The City of Dallas should be allowed to enforce an ordinance blocking people from standing or walking in certain roadway medians. That’s after a federal magistrate recommended denying an effort to temporarily block enforcement of the city law until the conclusion of a lawsuit challenging the ordinance’s constitutionality.
The federal First Amendment lawsuitwas filed on behalf of individuals who say the ban violates their constitutional right to express themselves and engage with the public.
They argue that the city’s ordinance amounts to an illegal ban on panhandling, which violates the rights of people to solicit and engage with drivers at busy intersections. They also assert that the ordinance limits protesters from being able to express their messages to passersby.
The City of Dallas says the ban is a matter of public safety, aimed at preventing pedestrians from being hit by cars and trucks. The city’s Vision Zero plancalls for an end to these types of fatalities.
U.S. Magistrate Judge Renee Harris Toliver sided with the city, writing that the city’s goal of keeping pedestrians safe “necessarily entails restricting pedestrian access to areas deemed to be unsafe,” and that similar ordinances in other cities have been upheld by federal courts as constitutional.
She determined the ordinance “leaves open a number of alternative areas where members of the public may engage in all manner of speech such as sidewalks, public parks, and medians wider than six feet,” and so it appears likely to pass constitutional muster.
Toliver’s recommendation now goes to U.S. District Court Judge Ada Brown, who will rule on the preliminary injunction. Regardless of her ruling on the preliminary injunction, there will be many more steps likely to play out over years before the merits of the case are fully decided.
Safety or speech?
The ordinance, passed in 2022, makes it crime to “stand or walk on a median that measures six feet or less, in areas where no median exists for roadways designated as divided roadways, or in an area designated as a clear zone.” People can be fined up to $500 for violating the ordinance. There are exceptions for people crossing the street and in other situations.
Lawyer Dustin Rynders from the nonprofit Texas Civil Rights Project called Toliver’s recommendation a setback, but noted that it is an early stage in the case. He said his team plans to file a response to Toliver’s recommendation, and is preparing to make the case during trial that the city used a public safety fig leaf to justify an illegal ban on panhandling.
“This came from [city] council based on animus towards people who survive by panhandling,” he fined up to $500said. “I believe the record we made of that at the hearing was very clear, and I'm disappointed that that it didn't win the day in this early phase…but we'll continue to make our arguments and build our case and fight for the rights of the people of Dallas.”
The City of Dallas declined to comment, citing the ongoing litigation.
Rynders said he was encouraged that Toliver agreed the plaintiffs have the right to bring the case. An attorney for the city said during an April hearing that no one had been given a ticket for violating the ordinance, and argued that none of the plaintiffs had proper standing to bring the lawsuit.
The plaintiffs include two people who earn money by panhandling, Alton Waggoner and Teri Heishman. University of Texas at Arlington professor Hanna Lebovitz, who works with people experiencing homelessness, and Kawana Menchaca, who helps organize protests for the DFW Alliance Against Racist and Political Repression, are also plaintiffs.
The First Amendment legal clinic at Southern Methodist University is also representing the plaintiffs.
The City of Dallas hired the law firm Carter Arnet.
Parsing data
Panhandling is considered constitutionally protected speech. Before passing the ordinance, city council members discussed banning panhandling, but were told by city attorneys that such a measure would not pass legal muster.
The plaintiffs argued that the council embraced the ban on standing in medians as a public safety measure primarily to block people from panhandling without banning the practice outright.
Rynders said Dallas certainly has a problem with fatal traffic deaths, the city's own data fails to support the idea that this ordinance will meaningfully improve public safety. That argument was given significant attention during the hearing over the preliminary injunction.
“When a city or county decides to infringe upon the speech rights of its residents, it's usually held to quite a high standard to prove the reasons that it's doing so, and speculative comments about the potential benefit of an ordinance that isn't based in data or research is not considered sufficient,” Rynders said. “And so that's why we disagree respectfully with the magistrate's recommendations.”
Toliver rejected that argument in her recommendation.
“The fact that the data the City relies on was perhaps not as specific as Plaintiffs would have liked does not lead to a different result,” she wrote.
Rynders pointed out that Toliver had not referenced written testimony from a transportation safety expert who found the city’s ordinance didn’t line up with the city’s own traffic safety data. That expert, University of California-Berkeley epidemiologist David Ragland, was too sick to testify at the hearing and has since died, Rynders said.
Toliver did cite spoken testimony from the city’s transportation director.
This is an area likely to get even more attention as the case moves forward.
It’s unclear when Brown is expected to rule on the preliminary injunction, and no further dates for the case have been set.
Got a tip? Christopher Connelly is KERA's One Crisis Away Reporter, exploring life on the financial edge. Email Christopher atcconnelly@kera.org.You can follow Christopher on Twitter @hithisischris.
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