Arrest the musicians—it’s the law

So it’s come to this: I’m walking on the sidewalk near Pritchard Park when a man in a wheelchair rolls up and starts serenading me with an a capella ballad about life on the streets. Part rap and part ditty, the song’s clever lyrics touch on a wide range of social issues, including Asheville’s new panhandling ordinance. After a little more than a minute, he sounds the final, warbling note and flips open a cigar box containing a handful of change, asking whether I would help support a struggling artist.

I did. And in doing so, both of us violated the spirit of Asheville’s new panhandling ordinance — he through his solicitation and I through my contribution. Granted, he was the only one to violate the letter of the law (the new ordinance says nothing about the people who perpetuate panhandling by subsidizing it), so I gave — knowing that the APD couldn’t and wouldn’t do a thing to me; such is the luxury of being a member of the mainstream. But doesn’t it take two to tango? How am I any different now than the john who pays the prostitute?

The balladeer’s performance was simply a response to the cue given him by the APD. Like a shrewd accountant playing a cat-and-mouse game with the Internal Revenue Service, he’s exploiting a perceived loophole in the new law. The crooning panhandler can see with his own eyes that street musicians are still performing throughout downtown, unmolested by law enforcement, their guitar cases or hats strategically positioned to accept gratuities. The problem is, that loophole doesn’t actually exist.

According to City Attorney Bob Oast and Assistant City Attorney Curt Euler (in their comments during the public hearing on the matter), the panhandling has to apply to all forms of solicitation in order to pass constitutional muster. As a result, street musicians, nonprofit organizations and religious groups must also be prohibited from using downtown’s streets and sidewalks to collect money. Otherwise, the law’s chances of surviving a legal challenge are slim: Selective enforcement can be the kiss of death for even the best-intended legislation.

The city attorneys, though, were following their own cue. They’d been instructed by the Asheville City Council to draft a law prohibiting the behaviors that some in our community say are threatening our quality of life and economic well-being: panhandling, public urination, loitering and public sleeping. Oast and Euler then did as they were told, producing an ordinance that targeted those activities. The two made it clear, however, that to stand up in court, the ordinance had to be directed at the actual behaviors — not at the indigent population most closely associated with them.

And so it is. Simply put, the new law isn’t vague. The ordinance’s wording on solicitation is unambiguous; but what isn’t so clear is the city’s enforcement of the law. Therefore, if we’re to be a law-abiding community (and if we want to lessen the likelihood of facing potentially lengthy — and costly — taxpayer-funded litigation), we must now arrest our street performers. We’ll also need to bust Manna Food Bank — that carrot sign of theirs (on the traffic median near City/County Plaza) that tracks their fund-raising progress is nothing more than a clever form of solicitation. The singing guy in the wheelchair (who’s also pretty clever) will need to be cited, too. And let’s just hope no tourists are around to witness that one — such a spectacle could leave a lasting impression on people visiting a city that once prided itself on its tolerance.

Sounds horrible, doesn’t it? But such is the price we pay when we rely on legislation to control behavior: Laws can be double-edged swords that cut both ways, and Lady Justice, who wields this menacing weapon, does it blindfolded (presumably to keep those scales in her other hand balanced).

Ironically, this brouhaha we find ourselves embroiled in appears to stem from the efforts of a few bad apples. Several sources who were closely involved in developing the ordinance (including an APD representative) have told Xpress that a mere 19 or 20 individuals — in a city of 70,000 — are responsible for most of the problems downtown. Yet the APD’s own statistics show that between January 2001 and September 2002, 232 citations were issued under the city’s old ordinance (which prohibited “aggressive” panhandling). This information raises several questions:

1) Does anybody honestly believe that these 19 or 20 scofflaws will obey this new law?

2) If our previous panhandling law proved so ineffective despite being enforced 232 times in the space of 20 months, and recidivism (as we’re told) is rampant among this handful of disgruntled folks, doesn’t that suggest that instituting punitive measures may not be the best way to approach the problem?

3) Are we really willing to sacrifice such enlivening elements of our collective experience as street musicians and charitable fund raising — activities that contribute to the ambiance and health of our community — in order to curtail the activities of what’s widely acknowledged to be a smattering of people, all in the name of preserving our community’s ambiance and health?

4) Have we really exhausted all other means of addressing this problem — or have we simply resorted to a legislative shortcut?

One can’t help but notice that behavioral issues have occupied a considerable chunk of Council’s time and energy of late. The issues on their agenda are often driven by citizen complaints; one could argue that this is local government being responsive. This much we know: The Asheville City Council is listening. And what they’re hearing is clearly affecting what they’re doing.

But who are they listening to?

If legislation is going to be based on the squeaky-wheel theory, shouldn’t the legislators at least have to quantify those complaints? Doesn’t the citizenry deserve to know whether there have been two complaints — or 2,000 — about a particular problem? And, in any case, does such a standard inevitably transmute pressing issues into nothing more than head-counting contests?

During the debate over the recent changes to the panhandling ordinance, Council members and city staffers frequently referred to the “numerous complaints” they’d received about aggressive panhandlers downtown. And unquestionably, the Asheville City Council is elected by the people and should represent the people. But who are these complainers exactly? And what relation do their specific concerns have to the wishes of the rest of us?

City Council, meanwhile, hasn’t finished with the homeless yet. Just one month after adopting the new panhandling ordinance, Council waded into the fray surrounding a soup kitchen operating in Montford. Once again, citizens’ complaints are said to have prompted Council action. and city government maintains that they didn’t know the soup kitchen even existed until the complaints started coming in. At issue is whether running a soup kitchen is a permitted activity in the area, as well as whether the facility is bringing unwanted behaviors to the neighborhood. But given the timing of this debate, one must ask, “Why now?”

On the one hand, the city says they passed the new panhandling ordinance after close consultation with the social-service agencies that serve the local indigent population. In the next breath, they turn around and tell us they had no idea a soup kitchen was doing a lively business one block from downtown.

Something is amiss here. Do we really have any grasp of the problems of poverty? Do we know the scope and scale of poverty in Asheville? Or are we legislating in the dark — crafting law after law in a futile effort to quiet the complaints rather than shining light on the discomfiting realities that spawn them?