Asheville City Council

“The Constitution does not give the government the right to criminalize speech just because it … makes some of us uncomfortable.”

— ACLU attorney Bruce Elmore Jr.

“When I was 10 years old, my father died and left my mother with six children under the age of 15 to raise. My mother had, at most, a seventh-grade education. She did the best she could, but we nonetheless lived a life that was often quite desperate. I’ve experienced most of the stereotypical bad things about being poor, one of the most painful of which was that my family usually lived in houses that didn’t have indoor plumbing — at a time when that was becoming less common. Most of the time, we didn’t even have an outhouse.

“I have never defecated on a public street, but I’ve squatted in the bushes and on the grass when that was the only option I had. I know now that there is no connection between where a person poops and his or her value as a human being, but I didn’t know it then. Learning to believe that was a long, hard struggle. When a basic human function that must be addressed day after day has to be done in a furtive, shameful way, it damages a person’s self-respect in a way that could make you permanently wounded.

“I’ve been living with flush toilets now for 30 years; during that time, I’ve earned two master’s degrees and become a writer of magazine articles, stories for children, and an award-winning essay about what it’s like to grow up without indoor plumbing. I know that some people want to believe that I got to where I am today because I’m different, that I’m not like those dirty, poor people who urinate on city streets. But I know better — I am like them, and I always will be. I got to where I am today because, along the way, there were people who treated me with respect and who kept treating me that way … even when I didn’t believe that I deserved [it].

“I also encountered the self-righteous, mean-spirited attitudes towards poor people that I have heard expressed here, and I can tell you from painful, personal experience that being on the receiving end of those attitudes does not communicate to people to do better. I don’t like anymore than the rest of you do to see or smell or step in substances that are regulated by this ordinance, somehow without ever calling them by name. … And I know better than some of you do just how hard it is to change the lives of the down and out. Some of the people that I love most in this world are still in that category despite everything that I can do. We’re not talking about an activity that can be postponed until the economy improves. … If you pass this ordinance, you can pretend to yourself that you’re making life better for the good, decent people of Asheville. But what you’re really doing is adding one more burden to the lives of people who already carry more than they can bear.”

These words, spoken by Asheville resident Melanie Scheller during City Council’s Nov. 12 formal session, moved many in the audience to tears. The occasion was a public hearing on revamping the city’s panhandling ordinance to prohibit sleeping, urination and defecation in public.

Despite Scheller’s eloquence, however, all seven members of the city’s governing body voted to adopt the new restrictions. To some, the crackdown seemed ironic considering the city’s appalling lack of public toilets, 20-year-high murder rate, and bankrupt budget (which has left local nonprofit organizations — including those that minister to the city’s homeless population — reeling from the loss of public funds). But other speakers applauded the move as necessary and vital to public morale and well-being.

The irony didn’t end there. Even as Council was debating the ordinance, local law-enforcement officials were awaiting the results of autopsies on two bodies found in the remains of an abandoned house that had burned down the previous weekend under suspicious circumstances. The two apparently homeless people are believed to have sought refuge in the dilapidated structure to escape from the cold.

But the new ordinance could have a chilling effect on all Asheville residents: In a classic case of throwing out the baby with the bath water, city attorneys Bob Oast and Curt Euler explained to Council that the ordinance must be carefully worded to withstand legal challenges. In other words, the prohibition on the targeted activities would have to apply to everyone and not be selectively applied only to the homeless population. So in order to stop the homeless from asking for money, the city will prohibit everyone from soliciting funds — including street musicians busking for coins and even those bell-ringing, kettle-toting soldiers of Christmas philanthropy, the Salvation Army. When Vice Mayor Terry Bellamy balked at the notion of barring church groups from soliciting donations, and when Council members Jim Ellis and Holly Jones questioned the inclusion of street performers, Oast said that he would explore some sort of permitting procedure for those activities. But his promise rang hollow as it became clear that any attempt to condone solicitation by a particular group would weaken the city’s legal position.

Oast’s concern over a legal challenge was well-founded; in fact, a representative from the local branch of the American Civil Liberties Union pointed out several glaring flaws in the ordinance. ACLU attorney Bruce Elmore Jr. told Council:

“The proposed ordinance is wrong morally, it’s wrong as a matter of policy, it’s wrong because it violates the Constitution of the United States. It is an infringement of free speech and expressive conduct. It is wrong morally because it removes an avenue of support that the poor and the handicapped and homeless have had available since biblical days. …

“Many of the provisions are unconstitutional and would waste the city’s resources to defend. … In 1980, the United States Supreme Court — in Schaumburg vs. Citizens for a Better Environment, the court ruled that charitable solicitations are a category of speech protected by the First Amendment. In 1993, the 2nd Circuit Court of Appeals, in a case titled Loper vs. New York City Police Department, ruled that a statute prohibiting begging in public places was invalid, and that any distinction between begging for charity itself is not significant. Courts and legal scholars have been almost unanimous since Loper in saying that begging is a form of speech and expressive conduct protected by the First Amendment.

“The Constitution does not give the government the right to criminalize speech just because it offends some of us or makes some of us uncomfortable. The proposed ordinance is clearly a content-based restriction on speech: A beggar would be permitted to approach someone in the downtown area or at an ATM and ask for the time, or ask for a signature on a petition to get rid of the ordinance, but not for money.”

Elmore went on to highlight the absurdity of the city’s ordinance by comparing it to recent attempts by other states to restrict cell-phone use: “The courts impose a much higher level of scrutiny on content-based restrictions on speech than [on] those which are general. The state may ban or restrict use of cell phones in moving motor vehicles, but they may not ban only religious conversations on cell phones while allowing other speech.”

Assistant City Attorney Euler, however, countered that the ordinance restricts behavior, not the content of speech. Regulations governing solicitation have been upheld as content-neutral, he noted. Euler cited a Florida town’s ordinance banning begging on the beach, which has been upheld by the 11th Court of Appeals.

The comparison was apropos, given the driving force behind Asheville’s initiative. In a memo presenting the new wording to City Council, Asheville Police Chief Will Annarino explained that the city has “received numerous complaints from residents, visitors and merchants regarding the large amount of panhandling and soliciting occurring in Asheville. … City staff has determined that such activities are causing a public-safety hazard by interfering with the free flow of pedestrian traffic on sidewalks; creating fear and anxiety for persons traveling downtown; and discouraging people from visiting downtown and Biltmore Village. In an effort to ensure the public safety of pedestrians in high-traffic areas and Biltmore Village, City staff recommends placing a limited ban on solicitation in specified areas based on the volume of pedestrian traffic as well as the impact the location has on tourism.”

And the ordinance itself makes the following claim: “The city of Asheville has a significant governmental interest in eliminating nuisance type activities to preserve a family-friendly atmosphere in downtown Asheville and the Biltmore Village Historic District and attract visitors to these areas.”

Accordingly, the reworded ordinance establishes solicitation-free zones in those two areas. That would apparently leave other parts of town (presumably less deserving of a government-enforced “family-friendly atmosphere”) ripe for the picking by resourceful panhandlers. One wonders what the merchants and residents in those areas will say if the new rules spark a migration of indigents to West Asheville or Tunnel Road.

But as George Orwell noted, “All animals are equal, but some animals are more equal than others.” Maybe he was thinking about tourists.

Council member Brian Peterson invoked Orwell’s name when he challenged Euler on the fairness of treating one part of the city differently than another. Peterson also wondered aloud whether the ordinance could really be applied without resorting to selective enforcement (i.e., targeting one class of people while ignoring others). Euler seemed to engage in an unwitting bit of Orwellian doublespeak when he noted that the officers wouldn’t be practicing selective enforcement but would use “prosecutorial discretion.” Police officers, Euler explained, do this when they give some drivers speeding citations while ignoring others who may be technically — but not flagrantly — breaking the speed limit. (That’s a fact to which anyone who’s ever been pulled over for DWB — driving while black — can attest.)

The ordinance also contains a section on loitering that could pose a problem for the folks who frequent the stretch of sidewalk outside Malaprop’s. Section 11-17b reads: “It shall be unlawful for any person to loiter, loaf, wander, stand or remain idle either alone or in consort with others in a public place in such a manner so as to obstruct any public street, highway or any other public place or building by hindering or impeding the free and uninterrupted passage of vehicles, traffic or pedestrians.”

But how do you distinguish between someone who’s waiting on a sidewalk to meet a companion, or relaxing in a park, and someone who’s “loitering” or “loafing” in those places? Once again, for the officers tasked with enforcing the law, it could very well boil down to the individual’s appearance, dress or manner.

As for wandering in a public place, Asheville’s finest will presumably inform visitors to our fair city that they should no longer wander the Urban Trail but proceed with a sense of purpose, lest they impede their fellow tourists.

When it came time for Council to discuss the matter, Council member Joe Dunn issued a scathing indictment of the ACLU, accusing the group of making the country “too politically correct” and selectively defending some constitutional rights while ignoring others, such as the right to bear arms and pray in school. Dunn added that he favors the measure because it reflects the wishes of what he called the “silent majority.” Mayor Charles Worley also noted his support, explaining that it was a difficult but necessary decision, because the city must “balance the needs of the unfortunate and the safety and welfare of the rest of our citizenry, who are offended by people relieving themselves or being accosted. It is a growing problem that threatens our citizens, economy and feeling of safety.”

After hemming and hawing, Council member Jones ultimately voiced support for the retooled ordinance. But she also insisted that the city make addressing the needs of the local homeless population a priority. In addition, Jones asked that $20,000 be appropriated from the general fund to the local nonprofit AHOPE so that the shelter the group runs can operate during the day on Saturdays.

And while $20,000 may not go a long way in addressing the needs of the homeless, it did raise the specter of guilt money among some disgruntled former supporters.

In the end, Peterson demanded that the vote on the ordinance be taken in stages. The section covering public sleeping, loitering, urination and defecation passed unanimously. The second vote, on the panhandling restrictions, passed 6-1 with Peterson opposed. Asked about it later, Peterson told Xpress that he couldn’t vote for the panhandling restrictions because, “It wouldn’t be very Christian to deny someone help when they ask for it.”

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