Loper v. New York City Police Department
999 F.2d 699 (1993)
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Rule of Law:
Peaceful begging in traditional public forums (streets and parks) is a form of expressive conduct protected by the First Amendment, and a state statute imposing a total prohibition on such activity is an unconstitutional content-based restriction that is not narrowly tailored to serve a compelling state interest.
Facts:
- Jennifer Loper and William Kaye are 'needy persons' who beg on public streets or in public parks of New York City.
- A 'needy person' is defined as someone who, due to poverty, cannot afford necessities like food, shelter, clothing, medical care, and transportation.
- New York Penal Law § 240.35(1) makes a person guilty of loitering when they "Loiter[], remain[] or wander[] about in a public place for the purpose of begging."
- The New York City Police Department (City Police) considers this statute an essential tool to address perceived evils associated with begging, such as beggars congregating, becoming aggressive, intimidating residents, harming local businesses, blocking sidewalks, following people, threatening those who do not give money, and making fraudulent representations.
- Very few arrests or summonses are made for begging alone; officers frequently use the statute as authority to order beggars to 'move on.'
- The City Police theorize that peaceful begging leads to increased aggressiveness and more serious crimes, ultimately causing the 'ruination of a neighborhood.'
- Other New York statutes already exist to proscribe specific conduct such as harassment, disorderly conduct, fraudulent accosting, and menacing that may sometimes accompany aggressive solicitations.
Procedural Posture:
- Plaintiffs Jennifer Loper and William Kaye, on behalf of themselves and all others similarly situated, sued The New York City Police Department and Commissioner Lee F. Brown.
- The United States District Court for the Southern District of New York (Sweet, J.) certified a plaintiff class consisting of all "needy persons who live in the State of New York, who beg on the public streets or in the public parks of New York City."
- The District Court entered summary judgment in favor of the Plaintiffs, declaring New York Penal Law § 240.35(1) unconstitutional on First Amendment grounds and enjoining the City Police from enforcing it.
- Defendants, The New York City Police Department and Commissioner Lee F. Brown, appealed this summary judgment.
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Issue:
Does a state statute prohibiting loitering in a public place for the purpose of begging violate the First Amendment's protection of free speech when applied to peaceful begging in traditional public forums?
Opinions:
Majority - Miner, Circuit Judge
Yes, a state statute prohibiting loitering in a public place for the purpose of begging violates the First Amendment's protection of free speech when applied to peaceful begging in traditional public forums. The court found that begging constitutes expressive conduct or communicative activity, conveying a message of need and soliciting charity, similar to charitable solicitations. Since this activity occurs in traditional public forums (streets and parks), which are subject to the highest level of First Amendment scrutiny, any regulation must either be a narrowly tailored content-based exclusion serving a compelling state interest, or a content-neutral time, place, and manner restriction narrowly tailored to a significant government interest and leaving open ample alternative channels of communication. The court determined that New York Penal Law § 240.35(1) is a total prohibition on begging and is therefore a content-based restriction. It concluded that no compelling state interest is served by entirely preventing peaceful begging. Even if preventing the harms sometimes associated with begging (fraud, intimidation) were a compelling interest, a total prohibition is not narrowly tailored. The statute also fails as a time, place, or manner restriction because it is not content-neutral, not narrowly tailored, and does not leave open alternative channels of communication for beggars to convey their indigence. Furthermore, the court noted that the state permits solicitations by registered charitable organizations, implying no significant governmental interest is served by prohibiting individuals from soliciting for themselves, especially when other statutes already address aggressive or harmful conduct.
Analysis:
This case significantly reinforces the First Amendment's protection of free speech, extending it to peaceful begging as a form of expressive conduct in traditional public forums. It establishes a high bar for government attempts to regulate or prohibit such activity, requiring laws to be narrowly tailored to address specific problematic conduct rather than broadly banning the act of begging itself. The decision distinguishes begging in open public spaces from that in non-public or limited public forums, where different levels of scrutiny apply, and underscores the availability of existing statutes to address aggressive or fraudulent solicitation without infringing upon protected speech.
