225 F.3d 899 (7th Cir. 2000), 99-3770, Gresham v Peterson et al

Docket Nº:99-3770
Citation:225 F.3d 899
Party Name:Jimmy Gresham, on his own behalf and on behalf of a class of those similarly situated, Plaintiff-Appellant, v. Bart Peterson, in his official capacity as Mayor of the City of Indianapolis, Indiana, and the City of Indianapolis, Indiana, Defendants-Appellees.
Case Date:August 31, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 899

225 F.3d 899 (7th Cir. 2000)

Jimmy Gresham, on his own behalf and on behalf of a class of those similarly situated, Plaintiff-Appellant,

v.

Bart Peterson, in his official capacity as Mayor of the City of Indianapolis, Indiana, and the City of Indianapolis, Indiana, Defendants-Appellees.

No. 99-3770

In the United States Court of Appeals, For the Seventh Circuit

August 31, 2000

Argued March 30, 2000

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 99 C 1101--S. Hugh Dillin, Judge.

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[Copyrighted Material Omitted]

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Before Harlington Wood, Jr., Easterbrook and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Jimmy Gresham challenges an Indianapolis ordinance that limits street begging in public places and prohibits entirely activities defined as "aggressive panhandling." Gresham believes that the ordinance infringes his First Amendment right to free speech and his Fourteenth Amendment right to due process. The city considers the ordinance a reasonable response to the public safety threat posed by panhandlers. The district court found that a state court could construe the ordinance in such a way to render it sufficiently clear and specific and granted the city summary judgment on Gresham's request for a permanent injunction. We affirm.

I. History

The parties have stipulated to the relevant facts, which for the purposes of reviewing a summary judgment motion, we accept as true. See Cable v. Ivy Tech State College, 200 F.3d 467, 476 (7th Cir. 1999). In June 1999, the City of Indianapolis amended an ordinance regarding solicitation in public places. The ordinance, which became effective on July 6, 1999, reads as follows

(a) As used in this section, panhandling means any solicitation made in person upon any street, public place or park in the city, in which a person requests an immediate donation of money or other gratuity from another person, and includes but is not limited to seeking donations:

(1) By vocal appeal or for music, singing, or other street performance; and,

(2) Where the person being solicited receives an item of little or no monetary value in exchange for a donation, under circumstances where a reasonable person would understand that the transaction is in substance a donation.

However, panhandling shall not include the act of passively standing or sitting nor performing music, singing or other street performance with a sign or other indication that a donation is being sought, without any vocal request other than in response to an inquiry by another person.

(b) It shall be unlawful to engage in an act of panhandling on any day after sunset, or before sunrise.

(c) It shall be unlawful to engage in an act of panhandling when either the panhandler or the person being solicited is located at any of the following locations; at a bus stop; in any public transportation vehicle or public transportation facility; in a vehicle which is parked or stopped on a public street or alley; in a sidewalk caf ; or within twenty (20) feet in any direction from an automatic teller machine or entrance to a bank.

(d) It shall be unlawful to engage in an act of panhandling in an aggressive manner, including any of the following actions

(1) Touching the solicited person without the solicited person's consent.

(2) Panhandling a person while such person is standing in line and waiting

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to be admitted to a commercial establishment;

(3) Blocking the path of a person being solicited, or the entrance to any building or vehicle;

(4) Following behind, ahead or alongside a person who walks away from the panhandler after being solicited;

(5) Using profane or abusive language, either during the solicitation or following a refusal to make a donation, or making any statement, gesture, or other communication which would cause a reasonable person to be fearful or feel compelled; or,

(6) Panhandling in a group of two (2) or more persons.

(e) Each act of panhandling prohibited by this section shall constitute a public nuisance and a separate violation of this Code. Each violation shall be punishable as provided in section 103-3 of the Code, and the court shall enjoin any such violator from committing further violations of this section.

City-County General Ordinance No. 78 (1999), Revised Code of Indianapolis and Marion County sec. 407-102. Section 103-3 provides that a person convicted of violating the ordinance will be fined not more than $2,500 for each violation. The ordinance does not provide for imprisonment of violators, except, of course, a past offender who violates the mandatory injunction provided in Paragraph (e) could be jailed for contempt.

Jimmy Gresham is a homeless person who lives in Indianapolis on Social Security disability benefits of $417 per month. He supplements this income by begging, using the money to buy food. He begs during both the daytime and nighttime in downtown Indianapolis. Because different people visit downtown at night than during the day, it is important to him that he be able to beg at night. Gresham approaches people on the street, tells them he is homeless and asks for money to buy food. Gresham has not been cited for panhandling under the new ordinance, but he fears being cited for panhandling at night or if an officer interprets his requests for money to be "aggressive" as defined by the law.

Gresham filed this class action shortly after the ordinance took effect, requesting injunctive and declaratory relief. Gresham moved for a preliminary injunction barring enforcement of the ordinance on the grounds that it was unconstitutionally vague and violated his right to free speech. The district court, after hearing oral argument, notified the parties that it would convert its order on the preliminary injunction into an order on the merits. The parties filed additional memoranda of law, but no additional evidence. On September 28, 1999, the court entered a final order denying the motion for preliminary injunction and dismissing the case.

In the order, the district court construed the list of six actions that constitute aggressive panhandling as exclusive, eliminating the danger that someone could be cited for other, unenumerated acts. The court further ruled that the proscription in Paragraph (d)(5) against actions that make a person "fearful or feel compelled" was not unconstitutionally vague because it could be interpreted to mean "fear for his safety or feel compelled to donate." The court held that because the ordinance was civil in nature and the actions prohibited under aggressive panhandling were not related to speech interests, no intent element was necessary. Finally, the court found the ordinance to be a valid content-neutral regulation under Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983).

II. Analysis

On appeal, Gresham raises two principal arguments. First, he contends that the provisions defining aggressive panhandling are vague because they fail to provide clear criteria to alert panhandlers and authorities of what constitutes a violation and because they fail to include an

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intent element. Second, he argues that the statute fails the test for content-neutral time, place and manner restrictions on protected speech. We review de novo the question of whether a state law violates the Constitution. See Scariano v. Justices of Supreme Court of Ind., 38 F.3d 920, 924 (7th Cir. 1994).

A. The First Amendment

Laws targeting street begging have been around for many years, but in the last twenty years, local communities have breathed new life into old laws or passed new ones. Cities, such as Indianapolis, have...

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