Greenville Attorney says Panhandling Ordinances are Unconstitutional
Published: December 13, 2017
By Angela Davis The Greenville News
A Greenville attorney who represents panhandlers in court is trying to bring attention to a state law and a Greenville County ordinance he believes are unconstitutional.
Attorney Stephen Henry says the state statute (56-5-3180) and county ordinance regarding soliciting or begging on the highway are a violation of the First Amendment and that the U.S. Supreme Court has already determined that panhandling is free speech.
“You can limit free speech as a government if you do it the right way,” Henry said. “They didn’t do it the right way in either the state or county ordinance.”
Henry also says both laws also violate the Equal Protection Clause of the Fourteenth Amendment in that it allows certain organizations and not individuals to solicit with a permit.
Greenville County Attorney Mark Tollison said the South Carolina Attorney General’s Office issued an opinion on state statute 56-3-3180, which the county enforces. He said the county attorney’s office “concurs with the attorney general that that statute is content neutral and enforcement would not be in violation of the First Amendment.”
Henry is a private practice attorney and the founder of Law In Action, a not-for-profit organization which has,historically, helped reduce overcrowding at the jail and helped provide free lawyers with the help of the circuit judges, summary court judges, and the public defender office.
Under a contract with the public defender’s office, Henry said he represents an average of 300 cases a year, some of which involve panhandling.
Nine out of 10 of the panhandling cases involve a defendant standing by a roadside with a sign. They wait for someone to signal them to offer them something before walking up to the car, Henry said.
Most are charged with soliciting without a permit, he said.
“Those are very easy to challenge because they can’t get one,” Henry said.
Often, Henry said, he’ll file motions to dismiss charges based upon the “unconstitutionality” of the state and Greenville County ordinances.
According to Greenville County ordinance 15-7, except as otherwise authorized by a state statute, “no person shall stand on a highway or street for the purpose of soliciting employment, business, or contributions from the occupant of any vehicle.”
However, the ordinance says the Greenville County Sheriff’s Office shall issue a permit to organizations such as rescue squads, volunteer fire departments, or charitable or eleemosynary organizations” described in the state law regarding the same issue.
These organizations “may solicit funds on highways and streets so long as such organization has obtained a permit as provided in a subsection,” the ordinance said.
Henry says the state law and the county ordinance punish the content of the speech, which is illegal.
An example he cites is a recent event in Greenville in which military officers or people in uniforms took to the streets to seek donations for Toys for Tots.
“They were all over the streets, in the medians, asking for donations,” Henry said. “People give donations because they see the Toys for Tots signs.”
Ronnie Baker is a homeless man who told The Greenville News that he panhandles off Woodruff Road. The requests by the Toys for Tots group and Baker are both good causes, Henry said.
“The difference is the content of the speech and the fact that Ronnie Baker cannot get a permit,” Henry said. “If you read the law, he’s not eligible to get one. That’s denial of equal protection, in my view.
“In other words, certain classes of people can beg or panhandle and certain other ones cannot.”
Henry said he finished a case recently for a young man who was carrying a sign. He’d been charged with violation of both the state statute and the county ordinance for soliciting without a permit and soliciting on a highway.
He said the motion to dismiss was granted on the equal protection argument.
“There is no way for the Ronnie Bakers to apply for a permit,” Henry said. “So when you charge them with soliciting without a permit, it’s really a false charge because there’s no way for him to get one.”
Henry said the laws need to be changed.
“If they’re going to deal with punishing for free speech, they need to make sure that the laws are written in a way that takes it into account,” he said.
The penalty for those picked up for soliciting without a permit is normally 30 days in jail or a $100 fine, Henry said. Offenders in the county get access to a free lawyer when they get arrested. Law in Action was instrumental in making that happen, according to its website.
Henry said he will continue to handle individual cases on panhandling and make motions to dismiss based on the constitutionality issues.
Eventually, he believes there will be enough court orders declaring the cases be dismissed to attract the attention of the 13th Circuit Solicitor’s Office.
Ultimately, the state appellate court system would decide whether the county ordinance and the state statute are constitutional, he said.
If declared unconstitutional, the county and the state county will either decide to rewrite their laws or leave it as is and not prosecute.
“My main thrust is not to criminalize panhandlers and to point out that the current laws do that,” he said. “The current laws, in my view, are unconstitutional.”