Madison city attorney Michael May is recommending suspension of the city's panhandling ordinance amid concern it may be unconstitutional.

Amid concerns from the ACLU of Wisconsin, Madison is backing off its controversial panhandling ordinance and also reviewing the arrests and jailing of homeless or poor people for failure to pay fines.

The city is issuing unconstitutional citations for peaceful panhandling and jailing poor people who aren’t paying court-ordered fines and “must undertake significant changes in policy and practice” to comply with state and federal law, ACLU attorney Karyn Rotker wrote to city attorney Michael May in a six-page letter dated Jan. 5.

On Thursday, May said he will recommend that police suspend enforcement of the city’s 2012 panhandling ordinance “in total” due to court decisions in the past six months and concerns raised by the ACLU’s letter.

“We’ve been looking at it for some time. The (ACLU) letter caused us to look at it more closely now,” May said late Thursday afternoon. Until there’s a new decision by the U.S. Supreme Court, “we’re not going to put the city at risk.”

“In light of the constitutional problems we have identified, we are pleased with the recommendation to suspend enforcement of the panhandling ordinance, and we hope and assume that this recommendation will be followed,” Rotker said Thursday evening.

The police still will have tools to address clear abuses such as yelling and screaming at someone, physically demanding money, or blocking a pathway, May said, using laws that prohibit disorderly conduct, battery, trespassing and obstructing traffic.

“I’m disappointed,” said Downtown Ald. Mike Verveer, 4th District, a sponsor of the ordinance, who agrees with May’s legal analysis that the ordinance appears unconstitutional. “Panhandling is absolutely a quality-of-life issue for many, many Downtown residents and visitors.”

Verveer said he’s concerned about more aggressive panhandling, but said, “I do have faith the most egregious cases can be cited and dealt with through existing ordinances.”

Arrests over fines

The ACLU is “wrong” in assertions that the city is improperly arresting and jailing poor people for failing to pay fines, but the city is taking concerns seriously and will research them, May said.

The city, Rotker’s letter says, “appears to have incarcerated impoverished residents, including homeless people charged with panhandling ordinance violations, when they are unable to pay their court-ordered fines.”

Former Ald. Brenda Konkel, an outspoken advocate for the homeless, has been analyzing municipal court records and said police seem to be using incarceration, or the threat of it, as a tool to discourage unwanted behaviors.

“I’ve seen the allegations from (Konkel). We’ve heard it from others,” May said. “Our judgment, at this time, is we have not been doing anything improper.”

Those who are cited and later arrested have an opportunity to appear before Municipal Judge Dan Koval, who is “very, very good” about creating payment plans and opportunities for community service, May said.

Still, “we want to get the facts,” May said.

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Verveer, who also praised Koval’s handling of warrants, said it is worthwhile to review how police, the city attorney’s office and the municipal court handle cases.

Central Police District officials and Koval could not be reached late Thursday afternoon.

Evolving panhandling

Before 2012, the city banned aggressive and menacing panhandling citywide, and also had a citywide prohibition of any panhandling within 50 feet of an ATM, 25 feet of a sidewalk cafe or intersection, and certain distances from commercial buildings.

In August 2012, the City Council kept the ban on aggressive and menacing panhandling but made changes, including a ban on any panhandling in the Central Business District — essentially Capitol Square and State Street and one block in either direction.

It also aligned the citywide ban near ATMs, sidewalk cafes, and intersections to 25 feet, added a ban within 25 feet of establishments with an alcohol license, and dropped the ban from commercial buildings.

The changes were made to close loopholes in the law that allowed near constant panhandling in some specific areas on State Street, where people who weren’t homeless had even established a racket by enforcing who could panhandle in certain spots, Verveer said.

The ACLU has been concerned about that ordinance since it was passed, and increased pressure in August after a federal appeals court in Chicago said a panhandling law in Springfield, Illinois, can’t discriminate on the content of a speaker’s words, such as asking for money.

On Aug. 26, May emailed the ACLU that he had advised police to stop issuing general citations for panhandling while tickets for aggressive panhandling and soliciting vehicles in the streets would remain enforceable.

Now, it’s clear the Madison police have continued to enforce location-based components against peaceful panhandlers, Rotker wrote to May this week.

In her letter, Rotker cites nine “apparently unconstitutional citations, none of which indicate that there was a threat to public safety,” between Aug. 18 and Oct. 14.

Also, the city doesn’t appear to have conducted any training on this issue, she wrote.

“You can’t ban a kind of speech in public areas because people find it disgusting,” she said in an interview.

“Madison has been drawing the line in ways that violate protected speech. They need to go back to the drawing board.”

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