Judge Says Dallas Should Be Allowed to Ban Standing on Medians

A federal judge has suggested that Dallas can enforce an ordinance that bans people from standing or walking on medians less than 6 feet wide. Several people sued the city over the restriction, claiming it was a violation of their First Amendment right to free speech and was really aimed at panhandling.

Two homeless individuals, a community organizer and a University of Texas at Arlington assistant professor are all plaintiffs in the suit. They went to federal court in April asking U.S. Magistrate Judge Renee Harris Toliver to halt enforcement of the ordinance until there was a ruling on its constitutionality.

On Thursday, Tolver recommended allowing the city to move forward with enforcement because she believes the ordinance is constitutional, according to The Dallas Morning News. She argues that the ordinance is too narrowly tailored to be a First Amendment violation. Because there are alternative areas open to people, such as sidewalks, public parks and medians wider than 6 feet, Toliver wrote in her recommendation, “The court finds that the ordinance thereby passes constitutional muster.”

The recommendation will now go to the judge over the case, U.S. District Judge Ada Brown, to make a final determination on whether to halt the ordinance until the case is resolved.

The city has claimed that the edict is a public safety measure meant to protect pedestrians. However, in some discussion about the ordinance before it was passed last October, it was suggested as a means to deter panhandlers. There are also some reasons to believe the homeless may also be a target. The U.S. Supreme Court has ruled that panhandling is considered protected speech.

Last year, Dallas police Chief Eddie Garcia said his officers would use discretion when enforcing the ordinance, and the interim city marshal said at the time that officers wouldn’t be patrolling medians. Instead, the marshals would likely enforce the ordinance when helping the City Homeless Solutions and Crisis Management team provide services to the homeless. 

“The court finds that the ordinance thereby passes constitutional muster.” – U.S. Magistrate Judge Renee Harris Toliver

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Alton Waggoner and Teri Heishman, the two homeless people named in the suit, say they stand on medians narrower than 6 feet to panhandle. Waggoner said at the time the lawsuit was filed that he lives in constant fear of police harassment and enforcement of the median ordinance.

Kawana Scott, a community organizer and chair of the DFW Alliance Against Racist and Political Repression who is also a plaintiff, claims the ordinance could interfere with her activism work in Dallas. This is because that work sometimes involves organizing protests where people may stand or walk on medians narrower than 6 feet.

UTA assistant professor Hannah Lebovits is another plaintiff in the suit. She claims her research on homelessness brings her to places that would be affected by the ordinance. The recent recommendation by Toliver hasn’t deterred Lebovits’ confidence in the suit. “I am confident that we will continue with this case and that we will show that the intent is to attack First Amendment speech rights,” Lebovits said. “I do believe that when we have the opportunity to go further into this, that will become clear as it certainly was to all of us.”

Dustin Rynders, director of Texas Civil Rights Project, the organization that filed the suit, said the group is disappointed in the recommendation and plans to file objections this week. He said that at hearings on the case, the city informed the judge that it had yet to issue any citations under the ordinance. Citations could lead to fines of up to $500. Rynders said he wasn’t sure whether the city had started enforcing the ordinance since the hearings or if it planned to after this most recent recommendation from Toliver.

Next, the district judge will review the recommendation and issue an order on it. From there, the case will move on to discovery, when evidence will be produced. “These cases can take years to litigate, but we remain committed to fighting for our clients as long as it takes,” Rynders said. “We believe justice will ultimately prevail.”

He added: “While the case goes on, the city of Dallas could always decide to invest in real solutions to these human problems. After all, it doesn't take a court decision to understand that fining people so poor they panhandle is senseless, cruel and a waste of city resources.”