good morning in may please the court my name is jennifer merritt i'm a senior assistant attorney general with arkansas attorney general leslie rutledge and i represent colonel bill bryant who is the director of the arkansas state police and the appellant in this matter i reserve three minutes for rebuttal in this case the district court entered a broad statewide eliminating injunction philip prohibiting the arkansas state police from enforcing a narrowly tailored statute that prohibits loitering dismiss this case for lack of standing the p r should also be vacated because the plaintiffs failed to make a strong rigorous showing of widely heard of success on the merits this statute does serve a compelling governmental interest and public safety and is directed to conduct it's not prescribed by any other statute and a minimum the court should narrow the scope of the injunction to only these two plaintiffs who did not bring the suit in a class capacity and to only those pacific sections of the statute that this court finds they have standing to challenge so i want to cut to the chase and i know you have other arguments you want to make but the the problem i'm having what the states are you meant least on the merits  is why focus on begging what is the compelling interest why is that why as a state if they're worried about traffic one of the products of the statute deals with traffic they're worried about traffic problems or they're willing about already about people getting harassed going into a limited witnesses but the record that was developed below does show that the state has some compelling public safety and traffic interests after leaving conceded that there is safety interest are compelling governmental interest in that and page tentative pending the witnesses for the state did explain how aggressive or dangerous panhandling presented a unique but yet pervasive problem in arkansas where as other forms of speech political speech or commercial panhandlers specifically who walk into traffic stop cars to ask for money talk about the fact that that kind of behavior from people asking for charity or get present you know say in front of a grocery store or somebody getting getting signatures to run for office or things like that there's evidence that banking in particular is a is a very pervasive problem in arkansas that officer henman didn't the witnesses for the state talked about how panhandling was a pervasive problem in certain areas and i think when he said certain areas you was referring to exit ramps on and off ramps interstate highways things of that nature i don't know if he went so far as t state but that was i think a reasonable inference was the evidence was there evidence outside of the traffic contacts that was given further that justified the large justified the problem in other words was there or was there any evidence that for example people standing in front of grocery stores or drug stores  put on any evidence of any other problem and in fact their own client i believe it was mr dill that testified that he had never seen any political little folks out there standing in times it wasn't it's not the same scope of the problem but before the court can even get to this issue on the merits of course the threshold inquiry is standing and so you know before we can get there the court has to first decide that these particular plaintiffs who again sued only on their own behalf in their individual capacities have standing to bring this l and the court generally frowns upon and facial pre enforcement stand challenges to criminal statutes on first amendment overbred grounds this court talked about in the and i quoted a u s supreme court case on that they're especially to be discouraging that because a limited reason taishan of evidence and the risk that the court is going to be relaxing article three standing requirements which are a minimum  case law to the effect that if speech is significantly chilled than the standing is is present judgment yes it is recorded conclude that the statute chilling effect is what conferred standing in may have standing to sue even absent under the specific threat of enforcement the apple leaves peaceful panhandling in this case is not clearly prescribed by any statute quite to the contrary as evidenced by the lack of any enforcement of this statute against peaceful panhandlers their begging activity does falls outside of this go but i have rogers testified that he had quit panhandling and had quit big game because of the statute and because of his fear that he would be arrested well  i i guess i just understand why that doesn't we said to him create standard mr rogers and has been a long time member he lives in the hot springs area he had been previously arrested and charge and even find under an old statute the old arkansas law prohibited all forms of begging in all places under all circumstances and despite being cited in charge five times mr rogers continued to bag so he had no subjective chilling effect on his banking activity even when he was operating under a much broader statute this statute it's well you're just saying then that what you're saying is the just a course should not believed them there i mean that runnable i there is no credible threat and in fact the courts have made clear that in terms of fanning past enforcement action is not enough the fact that allegedly injurious activity took place in the past does nothing to convey standing to seek perspective injunctive really against the enforcement against future constitutional violations that was discussed in the harman versus city of kansas city case that was a first amendment case there must be a continuing present adverse effect from in force and activity and mr rogers testified that he still continues today even under the new statute he lives outside right outside of the city limits in hot springs he testified that he does out in the country he also testified that even under this new statute he has gone out he goes out regularly weekly to beg and has made it within the city of hot springs so he has been to many of jake's differently right i mean he begs he says he spends more time out in the country doesn't beg in the city limits quite as much he also says when there's a threat of police being nearby he drops a sign or hides a sign and just so he doesn't get caught why i mean if he's changing his behavior presumably that makes his begging last a fact of if people don't see that he's begging then presumably he's not getting any money so why i mean combined with the fact that he's not paying as much why does a i guess i don't get the state's argument help me out here sure it has to have a state the statute has to have a strong substantial  objectively reasonable chill not a subjective fear of enforcement when it is peaceful begging activity doesn't even fall under the scope of this particular statute it's a reasonable because he was arrested in the past i mean i realize that was a different statute but if i was arrested in the past i'm fearing being arrested in the future i'm changing my behavior i don't know what else i need for standing i don't know what i mean this new statute applies to only three very limited types of aggressive or dangerous panhandling in the manner if they beg in a way that's likely to cause alarm to another person or if they what does that mean what if i what if i just don't like to see beggars does that cause alarm to me if you if you just don't like bangers you know is how do i know if i'm causing someone else to be alarmed right well this statute exists doesn't exist alone right i mean there's a whole body of law in arkansas criminal law that regulates similar conduct there is a criminal harassment statute that has a different mens rea requirement but it does define what harassing is what causes large means and so while your honor might be kind of hinting to the fact that the statute itself does not define what cause a lar means or what it means to harass the courts can and do look to additional sources such as dictionary definitions judicial opinions or related statutory definitions when considering whether a statute is void for vagueness and in this case we've had i don't want to spend my time that we have discussed in the brief what the statutory a few of the different dictionary definitions are we also have the harassment statute in arkansas code and hated by seventy one to a way that outlines a void for vagueness the court lower court below did not reach that issue and so the court certainly henri mand could reach that issue but there is evidence in the work record from which this court should conclude that the statute is not void for vagueness and in versus peterson the second seventh circuit excuse me held that a similar ordinance was not baked in defining aggressive panhandling that's at two twenty five thirty eight ninety nine i'm getting close to getting into my rebuttal time i do want to spend a moment if i could talking about the over brett of this particular injunction the district court entered a broad statewide injunction and despite the fact that this is not a class action and this is really becoming a hot button issue in federal courts across the country in terms of overbroad injunctions the judicial power of the courts of course are limited to cases or controversies injunctive relief has to be appropriately tailored to preserving the rights of the plaintiffs that are before the court because the purpose is to maintain the status quo during the pendency of the case and pending any final determination on whether or not the statute is actually unconstitutional or not also since the statute in question is a state wide statute our judge only involves two individual plaintiffs and we've got the where the courts have explained that broad injunctions are not appropriate in the absence of a class action that's why congress set up a class action procedure to pursue those kinds of claims the plaintiffs here chose not to file this as a class action and so the injunction cannot be any more burdensome to the defendant than is necessary to provide complete relief to these plaintiffs this injunction is overbroad it applies to everyone in arkansas and in the district court didn't properly exercise its discretion in that regard because it didn't even attempt to analyze or explain why a broad injunction was necessary or appropriate at this stage of the proceedings the court to said i decline to limit the injunction and so we contend that that is not an appropriate made please the court counsel my name is katherine stevens and i'm here today representing the appellate honor to be here today to actually my first time arguing in appellate court so that if you for the opportunity the court should affirm the district junction our enforcement of this unconstitutional statute first focus on standing the pounds have focused on the injury in fact requirements i will as well with constitutional facial challenges there are special rules  standing plaintiffs can show an enduring fact by showing that the very existence of the statute itself has had a chilling effect on their first amendment protected activity that chilling f x passes muster if they can show that they have an objective lee reasonable fear of prosecution under the statute and that's clearly the case here a focus on the chilling effect first mr doyle back has regularly bagged in arkansas for decades after the passage of this statute his completely  begging either are they just avoided holding signs and traffic medians and they had standing in that case so both have been shelved their fear of enforcement is reasonable here united commercial and food workers has stated that past experience is relevant to determining whether their fear is reasonable they have both and constantly cited tried with the rats arrested in one case warned and run off by cops under prior versions of the statute so of course that past experience is relevant to showing that they have a fear of being prosecuted under just the latest version of the statue they also both  based on their activity so clearly it's reasonable that they fear being seen as a traffic hazard or impediment what is a do to the merits though i mean they're essential what you heard me ask opposing counsel about well why is panhandling and begging present a special problem and sort of by proving standing here you may have made their case for them which is to say that the problems with traffic maybe unique to panhandling and that your client saying that traffic slows down may in fact show what the problem is what's your response to that well if we get into the merits of the case causing traffic to slow down when there's a ton of other laws on the books that are already address issues there is solicitation on a highway there is impeding traffic there's a minimum speed regulation so why isn't better important of those laws and not to already address any hypothetical traffic safety issue one i would say so what i mean because your clients have proven or at least in establishing standard it's one of the ironies i think of this case that while you baby may present problem that may require a special set of rules that specifically focus on that problem  proven slightly differently than all of those other laws well i cannot remember the name of the case the physically right now but i can supplement it to the court but facial challenges are unique where even at this specific activity that what they're doing might not be protected under a lot that big still can represent other parties if they have to meet the standing requirement so the fact that sometimes they go into traffic to approach a vehicle you know that might be a traffic safety issue that doesn't mean that they don't have standing here to bring this case and show that why did this statue in particular the government have the burden to show that they need to show traffic report accident report college and any type  of shows that this is actually a widespread issue one that's why i'm struggling with that maybe you can help me out with this i'm struggling with the justifications here i mean there needs to be i understand luck holding up traffic and causing accidents the state has a compelling interest no question about it but what i'm trying to do is make the link between beijing and pm handling and these accidents and i'm not sure that the government has done that in the government's response is well we had all these officers come in and in addition to your clients you talked about the problems they're creating and that's that's good nuff what's what's your client's response to that well first of all none of those testimonies are relevant because none of those witnesses testified before the legislature when they were actually considering passing a statute and the went to state that yeah sometimes when i'm you know specifically in little rock one of them to little rock police officer there is this issue well that does not that doesn't read anywhere close to meeting their burden what to think what if they came in with cisco evidence that showed last year in arkansas there were thousand car accidents and a thousand deaths caused by panhandling that they could be linked to pin the only people rear ended each other whatever and on the street would that be enough that might be enough to show compelling government interest that that was present in the legislature at that time listen we have a really serious issue here but they also need to show that it's narrowly tailored which they didn't even address in their brief again why aren't current such as that have already in fact already isn't better enforcement of those that you don't abridge someone's first amendment right by specifically targeting and handlers why aren't those enough they haven't shown any evidence that listen we've been trying to enforce obstruction of highway solicitation and all of these things and it's just not working and so we really need to make this this touches specific to baking they haven't provided any of the evidence here and they need to show that this statute is the least restrictive means in other words that they've tried less restrictive ways of dealing with these issues and it's failed is there any evidence in the record of other activity there cause of problems you in other words  any evidence that people holding political signs impede traffic or any evidence and in my hometown we have one particular area they have people dress up in crazy costumes and advertise tax preparation services a mattress sales and everything else under the sun as you go by and on a busy street is there any evidence of what that kind of conduct there had there was a lot of evidence that that was some discussion in the testimony but again the burden is on them to show there wasn't any evidence that there's any issues that bedding either so i'm just because we didn't get into the kind of it really was the evidence a big gain was that your own clients say when they walk out in the street to get the money is i understand your client testimony was we don't stand in the street we don't impede traffic except when somebody stops to offer us money but then when we get them when we step out to get the money that by definition there they're stopping to there may be impeding traffic i mean there's  right right that that's definitely not enough and her strict scrutiny burden to say that they should apply this ban to every single public street sidewalk right away parking lot i cannot think of where this doesn't apply so  if there are some issues that maybe some busy intersection again they have to show that through accident reports and you can see that in other cases where the government has provided so much more evidence and still failed to meet their burden there was one where they had had phil move on to the next point i'll turn it simply it's void for vagueness because i don't think it gives fair notice to someone of ordinary intelligence that their conduct it's criminal especially in the context of baking it's a really blurry line between can cause someone alarm or make them feel threatened in a way that would be criminal under the statute versus uncomfortable or offended or even kind of course into giving someone money people are alarmed by but shouldn't there be at least an assumption that entirely subjective so that a qualifier here well so i think that when it comes to alarm and i'm really unclear they don't really give a lot of follow up definitions or specific instances yet i just don't think that they give a not clarity in the statute itself which is again it's a heightened scrutiny when it involves three abridging of first amendment right they need to clarify exactly what it means when someone is likely to cause alarm because i think there's confusion about that here and additionally there are creating a hazard traffic hazard or impediment that's that's fairly concrete that's not well they're arguing that there's no mens rea our apartment for that so i actually don't think it's pretty concrete because under stall they said that how is someone supposed to know what they're doing is going to cause traffic to slow down or stop enough where it constitutes a crime it's completely dependent on the reaction of third parties and therefore we would think that the boys yeah but if you walk out into the middle of the street with the line of cars i mean you traffic hazard i think that's true so finally i just want to go to the argument the injunction the breadth of the injection the district court did not abuse its discretion in statute again it abuse of discretion standard and the case that is exactly on point here is planet aid in that case the district court found that the plaintiffs are likely to succeed on the merits on their first amendment facial challenge they bargain for some it and the city ordinance argument is slightly different as i understand it that you allow over breath challenges but we decide cases are controversy and the case or controversy is these two people these two individuals you're representing want to panhandle they don't want to be restricted by the statute so you decide that particular case you don't decide what to panhandlers clear across the state in arkansas might have you know it with they have a problem with the statute they may not even have standing who knows and so you don't enjoy that state why you just you just enter an injunction you solve the problem as between those two parties or three parties in this particular case what's your response to that well this is a special circumstance because it is a facial challenge so it's not an attack on the statute in a particular application it's an attack on the statute itself on its face and so i've been in age showed and all the cases involving facial challenges well there are different  proper remedy for that are an unfortunate unconstitutional on its face doesn't make a difference is this is a preliminary injunction i could see your argument if it was a permanent injunction and all the evidence had been taken and the district court made a decision but right now  district court doesn't even know for sure it's likely to succeed on the merits it's making a guess its best guess as to what might happen and you're asking you're basically enjoining and the enforcement of a criminal statute for the in style or state based on an educated injunction it limited it to a statewide injunction so clearly pathos of port said a statewide coleman area injunction is sometimes necessary to achieve relief and you'd argue that that's the case here so in conclusion we asked that you judgment quick point injury for the purpose of standing is an objective test it is not a subjective test the court should not look at whether these plaintiffs were subjectively chilled in their conduct what's at issue here is whether there's an objective  reasonable chill there was no credible threat of in force and in this case troopers are the arkansas state police testified at the a f p s enforcement activity has been limited to one single circumstance it was incredibly dangerous when a person w standing on the side of interstate four thirty in little rock and flagging and waving down traffic and physically impeding traffic by stepping into the lane and that was a very extremely dangerous situation and that is the sole time that the a cited anyone for violation of this particular satchel i want to ask you before your time expires about stall you heard opposing counsel mention that stall being the case dealing with impeding traffic why isn't it controlling here why does it make that third ground shoulder because he's not stepping into traffic the panhandler with the sign cannot control the driver of the vehicle that could be a law enforcement officer and cite the driver of the vehicle or driver of the vehicle slows or stops or impedes traffic in order to hand money to panhandlers it's not the panhandlers activity so how does that distinguish it from stall but you just said that's what i'm trying to get at well the district court here has to base its determination based on the evidence that was presented by the parties and in this case the testimony was that the a s c does not enforce this statute and could not enforce this statute against a panhandler who's holding a sign on the road the proper target of that law enforcement activity would be the driver of the vehicle not the panhandler not was put on in this case so that's what the court is limited to looking at it was that what that officer to that what the officers testified to i understand officer carter said any distraction to takes of a driver's eyes off the road is an impediment to traffic including the panhandle or who is holding a sign and doing what you said they would never enforce he says that is an impediment he testified as i recall the testimony judgment lawyer was that a panhandler actually impeded traffic that they ever stepped in the lane and created a traffic hazard or that they've begun a harassing way or in a way that's likely to cause harm so in the event that any of the statute perhaps if the court were to find that it's over as merit her wishes to think both counsel for the are which you provided to the court this morning and for the briefing which you submitted in this case we will take it under advisement rinder decisions probably as possible