461-62.

M.C.L. § 750.167(1)(h) applies only to begging. Individuals may ask passersby for the

time. They may ask passersby for a signature on a petition. They may ask passersby to save the

whales, or attend a concert, or pray for peace. But they may not ask passersby for a dollar.

Moreover, M.C.L. § 750.167(1)(h) applies only to “beggars.” A Salvation Army bell

ringer may stand with a bucket collecting change, but an indigent may not stand with a cup and

do likewise. Firemen may hold out boots by the side of the road for their “Fill the Boot”

campaigns, but the homeless may not similarly stretch out their hands. Members of a high

school sports team may solicit money so that they can buy sports equipment, but the poor may

not request funds to buy a meal.


12

The fact that M.C.L. § 750.167(1)(h) applies only to begging, and not to other requests

for funds on public streets, fatally undercuts any purported justifications for regulating begging.

See, e.g., Loper, 999 F.2d at 705 (if city truly had important interests in preventing donations, it

would not allow solicitation by charitable organizations on city streets). For example, a fireman

passing a boot near a stoplight has at least as much impact on traffic as an indigent standing in

the same spot with a sign. Thus, though the government has an interest in traffic safety, even a

narrowly-tailored law targeting traffic safety concerns would be invalid under the Equal

Protection Clause if it allowed favored speakers, such as firemen, to solicit for donations, but not

disfavored speakers, such as the homeless.

In sum, because M.C.L. § 750.167(1)(h) prohibits speech based on the speaker and the

speech, it violates the Equal Protection Clause, and cannot stand.

III. THE COURT SHOULD ISSUE A PERMANENT INJUNCTION AGAINST ENFORCEMENT OF MICHIGAN’S BLANKET BAN ON BEGGING.

Plaintiffs seek a permanent injunction pursuant to Fed. R. Civ. P. 65 against any

enforcement of M.C.L. § 750.167(1)(h). Other courts have issued permanent injunctions against

similar anti-begging laws. See, e.g., Loper, 999 F.2d at 701 (upholding permanent injunction

against enforcement of NY’s anti-begging statute).

In order to obtain a permanent injunction, a plaintiff must demonstrate:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). That standard is easily met here.

First, with respect to “irreparable injury,”


13

[i]t is well settled that the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying the grant of a preliminary injunction. So too, direct penalization, as opposed to incidental inhibition, of First Amendment rights constitutes irreparable injury. One reason for such stringent protection of First Amendment rights certainly is the intangible nature or the benefits flowing from the exercise of those rights; and the fear that, if these rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.

Newsom v. Norris, 888 F.2d 371, 378-79 (6th Cir. 1989) (citing Cate v. Oldham, 707 F.2d 1176,

1188-89 (11th Cir. 1983) (internal citations omitted)). See also Elrod v. Burns, 427 U.S. 347, 373

(1976) (“The loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.”).

Not only have the Plaintiffs been deprived of their First Amendment freedoms in the

recent past as a result of Michigan’s unconstitutional begging statute, but their speech continues

to be chilled by the statute because the Defendants continue to enforce it. See John Agar, “Is

panhandling a right? ACLU suit against Grand Rapids asks that state law be struck down,” The

Grand Rapids Press (Sept. 14, 2011), available at: http://blog.mlive.com/grpress/news_impact/

print.html?entry=/2011/09/is_panhandling_a_right_aclu_su.html (quoting Mayor George

Heartwell as saying that “the city will continue enforcing the law until and unless a judge

overturns it”).

Second, there is no adequate remedy at law. In order for a legal remedy to suffice, it

“must not only be plain, speedy and adequate, but as adequate to meet the ends of justice as that

which the restraining power of equity is competent to grant.” Harris Stanley Coal & Land Co.

v. Chesapeake and O.Ry.Co., 154 F.2d 450, 453 (6th Cir. 1946). There simply are no such

adequate legal remedies where government officials have violated a person’s free speech rights,

and the person faces continued interference with his or her freedom of speech. See, e.g., Saieg v.

City of Dearborn, 641 F.3d 727, 742 (6th Cir. 2011) (injunctive relief appropriate because no


14

adequate remedy at law where pastor had been restricted from distributing literature near a

festival and wished to distribute literature in the future).

Moreover, because no one should not be forced to risk arrest, prosecution, and

incarceration when they exercise their constitutional rights, the Supreme Court has long

recognized that plaintiffs can challenge unconstitutional criminal statutes without waiting for

arrest or prosecution. See, e.g., Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“it is not

necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to

challenge a statute that he claims deters the exercise of his constitutional rights”). It is also clear

that an injunction should issue where government actions have chilled the plaintiffs’ speech.

See, e.g., G.V. Lounge, Inc. v. Michigan Liquor Control Commission, 23 F.3d 1071, 1076 (6th

Cir. 1994) (injunction should issue because the threat of a liquor license revocation had “already

chilled Plaintiff from presenting a First Amendment protected activity to the public,” even

though the license had not yet been revoked).

Third, the balance of hardships between the Plaintiffs and the Defendants weighs heavily

in favor of a remedy in equity. Plaintiffs have in the past been arrested, prosecuted, and jailed

under the statute. They suffer current harm because their speech has been chilled. Their speech

will continue to be chilled absent an injunction. Moreover, because Defendants have indicated

that they intend to continue enforcing the statute, Plaintiffs are in imminent danger of again

being criminally charged for conduct that is protected by the First and Fourteenth Amendments

of the United States Constitution. By contrast, Defendants have no legitimate interest in

enforcement of an unconstitutional statute.


15

Finally, the public interest would be served by issuance of an injunction because “it is

always in the public interest to prevent the violation of a party’s constitutional rights.”

Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).

IV. IN THE ALTERNATIVE, THE COURT SHOULD GRANT A PR ELIMINARY INJUNCTION.

Plaintiffs believe that summary judgment is proper as to Counts One and Three of the

Complaint, as those counts involve a facial challenge to the language of Michigan’s anti-begging

statute, and as there are no facts in dispute with respect to those Counts. However, in the event

that the Court should identify any factual issues related to Counts I and III that necessitate

discovery and make summary judgment inappropriate at this time, Plaintiffs request that the

Court issue a preliminary injunction instead.

In ruling on a motion for a preliminary injunction, courts must consider whether: (1) the

movant is likely to prevail on the merits; (2) the movant would suffer an irreparable injury if the

court does not grant a preliminary injunction; (3) a preliminary injunction would cause

substantial harm to others; and (4) a preliminary injunction would be in the public interest. See G

& V Lounge, 23 F.3d at 1076. Of these factors, the likelihood of success is the most important

and should be addressed first. See ACLU of Kentucky v. McCreary County, 354 F.3d 438, 445

(6th Cir. 2003). In addition, the Court is authorized to “exercise[e] its discretion to issue a

preliminary injunction if the movant has, at minimum, shown serious questions going to the

merits and irreparable harm which decidedly outweighs any potential harm to the defendant if

the injunction is issued.” Six Clinics Holding Corp. v. Cafcomp Systems, Inc., 119 F.3d 393, 399

(6th Cir. 1997) (quotation and citation omitted). Because a preliminary injunction serves only

the limited purpose of establishing the parties’ right pending a trial on the merits, such

injunctions are “‘customarily granted on the basis of procedures that are less formal and evidence


16

that is less complete than in a trial on the merits…[and a party] is not required to prove his case

in full’” in order to obtain relief. Certified Restoration Dry Cleaning Network v. Tenke Corp.,

511 F.3d 535, 543 (6th Cir. 2007) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395

(1981)).

Here, consideration of each of the four factors supports issuance of an injunction, and

indeed other courts have issued preliminary injunctions in similar circumstances. See, e.g.,

Benefit, 679 N.E.2d at 190 (upholding grant of preliminary injunction against a Massachusetts

anti-begging statute).

First, for the reasons outlined above, the plaintiffs are likely to prevail on the merits.

Second, as discussed above in the context of the requested permanent injunction,

Plaintiffs’ speech is being chilled, and they face an imminent threat of arrest, prosecution, and

incarceration if they engage in begging in the future. They will suffer irreparable harm if the

preliminary injunction is denied.

Third, a preliminary injunction would not cause substantial harm to others. As a matter

of law, a party cannot claim that it will be harmed by an injunction if the conduct to be enjoined

violates the Constitution. See Tyson Foods v. McReynolds, 865 F.2d 99, 103 (6th Cir.

1989) (holding that defendant “has suffered no injury as a result of the preliminary injunction

[because it] has no right to the unconstitutional application of state laws"). Moreover, while

some may be uncomfortable when confronted with the reality that members of our community

are homeless or hungry, such discomfort does not constitute substantial harm. It is no different

from the distaste one might feel when one sees a political sign with which one disagrees, or the

distress one might experience driving through an impoverished area of the city. See, e.g.,

Streetwatch, 875 F. Supp. at 1066 (refusing to give any weight to the perceived public interest in


17

avoiding the discomfort of being confronted with homelessness, and instead issuing preliminary

injunction on behalf of homeless who were “exposed to a continuous risk of violations of their

most basic constitutional rights as equal members of the American community”).

To the extent that there are problems associated with begging, those concerns can be

addressed through the application of constitutionally valid laws that prohibit trespassing,

harassment, intimidation, fraud, obstructing traffic, or unwanted physical contact.

Finally, as noted above, with respect to the public interest, “it is always in the public

interest to prevent the violation of a party’s constitutional rights.” Reno, 154 F.3d at 288.

RELIEF REQUESTED

M.C.L. § 750.167(1)(h) is unconstitutional on its face under both the First Amendment

and Equal Protection Clause of the United States Constitution. Therefore, Plaintiffs request that

this Honorable Court grant summary judgment on the First and Third Counts of their Complaint,

declare that M.C.L. § 750.167(1)(h) is unconstitutional on its face, and permanently enjoin

Defendants from enforcing the statute. In the alternative, Plaintiffs request that the Court issue a

preliminary injunction against enforcement of the statute.

Respectfully submitted,

/s/ Miriam J. Aukerman Miriam J. Aukerman (P63165) West Michigan Regional Office American Civil Liberties Union Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 616-301-0930 [email protected] Attorneys for Plaintiffs

/s/ Daniel S. Korobkin Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 [email protected] [email protected] Dated: September 15, 2011


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Certificate of Service

This brief was filed using the Court’s ECF system, which provides same-day e-mail service to all counsel of record. The brief was also served by e-mail on attorney Margaret P. Bloemers, assistant city attorney for the City of Grand Rapids, at [email protected] and attorney Frank J. Monticello, chief of the Governmental Affairs Bureau of the Office of the Attorney General, at [email protected]. Additionally, counsel will serve this motion, together with the Summons and Complaint, in a manner set out in Fed. R. Civ. P. 4, on all Defendants.

/s/ Miriam Aukerman [email protected] – P63165

/s/ Daniel S. Korobkin [email protected] – P72842


Case 1:11-cv-00972-RJJ Doc #6-1 Filed 09/15/11 Page 1 of 6 Page ID#85






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Case 1:11-cv-00972-RJJ Doc #6 Filed 09/15/11 Page 1 of 22 Page … · JAMES SPEET and ERNEST SIMS, Plaintiffs, vs. BILL SCHUETTE, Attorney General for the State of Michigan, in his