AN ACT to amend the general city law and the penal law, in relation to creating the crimes of urinating or defecating in public, and of aggressive begging, and authorizing cities to proscribe certain conduct in urban commercial zones.
The New York Civil Liberties Union strongly opposes this bill with respect to creating the crime of aggressive begging and authorizing cities to criminalize sitting or lying down on public sidewalks. Begging and use of public sidewalks for non-criminal activities are First Amendment rights protected by the United States and New York Constitutions. The provisions and definitional portions of the bill relating to urinating and defecating should be drafted more narrowly to avoid unconstitutionality for vagueness and due process violations.
This bill (insofar as it relates to begging) is evidently a response to Loper v. New York City Police Department, C.A. 2 (N.Y.) 1993, 999 F.2d 699 in which the Second Circuit Court of Appeals declared New York's prohibition against begging (penal Law § 240.35 (1) ) unconstitutional as a violation of the First Amendment protection of free speech. The bill would enact a new Penal Law § 240.70 which would make it a Class B Misdemeanor to engage in Aggressive Begging, that is to "beg with the intent to intimidate another person into giving money or goods, by engaging in conduct which threatens the person solicited which by its nature would place a reasonable person in fear of harm ...." This provision is based, in part, on a Seattle, Washington ordinance cited in Loper prohibiting aggressive begging (i.e., begging with the intent to intimidate). The Seattle ordinance was upheld by the Supreme Court of the State of Washington.
The bill would also amend Penal Law § 240.35 (1), the section invalidated in the Loper case, to make it a loitering offense if a person "loiters, remains or wanders about for the purpose of Aggressive Begging."
As the Second Circuit stated in the Loper case, New York has many laws on its books that prohibit conduct (including inappropriate begging) which trick, intimidate or threaten its residents (e.g., Penal Law § 240.25 relating to harassment; Penal Law § 240.20 relating to disorderly conduct; § 165.30 (1) relating to fraudulent accosting; Penal Law § 120.15 relating to menacing). There is no need for yet another law that is substantially redundant of existing penal statutes and may easily operate in practice so as to encroach on constitutional rights. There is a vague line between begging in a persistent but non-violent manner (which is a protected First Amendment right) and begging in such a forceful manner so as to constitute intentional intimidation. If this bill is enacted into law, it is inevitable that persons begging peacefully will be wrongfully arrested because it is impracticable to determine when persistent but non-violent begging becomes intended intimidation.
The proposed amendment to Penal Law § 240.35 (1) is especially pernicious because any person who is present on a public street can be arrested (even if he or she is not begging) if the person is perceived as being on the street "for the purpose" of begging "with the intent to intimidate." It is impossible to make this double determination of "purpose" and "intent" in a rational manner, and for that reason the proposed legislation will be unenforceable due to vagueness. (People v. Berck, 1973, New York Court of Appeals, 347 N.Y.S.2d 33).
Beyond being unconstitutional in various ways, this bill is antithetical to the principles and values of compassion and generosity that have been a notable part of New York life. While no one condones intimidation, the mean-spirited quality of this legislation, which threatens to jail those so desperate that they have to resort to begging, can be lost on no one. This "sign of the times" legislation represents a new New York that breaks sharply with our rich history of empathy for the poor and disadvantaged. We urge you to vote against this bill.
Sitting or Lying Down on Public Sidewalks
The bill would empower every city in New York State to enact ordinances prohibiting most persons from sitting or lying down (or utilizing chairs, stools, blankets, etc. for this purpose) on public sidewalks of designated "Urban Commercial Zones" during designated daytime hours. Although cities have the power to enact or not to enact this provisions, if cities do enact relevant ordinances, the penalty provisions for violations of the ordinances are provided in the bill and, evidently, cannot be modified by any city adopting the ordinance. The stated purpose of the proposed legislation is to eliminate the safety hazard and inconveniences resulting for persons sitting or lying down on public streets which can discourage people from patronizing establishments in commercial areas.
The New York Civil Liberties Union opposes this legislation because it impinges on the constitutional right of persons to use public sidewalks for lawful activities, and the bill, by its specific provisions, would be applied in a non-rational discriminatory manner. For example, the prohibition against sitting or lying would not apply in medical emergencies or to persons utilizing wheelchairs. This would prevent persons with chronic medical conditions who are not required to use wheelchairs from sitting on a folding chair to catch their breath or rest their feet. The bill would permit persons to sit or lie down on a sidewalk while listening to speakers or watching a demonstration or performance but only if the activity is being performed pursuant to a valid permit. There are many First Amendment activities which are permitted to be conducted on sidewalks without permits (e.g., political meetings and speeches) and it would be irrationally discriminatory to prevent such persons from sitting on a folding chair while listening to the constitutionally-protected activities. The bill would permit persons to sit while engaged in an artistic activity on sidewalks but would prevent other persons from sitting for non-artistic activities (such as hearing discussions on topics of public interest or playing sedentary games such as checkers).
In addition, the bill has uncomfortable similarities to "no loitering" legislation intended to keep "undesirables" off the street. "No loitering" statutes which do not require criminal activity to some degree are unconstitutional (People v. Berck, supra and cases cited therein). This bill, if passed, may very well encourage "sweeps" of homeless persons pursuing activities which are permitted under the First Amendment.
Finally, the bill violates constitutional due process by making it a Class B Misdemeanor for failure (1) to pay a civil penalty, (2) perform a community service ordered by the court or, (3) appear before a court or otherwise respond to a violation. This provision on its face, will discriminate against poor persons and other persons with valid reasons for not responding to violations on the scheduled due date.
Urination and Defecation
The New York Civil Liberties Union does not, in principle, oppose the proposed legislation regarding urination and defecation. It objects, however, to defining the violation in terms of what "could be observed by any member of the public" as vague, and suggest that "could be" be changed to "is." We also object, as a violation of constitutional due process, to treating failure to appear in answer to a notice of violation as a prior conviction thus subjecting a second violation to the penalty of First Degree Class B Misdemeanor even though there is no actual conviction for the first offense.
For the foregoing reasons, the NYCLU urges the defeat of this bill.