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ACLU to Boise, After Re-Write of Solicitation Ordinance: This All Could Have Been Avoided

"We hope that it doesn't take this type of legal action in the future to avoid something that really should have been taken care of at the city level."

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It wasn't one of those cork-popping celebrations, but make no mistake: Opponents who have been fighting Boise's controversial solicitation ordinance are cheering the city's concession that it needed to backpedal on the legislation, which was slated to go into effect earlier this month.

But it's not as if city officials weren't warned that they would need to--sooner than later--unwind the ordinance that critics said unfairly targeted Boise's homeless.

"The three members of the City Council who voted in favor of the ordinance are getting exactly what they voted for--a federal lawsuit," ACLU board member Erika Birch said last November as her organization filed a 19-page complaint against ORD-34-13, the city of Boise's Anti-Solicitation Ordinance.

Last June, Boise Weekly first examined the model legislation that Boise officials had used as a blueprint. Adopted in San Francisco, an independent review of the measure found it had "not been effective at abating aggressive panhandling, soliciting or panhandling (BW, News, "Out of the Panhandle, Into the Fire," June 5, 2013), let alone the legal flaws of the then-proposed ordinance.

"The ACLU warned the city on multiple occasions that the ordinance was unconstitutional, but they chose to pass it anyway," said Birch.

But after listening to hours of public testimony, overwhelmingly opposed to the ordinance, the Boise City Council voted 3-1 in September 2013 to pass the measure, which prohibits solicitation for donations colored by intimidation, obstruction of right-of-way or repeated attempts at solicitation after a negative response.

Voting in favor of the ordinance were Council President Maryanne Jordan and Councilmen Ben Quintana and T.J. Thomson. The only Council member voting against the ordinance was Lauren McLean.

Meanwhile, the city continued to dig in its heels on the matter.

"The ordinance was carefully crafted to prevent aggressive solicitation while still ensuring the protection of all citizens' speech," Adam Park, spokesman for Boise Mayor Dave Bieter, said in November. "The city will defend the ordinance and is confident it will withstand this legal challenge."

That was then.

On Jan. 2, the very day that the ordinance was scheduled to go into effect, U.S. District Court Judge Edward Lodge ruled in favor of the ACLU of Idaho and enjoined the city from enforcing the anti-solicitation law. Lodge wrote that the Boise ordinance was poorly crafted "to suppress particular speech" and that the case was "not about whether being asked for a donation of money on a sidewalk makes a person feel uncomfortable," but instead, "about whether under our Constitution, a person has a First Amendment right to ask for money. Business owners and residents simply not liking panhandlers in acknowledged public areas does not rise to significant governmental interest."

A Boise City Hall statement on the day of Lodge's ruling indicated that the mayor and City Council were reviewing the ruling. A week later, officials said they wanted a do-over of the ordinance.

In particular, Lodge took issue with the part of the ordinance that aimed to criminalize all solicitation--including speech aimed to "request, ask or beg, whether by words, bodily gestures, signs or other means, for an immediate donation of money or other thing of value." Lodge wrote that the definition of solicitation was much too broad, adding that "every person who solicits for money or property in the public areas defined in the statute are potentially criminally liable based merely on the content of their speech."

And even though the city was pressing the reset button, Bieter wasn't admitting defeat.

"It's important that we have an ordinance in place that helps alleviate unwanted solicitation while upholding constitutionally protected rights," Bieter said in a written statement. "This process has allowed the city to find that careful balance and will let us move forward with the most effective ordinance possible."

A spokesman for ACLU of Idaho said the organization is viewing the city's rewrite as a win-win for Boise citizens.

"In effect, they're repealing the sections of the ordinace--everything we challenged in court," said Leo Morales, communications and advocacy director for ACLU of Idaho. "Regrettably the city's decision only came after a lawsuit at taxpayers' expense."

City officials maintain that the ordinance still prohibits what is defined as "aggressive solicitation," including:

-nonconsensual physical contact.

-continued solicitation within 5 feet of the person being solicited after a negative response.

-intentionally obstructing the safe or free passage of the person being solicited.

-threatening statement intended to cause a reasonable person to be intimidated into responding affirmatively.

A statement from the mayor's office indicated that the city hoped the revised ordinance would go into effect immediately, but the Boise Police Department was planning on "educating the public for the first several months, and will take enforcement action only when circumstances require it."

"It's really critical that they're revising the ordinance in a swift manner," Morales told BW. "The city could have appealed this and continue to take it through the court, but obviously, they decided that it wasn't necessary."

Morales added that the ACLU of Idaho had always hoped to avoid a legal battle.

"And we hope that it doesn't take this type of legal action in the future to avoid something that really should have been taken care of at the city level," he said.