March 01, 2014
MCL 750.167 defines a “Disorderly Person”. Subsection (h) states:
(h) A person found begging in a public place.
An August 14, 2013 opinion of the United States Sixth Circuit Court of Appeals held that the above provision is unconstitutional. The case is Speet v. Schuette, 726 F.3d. 867 (2013). In Speet, two arrestees brought a facial challenge to the constitutionality, under the First and Fourteenth Amendments to the United States Constitution, of a Michigan Statute which criminalizes begging. The Court concluded that begging is a form of solicitation which is protected by the First Amendment. The Court further concluded that Michigan’s anti-begging statute was facially unconstitutional because it prohibits a substantial amount of solicitation, but allows other solicitation based on content.
In reaching its decision, the Court pointed out that the Supreme Court previously held that the First Amendment protects charitable solicitation performed by organizations. The Court then looked to several other Circuits to determine whether the First Amendment also protects the solicitation of alms when performed by an individual not affiliated with a group. The Court ultimately held that it does.
The Sixth Circuit agreed with Michigan’s Attorney General that there is a valid interest in preventing fraud and duress, since not all those who beg are homeless, nor do all those who beg use the funds they receive from begging to meet basic needs. However, the Court indicated that Michigan’s interest in preventing fraud and duress “can be better served by a statute that, instead of directly prohibiting begging, is more narrowly tailored to the specific conduct, such as fraud, that Michigan seeks to prohibit.”
In conclusion, the Court stated that Michigan may regulate begging. But it must do so with “due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political or social issues.” Schaumburg v Citizens for a Better Env’t, 100 S.Ct.826 (1980).
***Many local municipalities have enacted ordinances to prohibit begging or panhandling which are identical or very closely resemble the Michigan statute which has now been repealed. If your municipality has such an ordinance or has incorporated Michigan’s statute prohibiting begging, we recommend that you immediately undertake a review of the language and seek legal advice as to whether your ordinance should be repealed. We also recommend that you advise your law enforcement officials that Michigan’s anti-begging statute has been found unconstitutional and is not enforceable. This will help protect your municipality from civil litigation for issuing tickets or making arrests based upon an unconstitutional statute.***
Should you have any questions or wish to discuss this topic further, please do not hesitate to contact us at any of our offices throughout the state.
Garan Lucow Miller, P.C. has ten offices throughout the State of Michigan and in Indiana to serve all of your municipal needs:
Genesee County Office 1-800-875-3700
Grand Traverse Office 1-888-923-1611
Indiana Office 1-877-804-2801
Ingham County Office 1-888-910-0300
Kent County Office 1-800-494-6312
Oakland County Office 1-800-875-7600
St. Clair County Office 1-800-875-4400
Washtenaw County Office 1-800-878-5600
Wayne County Office 1-800-875-1530
Upper Peninsula Office 1-888-841-7772
*Please visit our website for more information regarding our offices, attorneys, practice areas and other helpful publications at www.garanlucow.com
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