ACLU warns Merriam new ordinance limiting panhandling is ‘unconstitutional’

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The city of Merriam is standing firm on its new ordinance that prohibits pedestrians from standing in medians at nine major intersections.

Merriam’s City Council approved the ordinance in a 6-2 vote on February 8, despite concerns that the measure singles out panhandlers — though the ordinance doesn’t mention panhandling.

The American Civil Liberties Union of Kansas and the National Homelessness Law Center, a national legal organization dedicated to ending homelessness, are now also raising concerns.

On March 15, the two organizations sent a four-page letter to the city council and mayor expressing their objections to the ordinance, saying it is unconstitutional and could make the problem of poverty worse

The letter says that the two organizations and the city “share the goal of reducing the number of people who need to ask for charity on Merriam streets.”

Still, this goal should be met with a “desire to implement the best, evidence-based ways of getting there,” the letter reads.

“This proposed ordinance, unfortunately, is both unconstitutional and a step in the wrong direction,” the ACLU and NHLC letter reads. “And our organizations write to urge the city of Merriam to consider adopting proven, constructive alternatives instead.”

Similar Oklahoma City law deemed unconstitutional

A similar law in Oklahoma City — which prohibited people from standing, sitting or loitering in medians on roadways with speeds higher than 40 miles per hour — was recently deemed unconstitutional, pedestrian and bike advocacy news site Streets Blog reports.

Oklahoma City cited similar public safety concerns as some Merriam officials in passing the ordinance there, but the U.S. Supreme Court ultimately declined to hear city’s appeal of a lower court’s ruling.

The ACLU brought the suit against Oklahoma City, arguing the law had “nothing to do with traffic safety.”

The letter the ACLU of Kansas and NHLC sent to Merriam makes a similar case but stops short of threatening legal action for now. Instead, the organization say they want to “sit down with the City to discuss the above issues and work toward an effective solution.”

The organizations argue Merriam’s ordinance is unconstitutional because:

  • The First Amendment prohibits the city from infringing on resident rights to speak out about a number of topics including the right to request charity.
  • Traffic medians are subject to First Amendment protection as they are considered public forums.
  • Similar anti-panhandling ordinances have been found unconstitutional.

While the ACLU and NHLC letter ask the city to look for other ways to limit the need for panhandling in Merriam, it also offers a way for the city to house its homeless population.

Federal COVID-19 relief funds, the letter suggests, could allow the city to house its homeless population at hotels or motels during the pandemic at no cost to Merriam.

Kansas City, Mo., recently allocated federal funds to house up to 500 housing insecure residents in hotels for up to 90 days.

The letter also argues that issuing fines to people occupying medians is counterproductive and “will contribute to the cycle of poverty.”

“The persons who are standing in medians to ask for help need social workers to connect them to housing and services, not police officers to give them tickets and notices to appear in court,” the letter reads.

Merriam’s response

The city of Merriam’s attorney, Ryan Denk, sent a letter on March 24 in response to the ACLU and NHLC.

The city’s letter makes clear Merriam plans to stand behind the ordinance.

“While we appreciate your notice regarding potential avenues to enable the city to safely house its homeless population, we respectfully disagree with your position that the ordinance is unconstitutional,” the city’s response letter reads.

The city’s letter goes on to outline three ways in which the ordinance meets constitutional muster from the city’s perspective.

  • The ordinance does not restrict the content of speech. Rather it is a “time, place and manner restriction.” Panhandlers are not the only people who cannot be in the nine specified medians. Nobody is allowed to be on them, the city argues
  • The ordinance “is narrowly tailored” to promote public safety, which “is a significant government interest.” People are prohibited from the nine medians because it is unsafe to sit or stand on them due to the amount of traffic.
  • There are plenty of other places within the city that the public is able to “communicate… their speech rights.” For example, a pedestrian could be on the sidewalks adjacent to the right of way, the letter says.

“The city stands by its decision to enact the ordinance in furtherance of its devotion to furthering the public health, safety and welfare of its citizens,” the response letter reads.

About the author

Juliana Garcia
Juliana Garcia

👋 Hi! I’m Juliana Garcia, and I cover Prairie Village and northeast Johnson County for the Johnson County Post.

I grew up in Roeland Park and graduated from Shawnee Mission North before going on to the University of Kansas, where I wrote for the University Daily Kansan and earned my bachelor’s degree in  journalism. Prior to joining the Post in 2019, I worked as an intern at the Kansas City Business Journal.