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Episode 8 — Panhandling and Real ID

Robert Kahne
My Old Kentucky Podcast
Published in
6 min readOct 26, 2016

Panhandling is Constitutional

  • Kentucky Supreme Court heard the case of Dennis Champion, who was jailed for violating a panhandling ordinance in Fayette County. The maximum penalty for panhandling in Fayette County is 30 days in jail and a $100 fine. In Jefferson County, it’s a $250 fine.
  • Champion lost in Fayette District Court and Circuit Court.
  • Meanwhile in Jefferson County, District Judge Eric Haner held that Jefferson County’s panhandling ordinance is unconstitutional.
  • Prosecutors: This is a public safety issue. It has nothing to do with the speech. It’s about the standing in the street and walking up to motorists and disrupting traffic flow. It’s dangerous to both the pedestrian and motorists.
  • Defense: 1) Panhandling is protected by the First Amendment. A beggar’s message contributes to the interchange of ideas regarding homelessness, and in fact, panhandling serves a public good and could even be political speech. 2) Cities have the right to have ordinances that include fines for civil penalties, but it is up to the legislature to decide what is criminal. An ordinance should not carry jail time.
  • 1A argument: Public streets are absolutely public forums, so this type of speech should be subject to strict scrutiny. Must have a compelling interest to regulate content-based speech.
  • Ordinance singles out begging. Selling Girl Scout cookies on a street corner is not considered panhandling.
  • Prosecutor: Intersection of two streets are not a public forum. This is not where people exchange ideas. It’d be dangerous if it were a public forum.
  • Similar citywide bans in other states have been found unconstitutional.
  • We don’t like content based restrictions, but Time-Place-Manner restrictions. A TPM restriction must be justified without reference to the content. If the speech is happening in a public forum, there must be a compelling government interest. If not, just has to be reasonable. But these panhandling ordinances seem to be about content, since they specifically address begging.
  • How can you tell if it’s a content based restriction or a TPM restriction?
  • What’s the government’s goal?
  • Keep people from getting the content? Probably a content restriction
  • Public safety? More likely a TPM.
  • Competing state laws. One law gives local governments authority to enact ordinances. One law says that the General Assembly must approve of crimes that carry jail time.
  • Judge Haner, who struck down Louisville ordinance, did not address the 1A argument. Haner cited a law that prohibits local governments from criminalizing offenses. This is the exclusive power of the legislature. It would essentially allow the Louisville Metro government to re-write the Penal Code.
  • Legislature is presumed to have known about that law when they passed the law allowing local governments to pass ordinances and the law allowing only the legislature to decide what’s criminal makes it clear that the legislature did not intend for local governments to decide what is criminal.

References

REAL ID Update — ROBERT

  • We talked about this a bit in the last show, but we wanted to do a bigger piece on it because it’s a complicated story that deserves some time.
  • History: Based on the 9/11 commission report (released in 2004), the federal government passed the Real ID Act of 2005. The idea was that better, more secure identification of Americans is an important defense against terrorism. This law was expected to cost a significant amount for states to implement, and funds were made available to offset the cost of implementation. I’m not sure what the original deadline for compliance with Real ID was, but the deadline was almost immediately extended to 2011, and then re-extended to 2013. After the 2013 deadline lapsed, states not in compliance were given an extra extension of at least six months.
  • Kentucky received an EXTRA extension in October 2015 of one year to get into compliance.
  • During the 2015 legislative session, there was a law that was actually passed by both the House and the Senate to get into compliance with this law. Governor Bevin originally stated on Facebook that he was in favor of Real ID compliance.
  • On April 28, after both houses had adjourned their business during the legislative session, Governor Bevin vetoed the Real ID law.
  • “Since that time, however, it has become increasingly clear that there is tremendous opposition and misunderstanding about this bill,” the governor wrote. “The widespread opposition comes from citizens of Kentucky across the entire political spectrum for a variety of different reasons. Good governance demands the courtesy of time needed to better understand and discuss the difference between ‘REAL ID’ as originally envisioned by its authors, and the minimal and voluntary requirements authorized by Senate Bill 245.”
    “By taking additional time to study alternative options for the traveling public, and having an additional year to continue the dialogue and clear up any remaining misinformation, Kentucky will be better positioned to enact any updates to our driver’s licensing system that may ultimately be needed.”
  • Kind of interesting that Governor Bevin asked for the “courtesy of time” given that the Real ID law has been on the federal books since 2005.
  • Kentucky requested an additional extension from the federal government after the 2015 extension ran out, but on October 12, the extension was denied (this was what we talked about last week). This means that enforcement of the Real ID act will begin, and that Kentucky driver’s licenses will not be adequate for entering certain places. This denial will happen in phases:
  • Phase 1: Restricted areas (i.e., areas accessible by agency personnel, contractors, and their guests) for DHS’s Nebraska Avenue Complex (NAC) headquarters.
  • Phase 2: Restricted areas for all Federal facilities and nuclear power plants.
  • Phase 3: Semi-restricted areas (i.e., areas available to the general public but subject to ID-based access control) for most Federal facilities (subject to limitations described in the next section). Access to Federal facilities will continue to be allowed for purposes of applying for or receiving Federal benefits.
  • Phase 4: Boarding federally regulated commercial aircraft.
  • Phase 4 is obviously the most intense one, and it will begin being enforced in 2018. So, there is still some time to get into compliance, but the clock is ACTUALLY ticking this time.

References:

Bevin declines to appeal

  • During the week when Jazmin abandoned me and I did the show all by myself, I talked about Matt Bevin’s loss at the Supreme Court. To remind you, the Supreme Court said that Governor Bevin did not have the authority to cut the amount of money universities received based on a previous session’s budget. Go back and listen to the old show, it’s only 10 minutes.
  • After the Supreme Court rules, the losing party has 20 days to ask the Supreme Court to reconsider. Governor Bevin, after the 20 days elapsed, made clear that he would not ask the Supreme Court to reconsider the law.
  • This issue is now dead, over, and done with.
  • This, to me, gives us a bit of a clue as to how Governor Bevin will handle potential future losses at the Supreme Court. Governor Bevin’s administration so far has been marked by a significant attempt to increase the power of the executive, but this decision does indicate that he respects the Supreme Court’s decision.

Reference

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Robert Kahne
My Old Kentucky Podcast

Written by Robert Kahne

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