Case 1:11-cv-00972-RJJ Doc #25 Filed 08/24/12 Page 1 of 16 Page ID#349

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES SPEET and ERNEST SIMS,

Plaintiffs,
v.
BILL SCHUETTE, Attorney General for the State of Michigan, in his official capacity; CITY OF GRAND RAPIDS; KEVIN BELK, Chief of Police of the Grand Rapids Police Department, in his official capacity; and OFFICER GREGORY BAUER, in his individual capacity,

CASE NO. 1:11-CV-972 HON. ROBERT J. JONKER

Defendants. __________________________________/

OPINION AND ORDER

In this case, Plaintiffs James Speet and Ernest Sims challenge a Michigan statute, MICH.

COMP. L. § 750.167(1)(h), that makes it a crime to beg in a public place. They assert that the statute,

both on its face and as applied to them, violates the First Amendment and the Equal Protection

Clause of the Fourteenth Amendment of the Constitution. They seek declaratory and injunctive

relief. They also seek damages against individual police officers who enforced the statute, and

against the City of Grand Rapids.

Before the Court are cross-motions for partial summary judgment on Plaintiffs’ claims that

MICH. COMP. L. § 750.167(1)(h) is unconstitutional on its face. The parties agree that there is no

genuine issue of material fact regarding the facial challenge and that judgment as a matter of law is

appropriate. The Court has heard oral argument on the cross-motions, thoroughly reviewed the

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record, and carefully considered the applicable law. The cross-motions for partial summary judgment are ready for decision.
Background Mr. Speet is an adult resident of Grand Rapids, Michigan and has been homeless for approximately two years. (Verified Compl., docket # 1, at ¶ 21.) He receives food stamps, and he gleans cash by collecting and redeeming bottles, cans, and scrap metal. (Id. at ¶ 22.) He has no other sources of income. He occasionally seeks assistance from others by holding up a sign asking for work or help. (Id. at ¶¶ 22-23.) When seeking work or help, Mr. Speet holds up a sign but does not approach passersby directly. (Id. at ¶ 24.) Mr. Speet sees himself as informing people about his situation and his need for help by holding up his sign. (Id. at ¶ 25.) Some of his signs have read, for example, “Cold and Hungry, God Bless,” and “Need Job, God Bless.” (Id. at ¶¶ 30, 40.) He has obtained odd jobs, such as mowing lawns, and painting a garage, from individuals seeing his sign. (Id. at ¶ 27.) Mr. Speet was arrested and prosecuted in Grand Rapids twice for begging in 2011. (Id. at ¶ 29.) On one of those occasions, he was jailed. (Id. at ¶ 43.) He has also been arrested and prosecuted for begging elsewhere in Michigan. (Id. at ¶ 44.) Mr. Sims, an adult resident of Grand Rapids, is an Air Force veteran. (Id. at ¶ 52.) He has a disability and receives approximately $260 per month in state disability insurance. (Id.) He also receives food stamps. (Id.) Mr. Sims attends Grand Rapids Community College, in pursuit of a career in electronics. (Id. at ¶ 53.) He occasionally begs for money, typically by asking individuals if they can spare change for a veteran, and moving on if the individual declines. (Id. at ¶¶ 54-55.) Mr. Sims was prosecuted for begging several times in Grand Rapids in 2005. (Id. at 56.) On July 4, 2011, Mr. Sims was arrested for begging in Grand Rapids after he asked a person on the street
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whether that person could spare some change. (Id. at ¶¶ 59-60.) He ultimately pled guilty to a panhandling charge and was fined $100.
The statute under which Mr. Speet and Mr. Sims were arrested, prosecuted, and punished provides:
(1) A person is a disorderly person if the person is any of the following: .... (h) a person found begging in a public place. MICH. COMP. L. § 750.167(1)(h). A person convicted under section 750.167(1)(h) is “guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.” MICH. COMP. L. § 750.168(1). The State of Michigan and the City of Grand Rapids (collectively, the “government”) assert that Michigan’s statutory ban on public begging is constitutional on its face, and they emphasize that the statute serves several desirable purposes. According to the government, the ban helps businesses, because the presence of people begging in or near business establishments may deter others from patronizing those businesses. The government also emphasizes that the ban on begging helps prevent fraud, because beggars may not use the contributions for the purposes donors intend. Indeed, the government observes, some beggars may use such contributions for alcohol and illegal drugs. The government also points out that begging can be intimidating or annoying to others and that the ban helps protect the public from harassment. Mr. Speet and Mr. Sims contend that the statute is facially unconstitutional under the First Amendment, “because it is a content-based restriction on protected speech in a public forum that is not narrowly tailored to serve a compelling state interest, and because it prohibits a substantial
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amount of protected speech,” and also facially unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, “because it prohibits individuals who wish to beg from engaging in protected First Amendment activity in public places, while allowing other persons to engage in First Amendment Activity in public places.” (Id. at ¶¶ 123, 129.)
Legal Analysis The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Through the Fourteenth Amendment, this prohibition applies to state and local governments as well. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 2005). The Fourteenth Amendment also forbids state and local governments from denying to any person within their jurisdictions the equal protection of the laws. “Only a statute that is substantially overbroad may be invalidated on its face.” City of Houston v. Hill, 482 U.S. 451, 458 (1987) (citations omitted). Whether a statute is substantially overbroad depends primarily upon whether it reaches a substantial amount of protected speech or conduct. Id. (citing Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). That it is possible to conceive an impermissible application, without more, does not render a statute facially overbroad. However, statutes “that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they have legitimate application.” Id. Criminal statutes “must be scrutinized with particular care.” Id. at 459. I. First Amendment To resolve Plaintiffs’ facial challenge to the statute under the First Amendment, the Court must first determine whether begging includes speech or expressive conduct protected under the First Amendment. Bays v. City of Fairborn, 668 F.3d 814, 820 (6th Cir. 2012). If begging is protected
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speech or expressive conduct, First Amendment protections are triggered, and the Court must determine whether the government has justified its ban on begging. Miller v. City of Cincinnati, 622 F.3d 524, 533 (6th Cir. 2010). In making that determination, the Court considers the scope of the restriction, examining particularly whether the restriction is content-specific and to what forums the restriction applies. Id. In general, the more a content-based speech restriction applies to traditional public forums, as opposed to more limited venues, the stricter the scrutiny, and the less likely the restriction will pass muster. Id.
A. Begging Includes Protected Speech and Expressive Conduct. Begging plainly conveys a message: it communicates, whether verbally or non-verbally, a request for financial or material assistance. A beggar’s message is analogous to other charitable solicitation: in both situations, the speaker is soliciting financial assistance, the beggar for him or herself, and the charitable fundraiser for a third party. Courts have held repeatedly that charitable solicitations are a form of protected speech. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633 (1980) (citing Cantwell v. Connecticut, 310 U.S. 296 (1940); Thomas v. Collins, 323 U.S. 516 (1945); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977). It is well-established that “[c]haritable appeals for funds, on the street or door to door, involve a variety of speech interests – communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes – that are within the protection of the First Amendment.” Id. The same rationale logically applies to begging, which involves similar speech interests. As the Second Circuit observes, [w]hile . . . begging does not always involve the transmission of a particularized social or political message . . . it usually involves some communication of that nature. Begging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation. Even without particularized speech,
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however, the presence of . . . [a] person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance. We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not a significant one for First Amendment purposes. Loper v. New York City Police Department, 999 F.2d 699, 704 (2d Cir. 1993). See also Smith v. City of Ft. Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999) (“[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection.”). For First Amendment purposes, begging and charitable solicitations are both entitled to protection. Begging may, of course, take the form of expressive conduct rather than verbal speech. When a beggar wordlessly extends a container for donations, for example, the conduct expresses the message of indigence and request for assistance. The First Amendment protects expressive conduct as well as speech. Though the “government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word . . . [i]t may not proscribe particular conduct because it has expressive elements.” Texas v. Johnson, 491 U.S. 397, 407 (1989). “The First Amendment generally prevents government from proscribing speech . . . or even expressive conduct . . . because of disapproval of the ideas expressed.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (citations omitted). Regardless of whether begging is characterized as speech, expressive conduct, or a combination of the two, it is entitled to protection under the First Amendment. The government points out that begging can include conduct elements, such as fraudulent statements; confrontational interaction; trespassing on private property; or other disagreeable behavior that has the potential to interfere with businesses serving the public. This is, of course, true of most speech, including both begging and other charitable solicitation. Here, the Michigan statute
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sweeps the speech, expression, and conduct elements into a single category of “begging.” Because speech and expression are in the mix, the protections of the First Amendment apply.
B. The Government’s Asserted Basis for the Ban of Begging Does not Pass Constitutional Muster. 1. A Public Forum Is Involved.
The nature of the forum of the speech or expressive conduct at issue affects the degree of protection the speech or expressive conduct receives. Miller, 622 F.3d at 533. “In places which by long tradition or governmental fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed.” Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Such traditional public forums include, for example, “streets and parks which ‘have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” Id. (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). See also Parks v. City of Columbus, 395 F.3d 643, 648 (6th Cir. 2005) (“It has been well-established by the United States Supreme Court and upheld by the Circuits that public streets generally constitute traditional public fora.”) (citing Frisby v. Schultz, 487 U.S. 474, 481 (1988) (noting that “public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum”)); United States v. Grace, 461 U.S. 171, 177 (1983) (stating that “‘public places’ historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be ‘public forums’”); United Church of Christ v. Gateway Econ. Dev. Corp. of Greater Cleveland, Inc., 383 F.3d 449, 452 (6th Cir. 2004) (restating Supreme Court rule that a street is a public forum); Chabad of S. Oh. & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 434 (6th Cir. 2004) (same); Dean v. Byerly, 354 F.3d 540, 550 (6th Cir.
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2004) (same); United Food & Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738, 746 (6th Cir. 2004) (same); Kincaid v. Gibson, 236 F.3d 342, 248 (6th Cir. 2001) (same)). The Michigan statute prohibits “begging in a public place.” The parties do not dispute, nor could they, that the statute, which applies to all public places, involves traditional public forums.
2. The Statute Is Content-Specific, and Subject to Strict Scrutiny. The statute restricts protected speech and expressive conduct in traditional public forums. The next question is whether the statute is content-specific or content-neutral. If content-specific, strict scrutiny applies; if content-neutral, the statute is evaluated under a more lenient standard. Perry, 460 U.S. at 45. The Court concludes that Michigan’s prohibition on begging is a contentspecific restriction. “Government regulations of speech are content-neutral if they are ‘justified without reference to the content or viewpoint of the regulated speech.’” Saieg v. City of Dearborn, 641 F.3d 727, 735 (6th Cir. 2011) (quoting Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, __ U.S. __, 130 S. Ct. 2971, 2994 (2010)). Conversely, “[a]s a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of their ideas or views expressed are content based.” Turner Broadcasting System, Inc., 512 U.S. at 643 (citations omitted). Under this test, the Michigan statute is content-based, because it distinguishes between types of speech -- charitable solicitations vs. other types of advocacy; and further distinguishes charitable solicitations based on the charity involved -- the speaker himself or herself vs. a third party that may or may not be related to the speaker. The statute criminalizes only solicitations by a person seeking charity for himself or herself. It permits other non-charitable solicitations, as well as charitable solicitations for third parties even though they too may be associated with fraud,
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unpleasant personal accosting, or interference with customer traffic and business in the area. As in City of Houston, “the enforceable portion of the [statute] deals not with core criminal conduct, but with speech.” City of Houston, 482 U.S. at 460 (finding unconstitutionally over-broad a city ordinance making it unlawful to interrupt in any manner, including verbally, a police officer in the execution of his or her duty). The statute simply cannot be characterized as content-neutral.
Michigan’s ban on begging is a content-based restriction on protected speech that applies to traditional public forums; therefore, the strictest scrutiny applies. The government must demonstrate that the statute is narrowly tailored to achieve a compelling state interest. United States v. Grace, 461 U.S. 171, 177 (1983) (holding that a law imposing “an absolute prohibition on a particular type of expression” in a traditional public forum “will be upheld only if narrowly drawn to accomplish a compelling governmental interest.”). The government has not met that burden here. The government describes its interest in the statute as linked to the government’s “important regulatory interest in safety, regulating the flow of pedestrian and vehicular traffic, protecting businesses and tourism, and protecting against the risk of duress and fraud associated with the solicitation of funds.” (docket # 11 at 14.) Even if these concerns amount to compelling state interests, the Court is not persuaded that the total prohibition on begging in public places is narrowly tailored to achieve these ends. Less restrictive means of furthering these interests exist. Nothing prohibits the government from regulating directly the conduct the government identifies as problematic. The government can and does prohibit fraud, assault, and trespass. But what the government cannot do without violating the First Amendment is categorically prohibit the speech and expressive elements that may sometimes be associated with the harmful conduct; it must protect the speech and expression, and focus narrowly and directly on the conduct it seeks to prohibit. That the statute does not restrict
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charitable solicitation, which involves the same kinds of risks the government associates with begging, further calls into question the necessity of the total prohibition on begging. Content-neutral regulations could accomplish the goals the government describes.
The factual situation in Loper closely resembles the factual backdrop of this case, and the Loper court’s analysis is precisely on point. Loper focused on the constitutionality of a New York Penal Law similar to the statute at issue in the case before this Court. The New York statute defined a person as guilty of loitering when that person “[l]oiters, remains or wanders about in a public place for the purpose of begging . . . .” Loper, 999 F.2d at 701. The Loper court found that begging amounted to protected speech and that the statute addressed begging in a traditional public forum. Id. at 705. Applying strict scrutiny, the court could not find that any “compelling state interest is served by excluding those who beg in a peaceful manner from communicating with their fellow citizens.” Id. The court pointed out that even if a compelling interest did exist, “a statute that totally prohibits begging in all public places cannot be considered ‘narrowly tailored’ to achieve that end.” Id. The Loper court concluded that the statute “sweeps within its overbroad purview the expressive conduct and speech that the government should have no interest in stifling” and could not stand. Id. The same is true of Michigan’s blanket ban on public begging.
3. The Statute Would not Pass Constitutional Muster Under Other Less Stringent Standards of Review, in Any Event.
The government contends that the intermediate scrutiny framework established in United States v. O’Brien, 391 U.S. 367 (1968) governs this case. In O’Brien, the Court determined that the conviction of a draft protester who burned his draft card, under a generally applicable prohibition on destroying draft cards, did not violate the First Amendment. In reaching its conclusion, the
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O’Brien Court applied what the court “[has] since called ‘intermediate scrutiny,’ under which a ‘content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.’” Holder v. Humanitarian Law Project, __ U.S. __, 130 S. Ct. 2705, 2724, 177 L.Ed. 355 (2010) (quoting Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189 (1997)). O’Brien involved “a regulation of general conduct (a prohibition on the destruction of Selective Service draft cards) that incidentally burdened ‘symbolic speech’ or ‘expressive conduct.’” Richland Bookmart, Inc. v. Knox County, 555 F.3d 512, 522 (6th Cir. 2009). This is not an O’Brien case. Michigan’s statute is content-specific, not content-neutral. That alone takes it outside the O’Brien framework. Even applying the O’Brien standard, however, the statute would still fail to pass constitutional muster. The statute does not “incidentally burden” speech or expressive conduct; rather, it prohibits an entire category of speech and expressive conduct. It burdens substantially more speech than necessary to achieve the interests the government describes. The statute does not survive the O’Brien test.
Alternatively, the government posits that the anti-begging statute is a reasonable time, place, and manner restriction. The standard applicable to time, place, or manner restrictions closely resembles O’Brien intermediate scrutiny. Ward v. Rock Against Racism, 491 U.S. 781, 797-98 (1989). Indeed, the two standards have been treated “as sufficiently similar to be applied interchangeably.” Richland Bookmart, 555 F.3d at 521. “To qualify as a reasonable time-place-andmanner regulation of speech, [a] law must (1) be content-neutral, (2) serve a significant government interest, (3) be narrowly tailored to serve that interest, and (4) leave open ample alternative channels of communication.” Jobe v. City of Catlettsburg, 409 F.3d 261, 267 (6th Cir. 2005) (citing Members
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of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808 (1984); Prime Media, Inc. v. City of Brentwood, 397 F.3d 814, 818 (6th Cir. 2005); United Food & Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738, 751-52 (6th Cir. 2004)). In this case, the statute fails to satisfy the requirements of a valid time, place, or manner restriction. The statute applies at all times, in all public places, to all manners of begging. The statute is content-specific, not contentneutral. The statute leaves open minimal, if any, alternative channels of communication. The statute fares no better under a time, place, or manner framework than under the O’Brien test.
II. Equal Protection “The Equal Protection Clause ‘protects against invidious discrimination among similarly situated individuals or implicating fundamental rights.’” Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010) (quoting Scarbrough v. Morgan Cnty. Bd. of Ed., 470 F.3d 250, 260 (6th Cir. 2006)). “The threshold element of an equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by government decision-makers.” Scarbrough, 470 F.3d at 260. Strict scrutiny is appropriate only if a classification ‘infringes on a class of people’s fundamental rights [or] targets a member of a suspect class.’” Miller, 622 F.3d at 538 (quoting Scarbrough, 470 F.3d at 260). “When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” Cary v. Brown, 447 U.S. 455, 461-62 (1980). “[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds
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acceptable, but deny use to those wishing to express less favored or more controversial views.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
The Michigan statute restricts some individuals from exercising a fundamental right, freedom of expression, while permitting other individuals with more acceptable messages to exercise that very right. The First Amendment “forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Taxpayers for Vincent, 466 U.S. at 804 (citing Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 (1983); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 533-36 (1980); Carey v. Brown, 447 U.S. 455, 462-63 (1980); Young v. American Mini-Theatres, Inc., 427 U.S. 50, 63-65 (1976) (plurality opinion); Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972)). Yet that is precisely what the Michigan anti-begging statute does, without any clear linkage between the statute and the interests the statute purports to serve. The statute runs afoul of the Equal Protection Clause, because the regulated activity is speech, thus implicating First Amendment issues.
It is important to recognize that the Equal Protection analysis largely duplicates the First Amendment analysis in this case. The government has broad discretion to regulate conduct by drawing lines. It is only when the line-drawing impinges directly on fundamental rights, such as speech, or uses suspect classifications, such as race, that strict scrutiny applies. Moreover, it is only when the line-drawing directly impinges on free speech that the unique doctrine of overbreadth comes into play. Strict scrutiny and overbreadth are special limits to the otherwise broad discretion government has to regulate activity on any reasonable basis. Here, because the statute at issue is a complete ban in all public places of a content-specific message, the First Amendment and Fourteenth Amendment analyses converge.
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III. Constitutional Claims: Conclusion. For these reasons, the Court concludes that MICH. COMP. L. § 750.167(1)(h), on its face, violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The Court’s conclusion comports with the decisions of every Circuit to consider similar restrictions. See, e.g., Loper v. N.Y. City Police Dep’t, 999 F.2d 699 (2d Cir. 1993); Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000) (rejecting constitutional challenge to ordinance that prohibited “aggressive panhandling” but allowed peaceful panhandling at certain times and in certain locations, distinguishing the ordinance as “a far cry from the total citywide ban on panhandling overturned by the Court in Loper.”); Comite de Jornaleros de Redondo Beach, 2011 WL 4336667 (9th Cir. Sept. 16, 2011) (en banc) (striking down an ordinance that prohibited “solicit[ing], or attempt[ing] to solicit, employment, business or contributions from an occupant of any motor vehicle”); ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006) (ordinance prohibiting begging and soliciting in downtown area held invalid because “[i]t is beyond dispute that solicitation is a form of expression entitled to the same constitutional protections as traditional speech”); Smith v. City of Fort Lauderdale, 177 F.3d 954 (11th Cir. 1999) (observing that “[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection” and upholding a ban on solicitation on a particular beach as a valid time, place or manner restriction when begging was still allowed “in streets, on sidewalks, and in many other public fora throughout the city.”). Indeed, virtually every court considering the constitutionality of blanket restrictions on begging has reached the same conclusion as this Court.1 See, e.g., Blair v. Shanahan, 775 F. Supp.
1The government cites just two intermediate California state cases reaching a different result: Ulmer v. Municipal Court, 55 Cal. App. 3d 263; 127 Cal. Rptr., 445 (Cal. Dist. Ct. App. 1976), and People v. Zimmerman, 15 Cal. App. 4th Supp. 7; 127 Cal. Rptr. 486 (Cal. App. 1993).
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1315 (N.D. Cal. 1991) (holding that California’s anti-begging statute violated both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment), vacated as moot, 19 F. Supp. 1361 (N.D. Cal. 1996); Ledford v. State, 652 So. 2d 1254 (Fla. Dist. Ct. App. 1995) (holding ban on begging an unconstitutional interference with free speech); Benefit v. City of Cambridge, 424 Mass. 918 (1997) (holding Massachusetts anti-begging statute a violation of the First Amendment); C.C.B. v. State of Florida, 458 So.2d 47, 50 (Fla. App. Ct. 1984) (“a total prohibition of begging or soliciting alms for oneself is an unconstitutional abridgement to the right to free speech”); Thompson v. City of Chicago, 2002 WL 31115578 (N.D. Ill. Sept. 24, 2002) (unreported) (permitting class action against city for making arrests under city anti-begging ordinance to proceed, in light of the holdings of numerous courts that such restrictions were unconstitutional).
ACCORDINGLY, Plaintiffs’ Motion for Partial Summary Judgment on the First and Third Counts of their Complaint (docket # 5) is GRANTED. Because other claims remain in the case, final relief would ordinarily not enter at this time based on the Court’s resolution of a portion of the case. The Court would instead weigh the Plaintiffs’ alternative request for entry of at least a preliminary injunction on the resolved claims pending adjudication of all remaining claims in the case. Of course, it is possible this would be an appropriate case for entry of final relief under Rule 54(b) on the First and Third Counts of the Complaint. It may even be that all parties would prefer that, and would choose to defer litigation of the remaining issues in the case pending appellate review of the legal issues addressed in this decision. The Court invites the parties’ positions on (1) the nature and scope of relief that ought to be entered at this time; and (2) the desired timing for litigation of the remaining claims in the case. If the parties agree on these issues, they may file a
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proposed stipulation and order embodying the agreement. If the parties differ, each must file a brief describing and defending their respective positions. In either case, the submissions are due not later than Monday, September 10, 2012.

Dated: August 24, 2012

/s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

JAMES SPEET and ERNEST SIMS,
Plaintiffs,
vs.
BILL SCHUETTE, Attorney General for the State of Michigan, in his official capacity; the CITY OF GRAND RAPIDS; KEVIN BELK, Chief of Police of the Grand Rapids Police Department, in his official capacity; and OFFICER GREGORY BAUER, in his individual capacity,
Defendants. /
Miriam J. Aukerman (P63165) American Civil Liberties Union
Fund of Michigan West Michigan Regional Office 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 (616) 301-0930 maukerman@aclumich.org
/

Hon. Case No.
JURY TRIAL DEMANDED CLAIM OF UNCONSTITUTIONALITY
Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 dkorobkin@aclumich.org msteinberg@aclumich.org Attorneys for Plaintiffs

VERIFIED COMPLAINT

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INTRODUCTORY STATEMENT 1. This is a federal civil rights action under 42 U.S.C. § 1983 challenging Michigan's anti-begging statute, M.C.L. § 750.167(1)(h), as unconstitutional on its face and as applied. 2. The First Amendment of the United States Constitution protects the right to ask for employment or financial assistance in public places. 3. M.C.L. § 750.167(1)(h), which makes all “begging” in all public places a crime, is an unconstitutional content-based restriction on speech that occurs in traditional public fora. 4. Plaintiff James Speet is a homeless resident of Grand Rapids who was arrested and prosecuted under M.C.L. § 750.167(1)(h) for holding up a sign saying, “Need Job, God Bless.” 5. Plaintiff Ernest Sims is a veteran with a disability who lives in Grand Rapids. He was arrested, prosecuted and convicted under M.C.L. § 750.167(1)(h) for asking a passerby for change for bus fare. 6. Plaintiffs Speet and Sims wish to continue asking the public in Grand Rapids for employment or financial assistance. However, they fear again being arrested, prosecuted, and jailed under M.C.L. § 750.167(1)(h) if they do so. 7. Defendants, acting under color of state law and pursuant to a custom, policy, or practice, have criminalized all begging under M.C.L. § 750.167(1)(h), and have thereby deprived Plaintiffs of their rights under the First and Fourteenth Amendments to the United States Constitution. 8. Plaintiffs seek a declaration that Michigan's anti-begging statute is unconstitutional on its face and as applied, a permanent injunction against the enforcement of M.C.L. § 750.167(1)(h), damages, and other appropriate relief.
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JURISDICTION AND VENUE 9. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343 because this is a civil action seeking redress for the deprivation of rights secured by the United States Constitution. 10. Plaintiffs’ claim for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202; by Rules 57 and 65 of the Federal Rules of Civil Procedure; and by the general legal and equitable powers of this Court. 11. Venue is proper in the Western District of Michigan pursuant to 28 U.S.C. § 1391(b), because that is the judicial district where the plaintiffs and defendants are located or reside, and where the majority of the events and omissions giving rise to this action occurred and will occur.
PARTIES 12. Plaintiff James Speet is an adult resident of Grand Rapids, Michigan. He has previously been arrested, prosecuted, and jailed under Michigan’s anti-begging statute. He wishes to seek employment and financial assistance from the public in the future. 13. Plaintiff Ernest Sims is an adult resident of Grand Rapids, Michigan. He has previously been arrested, prosecuted, and jailed under Michigan’s anti-begging statute. He wishes to seek financial assistance from the public in the future. 14. Defendant Bill Schuette is the Attorney General of the State of Michigan. He is responsible for the enforcement of state laws, including M.C.L. § 750.167(1)(h). As Attorney General, he is also responsible for defending state laws against challenges to their constitutionality. See M.C.L. §§ 14.28 and 14.29. In addition, as Attorney General he is responsible for “supervis[ing] the work of, consul[ing] and advis[ing] the prosecuting attorneys,
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in all matters pertaining to the duties of their office.” M.C.L. § 14.30. Defendant Schuette is sued in his official capacity.
15. The City of Grand Rapids is a municipal corporation located in Kent County, Michigan.
16. Defendant Kevin Belk is the duly appointed Chief of the Grand Rapids Police Department (GRPD). The Grand Rapids Police Department is an entity created by and responsible to Defendant City of Grand Rapids. The GRPD operates under the direction of Defendant Belk, who is the chief law enforcement officer of the City of Grand Rapids and the final policymaker of the GRPD.
17. Defendant Belk is responsible for the enforcement of all applicable laws and for the arrest of all persons alleged to have violated the law within the jurisdiction of the City of Grand Rapids. Defendant Belk is also responsible for ensuring that the GRPD police officers subject to his control and direction enforce the law in a constitutional manner. Defendant Belk exercises such power on behalf of and for the benefit of the City of Grand Rapids. He is sued in his official capacity.
18. Defendant Gregory Bauer is an officer of the Grand Rapids Police Department. 19. In July 2011, Defendant Bauer arrested Plaintiff James Speet and cited him for violating Michigan’s anti-begging statute. Defendant Bauer is sued in his individual capacity. 20. At all times relevant to this Complaint, Defendants were acting under the color of state law.
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FACTS James Speet 21. Plaintiff James Speet is a resident of Grand Rapids. He has been homeless for approximately two years. He has a tent, which he uses to camp out in the woods or parks in the greater Grand Rapids area. 22. Mr. Speet receives food stamps. His only other source of income is through “scrapping.” Mr. Speet collects bottles, cans, and scrap metal, and turns that in for cash to meet his basic needs. 23. When Mr. Speet does not have any other way to get money, he sometimes holds up a sign asking for work or help. Mr. Speet prefers not to request such help, as he has to swallow his pride to do so. However, sometimes when he really needs money, he does go out and hold up a sign. 24. When Mr. Speet needs help, he holds up a sign, rather than approaching passersby. 25. When holding up his sign, Mr. Speet sees himself as informing people about his situation and his need for help. 26. Mr. Speet has been using a sign that says, “Need Job, God Bless.” Mr. Speet uses this sign to ask for work. He sees this as similar to going to employers and filling out employment applications. 27. Mr. Speet has been able to obtain various jobs by holding up his sign. Sometimes people ask him to come and mow their lawn. One time a woman asked him to come and paint her garage. In return, she paid for him to stay in a hotel for a week, and also bought him food. 28. Mr. Speet has been arrested and prosecuted for begging multiple times in several different jurisdictions, including Grand Rapids, Wyoming, and other local municipalities.
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29. In Grand Rapids, Mr. Speet has twice been prosecuted for begging, once in January 2011 and more recently in July 2011. He was also stopped and given a warning by GRPD officers in 2009.
30. Most recently, on or about July 2, 2011, Mr. Speet was holding up his sign that said, “Need Job, God Bless.” Mr. Speet was standing on the grass between the sidewalk and the street at Burton and Division in Grand Rapids.
31. Mr. Speet saw a police officer, and started folding up his sign. 32. The police officer involved in this incident was Defendant Officer Gregory Bauer. 33. Officer Bauer immediately handcuffed Mr. Speet, and put him in the police cruiser. 34. Officer Bauer found another cardboard sign on the ground that said “Hungry.” 35. Officer Bauer wrote Mr. Speet an appearance ticket both for panhandling and for littering. Officer Bauer told Mr. Speet that if he was found panhandling again, he would go to jail, rather than get an appearance ticket. 36. The officer confiscated Mr. Speet’s sign, and subsequently threw it away. 37. By stopping, arresting, and citing Mr. Speet for begging, Defendant Bauer violated Mr. Speet’s clearly established rights under the First Amendment, Equal Protection Clause, and Due Process Clause of the United States Constitution. 38. Mr. Speet appeared in court on July 12, 2011, and pled not guilty. 39. On September 7, 2011, after Mr. Speet secured pro bono counsel, the prosecution dismissed the begging charge. Mr. Speet pled no contest to the littering charge, and was given a $100 fine.
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40. Mr. Speet was also arrested for begging in Grand Rapids in January 2011. In that case, Mr. Speet was holding up a sign saying “Cold and Hungry, God Bless.” It was very cold. Mr. Speet was trying to get enough money for a room overnight.
41. Mr. Speet was given an appearance ticket. He pled guilty. 42. The judge ordered him to pay $198 in fines and costs. The judge asked whether he could pay that immediately. Mr. Speet explained that he only had a little more than 20 cents. The judge told him that since he could not pay, he would have to go to jail. 43. Mr. Speet was incarcerated for four days. He was charged $30 a day for four days, plus a booking fee of $12, for a total $132. He receives collection notices on this bill, which is still outstanding. 44. Mr. Speet has also been arrested, prosecuted, and jailed for begging in other jurisdictions in Michigan. Mr. Speet has been sentenced to probation and jail time in those cases. 45. Mr. Speet’s speech has been chilled by the Defendants’ enforcement of M.C.L. § 750.167(1)(h). When he holds up a sign asking for help, he avoids locations where there is likely police enforcement. There are locations that Mr. Speet believes are promising spots to look for work, but that he avoids due to police enforcement. In addition, if he sees the police coming, he puts away his sign asking for help. 46. But for the state’s anti-begging law, Mr. Speet would hold up his sign in locations that he currently avoids due to likely police enforcement, including areas that he believes are more promising in terms of finding employment. But for the state’s anti-begging law, Mr. Speet would continue holding up his sign asking for help when he sees police officers.
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47. Mr. Speet has also lost funds he would have otherwise received had he been able to hold up his sign without fear of prosecution.
48. Although Mr. Speet does not like to panhandle, he believes he will continue to need to engage in panhandling when he has no other way to get the money he needs. He also believes it is important to inform people about his situation, so that if they want to help him, they can.
49. Mr. Speet wishes to engage in panhandling in the future, when necessary. He wishes to be able to request employment and/or financial assistance, both in Grand Rapids and in other jurisdictions in Michigan, without fear of arrest, prosecution, or incarceration.
50. Mr. Speet has no adequate remedy at law and will suffer irreparable harm and continued violations of his constitutional rights unless Defendants are enjoined from enforcing M.C.L. § 750.167(1)(h).
51. Attached to this Complaint as Exhibit A is a Declaration by James Speet attesting to the truth of the facts set out in the Complaint as they pertain to him.
Ernest Sims 52. Plaintiff Ernest Sims is a veteran who served in the Air Force. He has a disability, and survives on approximately $260 a month in state disability assistance, along with food stamps. 53. Mr. Sims is a resident of Grand Rapids, and is currently attending Grand Rapids Community College in the hopes of pursuing a career in electronics. 54. Mr. Sims occasionally panhandles when he needs money for transportation, clothing, or other items he cannot afford on his budget. 55. When Mr. Sims begs, he typically approaches other pedestrians and asks: “Say, can you spare change for a veteran.” If the individual declines, Mr. Sims moves on.
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56. In 2005, Mr. Sims was cited several times by the Grand Rapids Police Department for panhandling. He was prosecuted for begging, and pled guilty in each case.
57. Mr. Sims was sentenced to and served jail time for begging. 58. Most recently, on July 4, 2011, Mr. Sims needed money for bus fare. He was trying to get back and forth from his home to school, and did not have money for the bus. 59. Mr. Sims asked a person on the street, “Can you spare a little change?” 60. A male GRPD police officer witnessed Mr. Sims asking for help. 61. The officer immediately arrested Mr. Sims, handcuffed him, and put him in the police car. 62. After Mr. Sims requested that he not be taken to jail because it was the Fourth of July, the officer agreed to give him an appearance ticket. 63. Mr. Sims appeared in court on the panhandling charges on August 1, 2011 without counsel. He pled guilty, and was given a sentence of $100 or two days in jail. He was ordered to pay $20 a month towards his fine. Due to his limited income, he is having difficulty making the payments. 64. Because Mr. Sims fears prosecution, he is very reluctant to panhandle. He is afraid to exercise his free speech right to ask other people for assistance. He does not want to get a ticket, get a warrant, get arrested, or go to jail. Therefore, he only panhandles when he has no money and has no alternative means to get money. 65. As a direct result of M.C.L. § 750.167(1)(h) and its enforcement by the Defendants, Mr. Sims’ speech has been chilled. Mr. Sims has limited his begging out of fear of being arrested, prosecuted, and jailed. He does not panhandle when he sees police in the area.
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66. But for the state’s anti-begging law, Mr. Sims would request assistance from the public at times when he is short on funds, rather than waiting until he is in such great need that he is willing to risk arrest, prosecution, and incarceration. But for the state’s anti-begging law, Mr. Sims would not stop panhandling when he sees police approaching.
67. Mr. Sims has also lost funds he would have otherwise received had he been able to engage in begging without fear of arrest, prosecution, and incarceration.
68. Mr. Sims wishes to engage in begging in the future, when necessary. He wishes to be able to request assistance without fear of arrest, prosecution, or incarceration.
69. Mr. Sims has no adequate remedy at law and will suffer irreparable harm and continued violations of his constitutional rights unless Defendants are enjoined from enforcing M.C.L. § 750.167(1)(h).
70. Attached to this Complaint as Exhibit B is a Declaration by Ernest Sims attesting to the truth of the facts set out in the Complaint as they pertain to him.
The Challenged Statute 71. M.C.L. § 750.167(1)(h) provides as follows:
(1) A person is a disorderly person if the person is any of the following: …. (h) A person found begging in a public place.
72. A person convicted of being a disorderly person is “guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00 or both.” M.C.L. § 750.168(1).
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Enforcement of M.C.L. § 750.167(1)(h) by Defendants City of Grand Rapids and Chief Belk
73. In May 2011, the American Civil Liberties Union of Michigan (“ACLU”) submitted a Freedom of Information Act request to the GRPD seeking incident reports since 2008 related to begging or panhandling offenses.
74. The GRPD produced 409 incident reports related to begging or panhandling from January 1, 2008 to May 24, 2011, a period of three years and five months.
75. The City of Grand Rapids does not have a municipal ordinance restricting begging. Begging is prosecuted under the state anti-begging statute, M.C.L. § 750.167(1)(h).
76. The ACLU of Michigan analyzed the FOIA results, and cross-referenced them with on-line court records from Michigan’s 61st District Court. See Exhibit C (Analysis of Results of Freedom of Information Act Request); Exhibit D (Declaration of Sofia Nelson); Exhibit E (Declaration of Liam Considine).
77. The analysis of incident reports shows that Defendants City of Grand Rapids and Chief Belk have a policy, practice, and custom of routinely citing and arresting people who exercise their First Amendment right to engage in peaceful begging.
78. The analysis of the incident reports obtained through FOIA shows that 38 percent of the individuals stopped by the GRPD (154 cases) were holding signs requesting help. The signs contained messages like “Homeless and Hungry: Need Work,” “Homeless Please Help God Bless,” “Lost My Job Need Help,” or “Homeless and Hungry Vet.”
79. The remaining 62 percent of the time (255 cases), the individuals stopped by the GRPD were verbally requesting charity.
80. In 43 percent of the cases (177 cases), the GRPD officers immediately arrested the individuals engaged in begging.
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81. In 54 percent of the cases (222 cases) the GRPD officers issued appearance tickets or warrants on charges of begging, requiring the individual to appear in court for arraignment on those charges.
82. In only 2 percent of cases (10 cases) did the GRPD officer not proceed with charges. In at least seven of those cases, the GRPD officers warned the individuals not to beg again, or they would be arrested.
83. In the vast majority of cases (87.5 percent, or 358 cases), begging was the only offense charged.
84. In cases where an additional charge was brought, the most common additional charge was trespassing (24 cases).
85. In only three of the 409 cases was the individual also cited for a drug offense. 86. In 88 percent of cases (359 cases), the individual charged with begging pled guilty. 87. In 4 percent of cases (18 cases), the charges of begging were dismissed. 88. In the remaining 8 percent of cases (32 cases), either the cases were still pending, the dispositions could not be determined, no charges were brought, or the defendants died. 89. Individuals convicted of panhandling were given a range of sentences, including jail time and fines. 90. In 211 cases, individuals convicted of begging were sentenced directly to jail time. In 103 cases, individuals convicted of begging were given “pay or stay” sentences, whereby they were assessed fines, and were then incarcerated if they were unable to pay those fines.1 91. Collectively, the individuals charged with begging between January 1, 2008 and May 24, 2011 were sentenced to a total of 1,641 days in jail.2
1 Some individuals were given both mandatory jail time and an additional “pay or stay” sentence.
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92. Individuals who were arrested for begging spent an average of 5.7 days in jail. Individuals who were given appearance tickets spent an average of 2.8 days in jail.
93. Over the last six years, the Kent County Jail has charged other agencies daily perinmate billing rates ranging from $35.85 to $52.97. See Exhibit F (“Measuring What Matters: Kent County Correctional Facility Annual Statistical Report,” Jan. 28, 2011, at 35).
94. Based on the daily rate for 2010 ($36.82), the estimated cost of 1,641 days of incarceration for individuals charged with begging is approximately $60,422.
95. This cost estimate does not include the law enforcement costs for arresting and processing individuals cited under M.C.L. § 750.167(1)(h), nor does it include the costs for judicial or prosecutorial time in handling such cases.
Custom, Policy, or Practice of Defendants City of Grand Rapids and Kevin Belk of Enforcing M.C.L. § 750.167(1)(h)
96. It is the policy, practice and/or custom of Defendants City of Grand Rapids and its Police Department to arrest and cite individuals for begging in the City of Grand Rapids.
97. During the period from January 1, 2008 to May 24, 2011, officers of the Grand Rapids Police Department were responsible for 409 stops involving begging or panhandling, resulting in 399 cases where individuals were arrested or cited for begging or panhandling. See Exhibit C (Analysis of Results of Freedom of Information Act Request).
2 The total number days actually served could not be precisely determined. The total listed reflects sentence length, which may in some cases be different from actual time served on the sentence. In addition, the total includes “pay or stay” sentences. Although many individuals engaged in begging presumably had difficulty paying the fines imposed and therefore served those sentences, some may have been able to find the money or may have been able to make payments and avoid jail. There were also a number of cases where individuals spent time in jail prior to arraignment, or after arraignment if bond was set and the defendant was unable to post bond. With one exception, where court records clearly reflect that an individual charged with a begging offense served 69 days because he was unable to post bond, the totals for pretrial jail days have not been included. Finally, it should be noted that in some cases, defendants were sentenced on multiple offenses. It was not possible to determine precisely what portion of the sentence was attributable to the begging offense.
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98. These stops, arrests, and citations were made under color of state law and pursuant to the policy, practice, and/or custom of the Defendants.
99. Given the volume of arrests under M.C.L. § 750.167(1)(h), Defendant City of Grand Rapids and Defendant Belk had either actual or constructive notice of the widespread pattern and practice of unconstitutional interference with the free speech rights of individuals engaged in begging.
100. Despite such knowledge, Defendants took no action to stop the unconstitutional conduct of GRPD officers.
101. Individuals routinely engage in expressive activity other than “begging” in public places in the City of Grand Rapids, including engaging in political speech and charitable solicitation, without being arrested, prosecuted, or punished for such activity.
102. The State of Michigan does not compel the Defendants to enforce M.C.L. § 750.167(1)(h).
103. Some other municipalities in Michigan have adopted anti-begging ordinances that criminalize only specific types of begging, such as aggressive begging.
104. The Defendants had the option of not enforcing the statute. 105. The Defendants had the option of adopting a narrowly tailored, constitutionally valid ordinance, and enforcing that ordinance instead of M.C.L. § 750.167(1)(h). 106. However, the Defendants elected to enforce M.C.L. § 750.167(1)(h). 107. Defendants chose to enforce M.C.L. § 750.167(1)(h) despite the fact that they knew, or should have known, that the statute is unconstitutional.
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108. Plaintiffs have previously been arrested and/or cited for begging by GRPD officers, who acted under color of state law pursuant to the policy, practice and/or custom of the Defendants.
109. Because of Defendants’ policy, practice and/or custom of arresting/citing people for begging, Plaintiffs are unable to engage in begging without facing an imminent threat of being criminally prosecuted for doing so.
110. Because of Defendants’ policy, practice, and/or custom of arresting/citing people for begging, Plaintiffs’ speech has been and is being chilled.
111. Because of Defendants’ policy, practice, and/or custom of arresting/citing people for begging, Plaintiffs have lost employment and or charitable donations they would have otherwise received as a result of soliciting such employment or charitable donations.
112. Because of Defendants’ policy, practice, and/or custom of arresting/citing people for begging, Plaintiffs have been charged or may be charged for the costs of incarceration for time served in jail on convictions for begging.
113. Not only did Defendants City of Grand Rapids and Chief Belk elect to enforce M.C.L. § 750.167(1)(h), but they also failed to meet their duty to train, supervise, and discipline their personnel and officers to ensure that such personnel and officers act in accordance with constitutional principles.
114. Defendants City of Grand Rapids and Chief Belk knew or should have known that M.C.L. § 750.167(1)(h) violates the First Amendment and Fourteenth Amendment of the United States Constitution and that therefore M.C.L. § 750.167(1)(h) is unconstitutional on its face and as applied.
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115. Nevertheless, Defendants City of Grand Rapids and Chief Belk either provided no training, supervision, and discipline to their personnel and officers regarding the First and Fourteenth Amendment rights of persons engaged in peaceful begging, or they provided inadequate training, supervision, and discipline to their personnel and officers regarding the First and Fourteenth Amendment rights of persons engaged in peaceful begging.
116. The need for adequate and proper training, supervision, and discipline of GRPD officers regarding the rights of individuals engaged in begging was so obvious in light of the duties assigned to GRPD officers, and the inadequacy of the actual training, supervision, and discipline was so likely to result in the violation of constitutional rights, that the failure of Defendant City of Grand Rapids and Defendant Belk to adequately and properly train, supervise, and discipline GRPD officers regarding the First and Fourteenth Amendment rights of individuals engaged in begging amounted to deliberate indifference.
117. The failure of the Defendant City of Grand Rapids and Defendant Belk to adequately and properly train, supervise, and discipline led directly to, proximately caused, and was a moving force behind the widespread pattern, practice, and custom of GRPD officers of arresting/citing individuals for begging.
118. The failure of the Defendant City of Grand Rapids and Defendant Belk to adequately and properly train, supervise, and discipline led directly to, proximately caused, and was a moving force behind the unconstitutional actions of the individual police officers who arrested Plaintiffs Speet and Sims.
119. The failure of the Defendant City of Grand Rapids and Defendant Belk to adequately and properly train, supervise, and discipline led directly to, proximately caused, and was a moving force behind the chilling effect that Plaintiffs Speet and Sims feel and have felt,
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and that has in the past and continues at present to limit their rights under the First Amendment and Fourteenth Amendments of the United States Constitution.
120. In sum, Defendants City of Grand Rapids and Chief Belk maintained customs, policies, and practices, including routine enforcement of M.C.L. § 750.167(1)(h) and inadequate programs for training, supervision, and discipline regarding the First and Fourteenth Amendment rights of individuals seeking employment or financial assistance from the public, that allowed or encouraged GRPD officers to unlawfully but routinely arrest individuals, including the Plaintiffs, in violation of their rights under the United States Constitution.
COUNT ONE FACIAL VIOLATION OF THE FIRST AMENDMENT RIGHT TO FREEDOM OF
SPEECH (All Defendants) 121. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs. 122. The First Amendment to the United States Constitution prohibits abridgement of the freedom of speech. The First Amendment is incorporated against the States by the Fourteenth Amendment. Persons violating the First Amendment under color of state law are liable at law and in equity under 42 U.S.C. § 1983. 123. M.C.L. § 750.167(1)(h) is facially invalid under the First Amendment because it is a content-based restriction on protected speech in a public forum that is not narrowly tailored to serve a compelling state interest, and because it prohibits a substantial amount of protected speech.
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COUNT TWO VIOLATION OF THE FIRST AMENDMENT
RIGHT TO FREEDOM OF SPEECH AS APPLIED
(Defendants City of Grand Rapids, Belk, and Bauer)
124. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs.
125. The First Amendment to the United States Constitution prohibits abridgement of the freedom of speech. The First Amendment is incorporated against the States by the Fourteenth Amendment. Persons violating the First Amendment under color of state law are liable at law and in equity under 42 U.S.C. § 1983.
126. M.C.L. § 750.167(1)(h) is unconstitutional as applied in this case because the Plaintiffs have been arrested, prosecuted, and jailed for engaging in constitutionally protected speech; because Plaintiffs face the imminent threat of again being arrested, prosecuted, and jailed if they engage in constitutionally protected speech in the future; and because Plaintiffs’ speech has been chilled.
COUNT THREE FACIAL VIOLATION OF THE FOURTEENTH AMENDMENT
RIGHT TO EQUAL PROTECTION (All Defendants)
127. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs.
128. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides all persons equal protection under the law. Persons violating the Equal Protection Clause under color of state law are liable at law and in equity under 42 U.S.C. § 1983.
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129. M.C.L. § 750.167(1)(h) is facially invalid under the Equal Protection Clause because it prohibits individuals who wish to beg from engaging in protected First Amendment activity in public places, while allowing other persons to engage in First Amendment activity in public places.
COUNT FOUR VIOLATION OF THE FOURTEENTH AMENDMENT
RIGHT TO EQUAL PROTECTION AS APPLIED
(Defendants City of Grand Rapids, Belk, and Bauer)
130. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs.
131. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides all persons equal protection under the law. Persons violating the Equal Protection Clause under color of state law are liable at law and in equity under 42 U.S.C. § 1983.
132. M.C.L. § 750.167(1)(h) is also unconstitutional as applied in this case because the Defendants have enforced the statute so as to prohibit the Plaintiffs from engaging in protected First Amendment activity in public places, while allowing other persons to engage in First Amendment activity in public places.
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COUNT FIVE VIOLATION OF THE VAGUENESS DOCTRINE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
AS APPLIED (Plaintiff Speet Only) (Defendants City of City Grand Rapids, Belk, and Bauer) 133. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs. 134. The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits States from enforcing unconstitutionally vague laws. Persons violating the Due Process Clause under color of state law are liable at law and in equity under 42 U.S.C. § 1983. 135. Michigan’s anti-begging statute is invalid under the vagueness doctrine of the Due Process Clause of the Fourteenth Amendment, as applied to Plaintiff Speet, because it fails to provide a person of ordinary intelligence fair notice that asking for employment or publicly stating that one is unemployed is prohibited under the statute. 136. Defendants City of Grand Rapids and Chief Belk, acting under color of state law, violated Plaintiff Speet’s rights under the Due Process Clause by adopting a custom, policy or practice of enforcing the Michigan anti-begging statute against persons who are asking for employment from the public or stating publicly that they are unemployed. 137. Defendant Bauer, acting under color of state law, violated Mr. Speet’s clearly established rights under the Due Process Clause by citing and arresting him for holding a sign stating that he needed employment.
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RELIEF REQUESTED

WHEREFORE, Plaintiff respectfully requests that this Court:

a.

Issue a permanent injunction restraining Defendants, their employees, agents, and

successors from enforcing M.C.L. § 750.167(1)(h).

b.

Enter a judgment declaring that M.C.L. § 750.167(1)(h) violates the United States

Constitution, on its face and as applied.

c. Enter a judgment declaring that the Defendant Bauer violated Plaintiff Speet’s

clearly established rights by arresting and citing Mr. Speet for begging.

d. Award damages to the Plaintiffs against Defendant City of Grand Rapids,

Defendant Belk, and Defendant Bauer, including but not limited to:

i. Damages to all Plaintiffs for funds lost that they would have otherwise

been able to receive had they been able to seek employment or financial

assistance from the public without fear of prosecution. ii. Damages to Plaintiff Speet for injuries suffered as a result of his July 2,,

2011 arrest and prosecution for begging charges, which were subsequently

dismissed by the court.

iii. Damages to all Plaintiffs in the amount of any sums they have been or will

be charged by jail facilities based on incarceration for convictions under

M.C.L. § 750.167(1)(h).

e.

Award costs and attorney's fees pursuant to 42 U.S.C. § 1988; and

f.

Grant or award such other relief that this Court deems just and proper.

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Respectfully submitted,
/s/ Miriam J. Aukerman Miriam J. Aukerman (P63165) West Michigan Regional Office American Civil Liberties Union
Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 616-301-0930 maukerman@aclumich.org
Attorneys for Plaintiffs

/s/Daniel S. Korobkin Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 dkorobkin@aclumich.org msteinberg@aclumich.org

Dated:

September 13, 2011

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Case 1:11-cv-00972 Doc #1 Filed 09/13/11 Page 23 of 24 Page ID#23 INDEX OF EXHIBITS
A. Declaration of James Speet B. Declaration of Ernest Sims C. Analysis of Results of Freedom of Information Act Request D. Declaration of Sofia Nelson E. Declaration of Liam Considine F. “Measuring what Matters: Kent County Correctional Facility Annual Statistical Report,”
Jan. 28, 2011 (selected pages)
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JURY DEMAND Plaintiffs demand a jury on all issues so triable.

Respectfully submitted,
/s/ Miriam J. Aukerman Miriam J. Aukerman (P63165) West Michigan Regional Office American Civil Liberties Union
Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 616-301-0930 maukerman@aclumich.org
Attorneys for Plaintiffs

/s/Daniel S. Korobkin Daniel Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 dkorobkin@aclumich.org msteinberg@aclumich.org

Dated:

September 13, 2011

24

 
 Case 1:11-cv-00972-RJJ Doc #26 Filed 09/10/12 Page 1 of 6 Page ID#365

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

JAMES SPEET and ERNEST SIMS,
Plaintiffs,
vs.
BILL SCHUETTE, Attorney General for the State of Michigan, in his official capacity; CITY OF GRAND RAPIDS; KEVIN BELK, Chief of Police of the Grand Rapids Police Department, in his official capacity; and OFFICER GREGORY BAUER, in his individual capacity,
Defendants. _______________________________________/

Hon. Robert J. Jonker Case No. 1:11-cv-972

STIPULATION AND PROPOSED ORDER RE
ENTRY OF FINAL JUDGMENT ON FIRST AND THIRD COUNTS OF COMPLAINT UNDER RULE 54(B) AND ENTRY OF PERMANENT INJUNCTION
BARRING ENFORCEMENT OF M.C.L. § 750.167(1)(h)
Plaintiffs James Speet and Ernest Sims, by and through their attorney Miriam J.
Aukerman, American Civil Liberties Union Fund of Michigan; Defendant Bill Schuette, by and
through Assistant Attorney General Ann M. Sherman; and Defendants City of Grand Rapids,
Kevin Belk, and Gregory Bauer, by and through Assistant City Attorney Margaret P. Bloemers,
hereby stipulate as follows:
1. On August 24, 2012 the Court granted summary judgment on the First and Third Counts
of the Plaintiffs’ Complaint and invited the parties to submit a stipulation and proposed

Case 1:11-cv-00972-RJJ Doc #26 Filed 09/10/12 Page 2 of 6 Page ID#366
order regarding the nature and scope of relief to be entered at this time and the desired timing for future litigation of the remaining claims in the case. 2. Defendant Bill Schuette will appeal the decision of the Court. The City of Grand Rapids Defendants are seeking a decision from the Grand Rapids City Commission about whether an appeal will be filed. 3. The parties agree that because an appeal will be filed, it is prudent to stay litigation on the remaining claims until after appellate review has been completed. Therefore, the parties believe that entry of a final order under Fed. R. Civ. P. 54(b) on the First and Third Counts of the Complaint is appropriate. The parties agree that entry of a final order under Fed. R. Civ. P. 54(b) would enable the Defendants to file an appeal as of right. 4. The parties further ask that the Court, first, expressly enter a final judgment as to fewer than all the claims in the case and, second, expressly determine that there is no just reason to delay appellate review. See Gen. Acquisition, Inc. v. GenCORP, Inc., 23 F.3d 1022, 1026 (6th Cir. 1994) (setting out two-step process under Rule 54(b)). 5. The parties also believe that, in the interest of preserving the time and resources of the Court and of the parties, motions for an award of attorneys’ fees and costs, including taxable costs, should be deferred until the conclusion of all appeals in this case. 6. Accordingly, the parties request that the Court enter an order as follows:
a. Final judgment is entered in favor of Plaintiffs under Fed. R. Civ. P. 54(b) on the First and Third Counts of the Complaint for the reasons set forth in the August 24, 2012 Court’s Opinion and Order (Docket #25).
b. Defendants are permanently enjoined from enforcing M.C.L. § 750.167(1)(h). This injunction is issued based on the Court’s determination that, on its face,
2

Case 1:11-cv-00972-RJJ Doc #26 Filed 09/10/12 Page 3 of 6 Page ID#367
M.C.L. § 750.167(1)(h) violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. c. Pursuant to Fed. R. Civ. P. 65(d)(2), this injunction applies to the parties; the parties’ officers, agents, servants, employees and attorneys; and all other persons who are in active concert or participation with the parties or the parties’ officers, agents, servants, employees or attorneys. d. The Court expressly directs that this judgment constitutes a final order of the Court with respect to fewer than all of the claims in this case. This judgment is a final order with respect to the First and Third Counts of the Complaint only. The Second, Fourth, and Fifth Counts of the Complaint remain pending. e. The Court expressly determines that there is no just reason to delay appellate review. The First and Third Counts of the Complaint allege, and the Court has found, that M.C.L. § 750.167(1)(h) is unconstitutional on its face. The remaining claims are as-applied challenges. Whether litigation on the as-applied challenges will be necessary depends, primarily, upon whether the statute is unconstitutional on its face. f. Further proceedings on the Second, Fourth and Fifth Claims in the Complaint shall be stayed with respect to all parties to this action, pending the conclusion of all appeals in this case. This provision shall not preclude any action to enforce the injunction or any other orders entered by this Court. This provision also shall not preclude a negotiated settlement between any or all of the parties, or entry of any court orders applicable to such a settlement.
3

Case 1:11-cv-00972-RJJ Doc #26 Filed 09/10/12 Page 4 of 6 Page ID#368
g. Plaintiffs shall have until sixty days after the conclusion of all appeals in this case to file their motion for an award of attorneys’ fees and costs, including taxable costs. i. The “conclusion of all appeals” means the latest of: (1) the expiration of Defendants’ time to file a notice of appeal with the United States Court of Appeals for the Sixth Circuit if no Defendant files a notice of appeal; (2) if one or more Defendants appeal to the United States Court of Appeals for the Sixth Circuit, the expiration of time to file a petition for certiorari to the United States Supreme Court following a final decision by the Sixth Circuit; (3) the denial of a petition of certiorari by the United States Supreme Court; or (4) the granting of a petition for certiorari and disposition of this case by the United States Supreme Court. ii. Rather than file a separate bill of costs, Plaintiffs shall include the taxable items with the other costs for which they seek an award on the schedule established in this Order. iii. This Order supersedes any otherwise applicable time limits for the filing of attorney fee petitions, including any time limits specified in Fed. R. Civ. P. 54(d). iv. This provision shall not preclude a negotiated settlement between any or all of the parties with respect to attorneys’ fees, or entry of any court orders applicable to such a settlement.
WHEREFORE, the parties request that the Court enter their proposed order.
4

Case 1:11-cv-00972-RJJ Doc #26 Filed 09/10/12 Page 5 of 6 Page ID#369

_/s_Miriam J. Aukerman _____ Miriam J. Aukerman (P63165) American Civil Liberties Union Fund of Michigan West Michigan Regional Office 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 (616) 301-0930 maukerman@aclumich.org
_/s Daniel S. Korobkin_______ Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 dkorobkin@aclumich.org msteinberg@aclumich.org
Attorneys for Plaintiffs

_/s_Ann M. Sherman (with consent)_ Ann M. Sherman (P67762) Assistant Attorney General P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 shermana@michigan.gov
Attorney for Defendant Bill Schuette
_/s_Margaret P. Bloemers (with consent) Margaret P. Bloemers (P40853) Assistant City Attorney 300 Monroe Ave., NW, Ste. 620 Grand Rapids, MI 49503 (616) 456-3809 mbloemer@grcity.us
Attorney for Defendants City of Grand Rapids, Kevin Belk, and Officer Gregory Bauer

5

Case 1:11-cv-00972-RJJ Doc #26 Filed 09/10/12 Page 6 of 6 Page ID#370 Certificate of Service
This Stipulation was filed using the Court’s ECF system, which provides same-day email service to all counsel of record.
/s/ Miriam Aukerman maukerman@aclumich.org (P63165)
6

Case 1:11-cv-00972-RJJ Doc #26-1 Filed 09/10/12 Page 1 of 3 Page ID#371

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

JAMES SPEET and ERNEST SIMS,
Plaintiffs,
vs.
BILL SCHUETTE, Attorney General for the State of Michigan, in his official capacity; CITY OF GRAND RAPIDS; KEVIN BELK, Chief of Police of the Grand Rapids Police Department, in his official capacity; and OFFICER GREGORY BAUER, in his individual capacity,
Defendants. _______________________________________/

Hon. Robert J. Jonker Case No. 1:11-cv-972

ORDER RE ENTRY OF FINAL JUDGMENT ON FIRST AND THIRD COUNTS OF COMPLAINT UNDER RULE 54(B)
AND
ENTRY OF PERMANENT INJUNCTION BARRING ENFORCEMENT OF M.C.L. § 750.167(1)(h)

This matter having come before the Court upon the parties’ Stipulation re Entry of Final Judgment on the First and Third Counts of the Complaint Under Rule 54(b) and Entry of a Permanent Injunction Barring Enforcement of M.C.L. § 750.167(1)(h), and the Court being fully advised in the premises, IT IS HEREBY ORDERED that: 1. Final judgment is entered in favor of Plaintiffs under Fed. R. Civ. P. 54(b) on the First
and Third Counts of the Complaint for the reasons set forth in the Court’s August 24, 2012 Opinion and Order (Docket # 25).

Case 1:11-cv-00972-RJJ Doc #26-1 Filed 09/10/12 Page 2 of 3 Page ID#372
2. Defendants are permanently enjoined from enforcing M.C.L. § 750.167(1)(h). This injunction is issued based on the Court’s determination that, on its face, M.C.L. § 750.167(1)(h) violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
3. Pursuant to Fed. R. Civ. P. 65(d)(2), this injunction applies to the parties; the parties’ officers, agents, servants, employees and attorneys; and all other persons who are in active concert or participation with the parties or the parties’ officers, agents, servants, employees or attorneys.
4. The Court expressly directs that this judgment constitutes a final order of the Court with respect to fewer than all of the claims in this case. This judgment is a final order with respect to the First and Third Counts of the Complaint only. The Second, Fourth, and Fifth Counts of the Complaint remain pending.
5. The Court expressly determines that there is no just reason to delay appellate review. The First and Third Counts of the Complaint allege, and the Court has found, that M.C.L. § 750.167(1)(h) is unconstitutional on its face. The remaining claims are as-applied challenges. Whether litigation on the as-applied challenges will be necessary depends, primarily, on whether the statute is unconstitutional on its face.
6. Further proceedings on the Second, Fourth and Fifth Claims in the Complaint shall be stayed with respect to all parties to this action, pending the conclusion of all appeals in this case. This provision shall not preclude any action to enforce the injunction or any other orders entered by this Court. This provision also shall not preclude a negotiated settlement between any or all of the parties, or entry of any court orders applicable to such a settlement.
2

Case 1:11-cv-00972-RJJ Doc #26-1 Filed 09/10/12 Page 3 of 3 Page ID#373
7. Plaintiffs shall have until sixty days after the conclusion of all appeals in this case to file their motion for an award of attorneys’ fees and costs, including taxable costs. a. The “conclusion of all appeals” means the latest of: (1) the expiration of Defendants’ time to file a notice of appeal with the United States Court of Appeals for the Sixth Circuit if no Defendant files a notice of appeal; (2) if one or more Defendants appeal to the United States Court of Appeals for the Sixth Circuit, the expiration of time to file a petition for certiorari to the United States Supreme Court following a final decision by the Sixth Circuit; (3) the denial of a petition of certiorari by the United States Supreme Court; or (4) the granting of a petition for certiorari and disposition of this case by the United States Supreme Court. b. Rather than file a separate bill of costs, Plaintiffs shall include the taxable items with the other costs for which they seek an award on the schedule established in this Order. c. This Order supersedes any otherwise applicable time limits for the filing of attorney fee petitions, including any time limits specified in Fed. R. Civ. P. 54(d). d. This provision shall not preclude a negotiated settlement with respect to attorneys’ fees between any or all of the parties, or entry of any court orders applicable to such a settlement.
IT IS SO ORDERED.

Dated: _______________________

_______________________ ROBERT J. JONKER UNITED STATES DISTRICT JUDGE
3

 
 Case 1:11-cv-00972-RJJ Doc #27 Filed 09/13/12 Page 1 of 3 Page ID#374

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

JAMES SPEET and ERNEST SIMS,
Plaintiffs,
vs.
BILL SCHUETTE, Attorney General for the State of Michigan, in his official capacity; CITY OF GRAND RAPIDS; KEVIN BELK, Chief of Police of the Grand Rapids Police Department, in his official capacity; and OFFICER GREGORY BAUER, in his individual capacity,
Defendants. _______________________________________/

Hon. Robert J. Jonker Case No. 1:11-cv-972

ORDER RE ENTRY OF FINAL JUDGMENT ON FIRST AND THIRD COUNTS OF COMPLAINT UNDER RULE 54(B)
AND
ENTRY OF PERMANENT INJUNCTION BARRING ENFORCEMENT OF M.C.L. § 750.167(1)(h)

This matter having come before the Court upon the parties’ Stipulation re Entry of Final Judgment on the First and Third Counts of the Complaint Under Rule 54(b) and Entry of a Permanent Injunction Barring Enforcement of M.C.L. § 750.167(1)(h), and the Court being fully advised in the premises, IT IS HEREBY ORDERED that: 1. Final judgment is entered in favor of Plaintiffs under Fed. R. Civ. P. 54(b) on the First
and Third Counts of the Complaint for the reasons set forth in the Court’s August 24, 2012 Opinion and Order (Docket # 25).

Case 1:11-cv-00972-RJJ Doc #27 Filed 09/13/12 Page 2 of 3 Page ID#375
2. Defendants are permanently enjoined from enforcing M.C.L. § 750.167(1)(h). This injunction is issued based on the Court’s determination that, on its face, M.C.L. § 750.167(1)(h) violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
3. Pursuant to Fed. R. Civ. P. 65(d)(2), this injunction applies to the parties; the parties’ officers, agents, servants, employees and attorneys; and all other persons who are in active concert or participation with the parties or the parties’ officers, agents, servants, employees or attorneys.
4. The Court expressly directs that this judgment constitutes a final order of the Court with respect to fewer than all of the claims in this case. This judgment is a final order with respect to the First and Third Counts of the Complaint only. The Second, Fourth, and Fifth Counts of the Complaint remain pending.
5. The Court expressly determines that there is no just reason to delay appellate review. The First and Third Counts of the Complaint allege, and the Court has found, that M.C.L. § 750.167(1)(h) is unconstitutional on its face. The remaining claims are as-applied challenges. Whether litigation on the as-applied challenges will be necessary depends, primarily, on whether the statute is unconstitutional on its face.
6. Further proceedings on the Second, Fourth and Fifth Claims in the Complaint shall be stayed with respect to all parties to this action, pending the conclusion of all appeals in this case. This provision shall not preclude any action to enforce the injunction or any other orders entered by this Court. This provision also shall not preclude a negotiated settlement between any or all of the parties, or entry of any court orders applicable to such a settlement.
Ϯ

Case 1:11-cv-00972-RJJ Doc #27 Filed 09/13/12 Page 3 of 3 Page ID#376
7. Plaintiffs shall have until sixty days after the conclusion of all appeals in this case to file their motion for an award of attorneys’ fees and costs, including taxable costs. a. The “conclusion of all appeals” means the latest of: (1) the expiration of Defendants’ time to file a notice of appeal with the United States Court of Appeals for the Sixth Circuit if no Defendant files a notice of appeal; (2) if one or more Defendants appeal to the United States Court of Appeals for the Sixth Circuit, the expiration of time to file a petition for certiorari to the United States Supreme Court following a final decision by the Sixth Circuit; (3) the denial of a petition of certiorari by the United States Supreme Court; or (4) the granting of a petition for certiorari and disposition of this case by the United States Supreme Court. b. Rather than file a separate bill of costs, Plaintiffs shall include the taxable items with the other costs for which they seek an award on the schedule established in this Order. c. This Order supersedes any otherwise applicable time limits for the filing of attorney fee petitions, including any time limits specified in Fed. R. Civ. P. 54(d). d. This provision shall not preclude a negotiated settlement with respect to attorneys’ fees between any or all of the parties, or entry of any court orders applicable to such a settlement.
IT IS SO ORDERED.

Dated: __S_e_p__t_e_m_b_e_r__1_3_,___2_0_1_2__

__/_s_/__R__o_b_e_r_t__J_.__J__o_n_k_e_r ROBERT J. JONKER UNITED STATES DISTRICT JUDGE
ϯ

 
 CaseC1a:s1e1:-1cv2--020291732-RDJJocuEmCeFnNt: o0.026911fi1le7d80481/7174/13FilePda:g0e8ID/1.43/728013PagePa1goef:210 (1 of 20)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Filed: August 14, 2013

Tel. (513) 564-7000 www.ca6.uscourts.gov

Ms. Miriam J. Aukerman American Civil Liberties Union Fund of Michigan West Regional Office 1514 Wealthy, S.E, Suite 242 Grand Rapids, MI 49506
Mr. Daniel S. Korobkin ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Ann M. Sherman Office of the Michigan Attorney General Public Employment & Elections Division P.O. Box 30736 Lansing, MI 48909
Mr. Michael Jay Steinberg ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Re: Case No. 12-2213, James Speet, et al v. Bill Schuette, et al Originating Case No. : 1:11-cv-00972
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

CaseC1a:s1e1:-1cv2--020291732-RDJJocuEmCeFnNt: o0.026911fi1le7d80481/7174/13FilePda:g0e8ID/1.43/729013PagePa2goef:220 (2 of 20)

cc: Ms. Tracey Cordes Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

CaseC1a:s1e1:-1cv2--020291732-RDJJocuEmCeFnNt: o0.026911fi1le7d80481/7154/13FilePda:g0e8ID/1.43/820013PagePa3goef:210 (3 of 20)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0226p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

JAMES SPEET and ERNEST SIMS, Plaintiffs-Appellees,

X -

-

v.

-,>

BILL SCHUETTE,

-

-

Defendant-Appellant.

-

N

No. 12-2213

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:11-cv-00972—Robert J. Jonker, District Judge.

Argued: June 13, 2013

Decided and Filed: August 14, 2013 Before: MARTIN and SUTTON, Circuit Judges; ADAMS, District Judge.*

_________________

COUNSEL
ARGUED: Ann M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Miriam J. Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids, Michigan, for Appellees. ON BRIEF: Ann M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Miriam J. Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids, Michigan, Michael J. Steinberg, Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Appellees.

*The Honorable John R. Adams, United States District Judge for the Northern District of Ohio, sitting by designation.
1

CaseC1a:s1e1:-1cv2--020291732-RDJJocuEmCeFnNt: o0.026911fi1le7d80481/7154/13FilePda:g0e8ID/1.43/821013PagePa4goef:220 (4 of 20)

No. 12-2213

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Page 2

_________________
OPINION _________________
BOYCE F. MARTIN, JR., Circuit Judge. This appeal involves a facial challenge to the constitutionality, under the First and Fourteenth Amendments to the United States Constitution, of a Michigan statute that criminalizes begging. This appeal poses two issues. The first issue is whether begging is a form of solicitation that the First Amendment protects. We hold that it is. The second issue is whether, as the district court concluded, the statute violates—on its face—the First Amendment. We agree with the district court that it does. Michigan’s anti-begging statute cannot withstand facial attack because it prohibits a substantial amount of solicitation, an activity that the First Amendment protects, but allows other solicitation based on content. Therefore, we AFFIRM the district court’s judgment.
The Michigan anti-begging statute at issue in this case has existed since at least 1929. Mich. Comp. Laws § 900 (1929). The statute provides that “[a] person is a disorderly person if the person is any of the following: . . . (h) A person found begging in a public place.” Mich. Comp. Laws Ann. § 750.167(1)(h) (West 2013). The statute criminalizes begging. A person convicted under section 750.167(1)(h) is “guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.” Mich. Comp. Laws Ann. § 750.168(1) (West 2013). According to the record, the police department in Grand Rapids, Michigan recorded four-hundred and nine reports of incidents of police enforcing this anti-begging ordinance from 2008–2011.
Among those whom the Grand Rapids police arrested under the anti-begging ordinance are the plaintiffs: James Speet and Ernest Sims, two homeless adult residents of Grand Rapids, Michigan. In January 2011, Speet was arrested for begging in Grand Rapids. He was holding a sign saying: “Cold and Hungry, God Bless.” The police gave Speet an appearance ticket, and he pleaded guilty to the charge. Unable to pay the $198 fine, Speet spent four days in jail. Then, in June 2011, Speet was holding a sign that

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said, “Need Job, God Bless,” while standing between a sidewalk and a street in Grand Rapids. The Grand Rapids police again arrested him for begging. After Speet secured pro bono counsel, the prosecution dismissed the begging charge.
On July 4, 2011, Sims needed money for bus fare, and asked a person on the street: “Can you spare a little change?” A Grand Rapids police officer witnessed Sims asking for change and immediately arrested him. After Sims, a veteran, requested that he not be taken to jail because it was the Fourth of July, the officer agreed to give him an appearance ticket. Later, Sims appeared without counsel in court on the begging charge. He pleaded guilty and was sentenced to pay a fine of $100. Speet and Sims are not the only people that have been fined or jailed under Michigan’s anti-begging statute. The Grand Rapids Police Department, during 2008–2011, initiated three-hundred and ninety-nine cases by arresting or citing people for begging.
Speet and Sims sued Michigan Attorney General Bill Schuette, the City of Grand Rapids, and several of its police officers for declaratory and injunctive relief, alleging that Michigan’s anti-begging statute violated—both facially and as applied—the First Amendment and the Fourteenth Amendment’s Equal Protection Clause.
The complaint’s first count asserted that Michigan’s anti-begging law was “facially invalid under the First Amendment[;]” likewise, the complaint’s third count asserted that Michigan’s anti-begging law was “facially invalid under the Equal Protection Clause.” The complaint’s second and fourth counts asserted that the statute violated the First and Fourteenth Amendments “as applied” to Speet and Sims.
Instead of moving for summary judgment on the as-applied claims, Speet and Sims moved for summary judgment on the facial claims. Speet v. Schuette, 889 F. Supp. 2d 969, 972 (W.D. Mich. 2012). Michigan also moved for summary judgment on these claims. Id. In a published opinion and order, the district court granted Speet’s and Sims’ motion for partial summary judgment. Id. at 980. Michigan Attorney General Bill Schuette filed a timely appeal.

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We review de novo a district court’s decision to grant summary judgment. Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 569 (6th Cir. 2012) (citing Dillon v. Cobra Power Corp., 560 F.3d 591, 595 (6th Cir. 2009)). A district court properly grants summary judgment when “‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Id. (quoting Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758, 761 (6th Cir. 2010)). Here, the “parties agree[d] that there [was] no genuine issue of material fact regarding the facial challenge and that judgment as a matter of law [was] appropriate.” Speet, 889 F. Supp. 2d at 972.
A facial challenge to a law’s constitutionality is an effort “to invalidate the law in each of its applications, to take the law off the books completely.” Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir 2009) (en banc); see also Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, n.5 (1982) (“a ‘facial’ challenge . . . means a claim that the law is ‘invalid in toto—and therefore incapable of any valid application.’” (quoting Steffel v. Thompson, 415 U.S. 452, 474 (1974))). In contrast to an as-applied challenge, which argues that a law is unconstitutional as enforced against the plaintiffs before the court, a facial challenge “is not an attempt to invalidate the law in a discrete setting but an effort ‘to leave nothing standing[.]’” Connection Distributing Co., 557 F.3d at 335 (en banc) (quoting Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc)). Sustaining a facial attack to the constitutionality of a state law, as the district court did, is momentous and consequential. It is an “exceptional remedy.” Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir. 2010).
Generally, to “succeed in a typical facial attack,” a plaintiff must establish “‘that no set of circumstances exists under which [the statute] would be valid.’” United States v. Stevens, 130 S.Ct. 1577, 1587 (2010) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Or, a plaintiff would have to establish that “the statute lacks any ‘plainly legitimate sweep[.]’” Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 740 n.7

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(1997) (Stevens, J., concurring)). Here, Attorney General Schuette argues that, to succeed in their facial attack, Speet and Sims must demonstrate that there is no conceivable manner in which the anti-begging statute can be enforced consistent with the First Amendment. While this is the general rule, an exception exists for facial challenges based on the First Amendment.
Where a plaintiff makes a facial challenge under the First Amendment to a statute’s constitutionality, the “facial challenge” is an “overbreadth challenge.” Connection Distrib. Co., 557 F.3d at 335; see also City of Houston, Tex. v. Hill, 482 U.S. 451, 458 (1987) (“Only a statute that is substantially overbroad may be invalidated on its face.” (citing New York v. Ferber, 458 U.S. 747, 769 (1982); Broadrick v. Oklahoma, 413 U.S. 601 (1973))). Instead of having to prove that no circumstances exist in which the enforcement of the statute would be constitutional, the plaintiff bears a lesser burden: “to demonstrate that a ‘substantial number of instances exist in which the law cannot be applied constitutionally.’” Glenn v. Holder, 690 F.3d 417, 422 (6th Cir. 2012) (quoting Richland Bookmart, Inc. v. Knox Cnty., 555 F.3d 512, 532 (6th Cir. 2009)). Thus, “[t]he First Amendment doctrine of overbreadth is an exception to [the] normal rule regarding the standards for facial challenges.” Virginia v. Hicks, 539 U.S. 113, 118 (2003) (citing Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984)).
And in a facial challenge, a plaintiff must show substantial overbreadth: that the statute prohibits “‘a substantial amount of protected speech both in an absolute sense and relative to [the statute’s] plainly legitimate sweep[.]’” Carey v. Wolnitzek, 614 F.3d 189, 208 (6th Cir. 2010) (quoting Connection Distrib. Co., 557 F.3d at 336). We have acknowledged that “[T]he concept of ‘substantial overbreadth’” has “some elusive qualities[.]” Connection Distrib. Co., 557 F.3d at 340; see also Taxpayers for Vincent, 466 U.S. at 800 (“[t]he concept of ‘substantial overbreadth’ is not readily reduced to an exact definition.”). But the doctrine of substantial overbreadth “involves an inquiry into the ‘absolute’ nature of a law’s suppression of speech.” Connection Distrib. Co., 557 F.3d at 340. A facial challenge based on substantial overbreadth “describe[s] a

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challenge to a statute that in all its applications directly restricts protected First Amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest.” Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 966 n.13 (1984) (citing Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637–639 (1980) (rest of citation omitted)). As the Supreme Court has explained, the point of an overbreadth challenge “is that there is no reason to limit challenges to case-by-case ‘as applied’ challenges when the statute on its face and therefore in all its applications falls short of constitutional demands.” Joseph H. Munson Co., Inc., 467 U.S. at 966 n.13. If we determine that a statute is substantially overbroad, we have necessarily determined that there is “‘a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.’” N. Y. State Club Ass’n v. City of N. Y., 487 U.S. 1, 11 (1988) (quoting Taxpayers for Vincent, 466 U.S. at 801). To succeed in an overbreadth challenge, therefore, a plaintiff must “demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the [statute] cannot be applied constitutionally.” N. Y. State Club, 487 U.S. at 14.
So the first step in reviewing a facial challenge to a law’s overbreadth requires us “‘to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.’” City of Houston, 482 U.S. at 458–59 (quoting Vill. of Hoffman Estates, 455 U.S. at 494; Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983)). If the law does not reach a substantial amount of constitutionally protected conduct, “then the overbreadth challenge must fail.” Vill. of Hoffman Estates, 455 U.S. at 494. In other words, the “first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Williams, 553 U.S. at 293. We must scrutinize “[c]riminal statutes . . . with particular care[.]” City of Houston, 482 U.S. at 459 (citing Winters v. New York, 333 U.S. 507, 515 (1948). Here, then, we must first determine whether the Michigan statute reaches a substantial amount of constitutionally protected conduct or speech. And, because it is a criminal statute, we must scrutinize the statute with particular care.

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On appeal, Attorney General Schuette argues that the anti-begging statute does not reach any conduct or speech that the First Amendment protects. But begging, by its very definition, encapsulates the solicitation for alms. Although neither the anti-begging section of the statute, nor another section of the statute, defines “begging,” according to Michigan law, “[w]hen a statute fails to define a term, we will construe it ‘according to its common and approved usage . . . .’” Jennings v. Southwood, 521 N.W.2d 230, 237 (Mich. 1994) (quoting State ex rel. Wayne Cnty. Prosecutor v. Levenburg, 280 N.W.2d 810, 812 (1979), abrogated on other grounds by Michigan ex rel County Prosecutor v. Bennis, 527 N.W.2d 483 (Mich. 1994)). Michigan law further provides that “resort[ing] to the standard dictionary definition is an appropriate means of determining [a term’s] common and approved usage.” Shinkle v. Shinkle, 663 N.W.2d 481, 485 (Mich. Ct. App. 2003) (citing Horace v.Pontiac, 575 N.W.2d 762, 767 (1998)). Here, Attorney General Schuette resorted to a dictionary definition of begging in his opening brief, defining begging as “soliciting alms.” The New American Heritage Dictionary 119 (5th ed. 1976). We see no reason not to use, for the purposes of this appeal, this commonsense definition of begging as “soliciting alms.”
While the United States Supreme Court has not, as Michigan correctly points out in its briefs, directly decided the question of whether the First Amendment protects soliciting alms when done by an individual, the Court has held—repeatedly—that the First Amendment protects charitable solicitation performed by organizations.
In Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 622 (1980), the Court addressed the validity, under the First and Fourteenth Amendments, of a municipal ordinance that prohibited charitable organizations from soliciting contributions unless they used at least seventy-five percent of their receipts for what the ordinance defined as charitable purposes. The plaintiffs challenged “the facial validity of the village ordinance on First Amendment grounds,” id. at 627, and the Court affirmed the Seventh Circuit’s upholding of the district court’s “judgment of facial invalidity” of the ordinance. Id. at 634.

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After summarizing its relevant cases, the Court held that its “[p]rior authorities, therefore, clearly establish that charitable appeals for funds, on the street or door to door, involve a variety of speech interests—communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes—that are within the protection of the First Amendment.” Id. at 632.
The Court has repeatedly reaffirmed Schaumburg’s holding that the First Amendment protects charitable solicitation. In 1984, the Court observed that Schaumburg had determined that “charitable solicitations are so intertwined with speech that they are entitled to the protection of the First Amendment.” Joseph H. Munson Co., 467 U.S. at 959. Then, in 1988, the Court reiterated that Schaumburg and Munson, “teach that the solicitation of charitable contributions is protected speech[.]” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 789 (1988). In 1990, in United States v. Kokinda, 497 U.S. 720 (1990) (plurality opinion), while the Court held constitutional, as applied, a United States Postal Service regulation prohibiting the solicitation of alms and contributions on postal premises, the Court also stated that “[s]olicitation is a recognized form of speech protected by the First Amendment.” Kokinda, 497 U.S. at 725 (citing Schaumburg, 444 U.S. at 629; Riley, 487 U.S. at 788–789). Thus, the First Amendment protects charitable solicitation performed by organizations. But does the First Amendment protect the solicitation of alms when performed by an individual not affiliated with a group? We hold that it does.
We find persuasive the Seventh Circuit’s reasoning in Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000), in which a plaintiff mounted an as-applied challenge, on First Amendment grounds, to an Indianapolis ordinance that prohibited soliciting in public places. The Seventh Circuit acknowledged that “the Supreme Court has not resolved directly the constitutional limitations on [panhandling laws] as they apply to individual beggars,” but noted that the Court “has provided clear direction on how they apply to organized charities, not-for-profits, and political groups.” Gresham, 225 F.3d at 903 (citing Riley, 487 U.S. at 789; Joseph H. Munson Co., 467 U.S. at 959–60; Schaumburg, 444 U.S. at 632).

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We agree with the Seventh Circuit’s reasoning that “Shaumburg provides the appropriate standard to analyze” whether the First Amendment protects begging. Gresham, 225 F.3d at 904–05. Gresham analogized panhandlers to the charity in Shaumburg, saying that “[l]ike the organized charities, [the panhandlers’] messages cannot always be easily separated from their need for money.” Id. at 904. The Gresham panel concluded by saying that “[w]hile some communities might wish for all solicitors, beggars and advocates of various causes be vanished from the streets, the First Amendment guarantees their right to be there, deliver their pitch and ask for support.” Id. (citing Schaumburg, 444 U.S. at 632). We further agree with Gresham’s observation that “[i]ndeed, the Court’s analysis in Schaumburg suggests little reason to distinguish between beggars and charities in terms of the First Amendment protection for their speech.” Id.
Our sister circuits—the Second, Eleventh, and Fourth Circuits—in cases decided before and after Gresham, have similarly held that begging is a type of solicitation protected by the First Amendment. We find these cases to be persuasive authority, as well, for our holding that begging is a form of solicitation that the First Amendment protects.
The Second Circuit, in Loper v. New York City Police Department, 999 F.2d 699, 706 (2d Cir. 1993), affirmed the district court’s judgment that had declared unconstitutional, on First Amendment grounds, a state statute which stated that “[a] person is guilty of loitering when he: 1. [l]oiters, remains or wanders about in a public place for the purpose of begging . . . .” N.Y. Penal Law § 240.35(1) (McKinney 1989). Loper, like Gresham, relied on Schaumburg’s holding that “‘charitable appeals for funds, on the street or door to door, involve a variety of speech interests—communication of information, the dissemination and propagation of view and ideas, and the advocacy of causes—that are within the protection of the First Amendment.’” Loper, 999 F.2d at 704 (quoting Schaumburg, 444 U.S. at 632). Loper explained that “[i]nherent in all the charitable solicitation cases revolving around the First Amendment is the concept that ‘[c]anvassers in such contexts are necessarily more

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than solicitors for money.’” Id. (quoting Schaumburg, 444 U.S. at 632)). The Loper panel explained that “[b]egging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation.” Loper, 999 F.2d at 704. It concluded that[,] “in regard to the message conveyed,” it saw “little difference between those who solicit for organized charities and those who solicit for themselves[,]” because those who solicit for organized charities “are communicating the needs of others[,]” while those who solicit for themselves “are communicating their personal needs.” Id. According to the Loper panel, “[b]oth solicit the charity of others. The distinction is not a significant one for First Amendment purposes.” Id. (citation omitted).
The Eleventh Circuit, in Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954, 955 (11th Cir. 1999), held that a city’s regulation proscribing begging on a certain fivemile strip of beach and two attendant sidewalks was narrowly tailored to serve the city’s legitimate interests. But the court began its analysis by stating that “[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection.” Id. at 956 (footnote omitted) (citing, Loper 999 F.2d 699 at 704; Schaumburg, 444 U.S. at 632).
This year, the Fourth Circuit, in Clatterbuck v. City of Charlottesville, 708 F.3d 549, 551 (4th Cir. 2013), addressed the question of whether a municipal ordinance, that prohibited people from soliciting immediate donations in two streets near a downtown shopping area, unconstitutionally restricted the free speech of individuals who regularly begged there. The court noted, “[a]s a preliminary matter,” that “the speech and expressive conduct that comprise begging merit First Amendment protection.” Id. at 553. The court observed that the United States Supreme Court has “held that the solicitation of ‘charitable contributions’ is protected speech.” Id. (quoting Riley, 487 U.S. at 789). The court also observed that several other United States Courts of Appeals had “extended that holding to begging, which is simply solicitation on behalf of the speaker.” Id. (citing Smith 177 F.3d at 956; Loper, 999 F.2d at 704). The court concluded by stating “[w]e agree that begging is communicative activity within the protection of the First Amendment.” Id.

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Michigan relies on several authorities to argue that the First Amendment does not protect begging, or soliciting alms—but we find not one of these authorities persuasive. First, Michigan cites Part II of Justice Kennedy’s concurrence in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 703 (1992) (plurality opinion). In Part II of his concurrence, Justice Kennedy stated that he was “in full agreement with the statement of the Court that solicitation is a form of protected speech.” Lee, 505 U.S. at 704 (citing Riley, 487 U.S. at 788–89; Schaumburg, 444 U.S. at 629) (rest of citation omitted)). But Justice Kennedy argued that an airport regulation that prohibited solicitation for the immediate payment of funds did not violate the First Amendment because the regulation “reache[d] only personal solicitations for immediate payment of money.” Lee, 505 U.S. at 704. Justice Kennedy hypothesized that, had the regulation “prohibited all speech that requested the contribution of funds,” then he “would [have] conclude[d] that it was a direct, content-based restriction of speech in clear violation of the First Amendment.” Id. But, Justice Kennedy wrote, the “regulation d[id] not prohibit all solicitation[;]” rather, “it prohibit[ed] the ‘solicitation and receipt of funds.’” Id. Justice Kennedy characterized the restriction as “directed only at the physical exchange of money, which is an element of conduct interwoven with otherwise expressive solicitation.” Id. at 705.
We decline to follow the reasoning in Part II of Justice Kennedy’s concurrence in Lee for three reasons. First, to the extent that Part II of Justice Kennedy’s concurrence argues that the “physical exchange of money” may be isolated from the act of solicitation, it runs contrary to Schaumburg’s holding that solicitation of charitable donations is “characteristically intertwined with informative and perhaps persuasive speech[.]” Schaumburg, 444 U.S. at 632. Schaumburg does not suggest that the physical exchange of money may be isolated; it is “intertwined” with speech that the First Amendment protects. Second, Part II of Justice Kennedy’s concurrence is not Lee’s holding. And third, Justice Kennedy wrote Part II without another Justice joining him.

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Michigan also cites the Second Circuit’s decision in Young v. New York City Transit Authority, 903 F.2d 146 (2d Cir. 1990), as authority for the proposition that the First Amendment does not protect begging. Young initially framed the issue as “whether the prohibition of begging and panhandling in the New York City subway system violate[d] the First Amendment of the United States Constitution.” Young, 903 F.2d at 147 (footnote omitted). The regulation provided that “‘no person, unless duly authorized . . . shall upon any facility or conveyance . . . solicit alms, subscription or contribution for any purpose.’” Id. at 148 (quoting N.Y. Comp. Codes R. & Regs. tit. 21, § 1050.6(b) (1989)). The Second Circuit opined that “[c]ommon sense” dictates that “begging is much more ‘conduct’ than it is ‘speech.’” Id. at 153. Therefore, the court reframed the issue as “whether begging constitutes the kind of ‘expressive conduct’ protected to some extent by the First Amendment.” Id.
Young read Schaumburg’s holding to be limited to appeals by organized charities; only these solicitations involve a variety of speech interests including communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes. Id. at 155. Young asserted that “neither Schaumburg nor its progeny stand for the proposition that begging and panhandling are protected speech under the First Amendment.” Id. Rather, the court said, Schaumburg, Munson and Riley “hold that there is a sufficient nexus between solicitation by organized charities and a ‘variety of speech interests’ to invoke protection under the First Amendment.” Id. Young displayed the panel’s distaste for begging, writing that “[w]hile organized charities serve community interests by enhancing communication and disseminating ideas, the conduct of begging and panhandling in the subway amounts to nothing less than a menace to the common good.” Young, 903 F.2d at 156 (citing Taxpayers for Vincent, 466 U.S. at 805).
We decline to follow the Young majority’s reasoning. We find more persuasive Young’s dissent, which held that there is no “legally justifiable distinction” between “begging for one’s self and solicitation by organized charities.” Young, 903 F.2d at 164 (Meskill, J., dissenting). The dissent read Schaumburg—as we do— as holding that

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“charitable solicitation is protected because it ‘is characteristically intertwined with . . . speech seeking support for particular causes or for particular views on economic, political, or social issues.’” Id. at 165 (quoting Schaumburg, 444 U.S. at 632). We agree with the dissent’s statement that Schaumburg “held that First Amendment protection attaches to all charitable solicitation, whether or not any speech incident to the solicitation actually takes place, because a sufficient nexus exists between a charity’s expression of ideas and its fundraising.” Id. We further agree with the dissent’s conclusion that “if First Amendment protection extends to charitable solicitation unaccompanied by speech, as it apparently does, it must extend to begging as well.” Id. And we agree that “begging is indistinguishable from charitable solicitation for First Amendment purposes. To hold otherwise would mean that an individual’s plight is worthy of less protection in the eyes of the law than the interests addressed by an organized group.” Id. at 167.
Moreover, Loper overruled Young’s holding that begging is not conduct that communicates. Loper stated that “[w]hile we indicated in Young that begging does not always involve the transmission of a particularized social or political message, see Young, 903 F.2d at 153, it seems certain that it usually involves some communication of that nature.” Loper, 999 F.2d at 704.
Based on the foregoing discussion, we hold that begging, or the soliciting of alms, is a form of solicitation that the First Amendment protects.
We now consider whether Michigan’s anti-begging statute is substantially overbroad. We will not apply the “‘strong medicine’ of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 n.6 (citing N. Y. State Club, 487 U.S. at 14). The plaintiff bears “‘the burden of demonstrating . . . substantial overbreadth.’” Connection Distrib. Co., 557 F.3d at 336 (quoting Hicks, 539 U.S. 113, 122 (2003)). A plaintiff “‘must demonstrate from the text of the statute and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally.’” United States v. Coss, 677 F.3d 278, 289 (6th Cir. 2012)

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(quoting Am. Booksellers Found. for Free Expression v. Strickland, 601 F.3d 622, 627 (6th Cir. 2010)). A plaintiff may not “leverag[e] a few alleged unconstitutional applications of the statute into a ruling invalidating the law in all of its applications.” Connection Distrib. Co., 557 F.3d at 340. Sometimes plaintiffs have difficulty bearing this burden. For example, in one case we said that the record was “‘utterly barren about whether some, many, indeed any, [other people] [were] affected by . . . application of the statute.’” Glenn, 690 F.3d at 422 (quoting Connection Distrib. Co., 557 F.3d at 338–39). We do not have that problem here.
The record shows that the statute reaches a substantial amount of begging, which we have held that the First Amendment protects because it is a form of solicitation. Instead of a few instances of alleged unconstitutional applications, we have hundreds. The Grand Rapids Police Department produced four hundred nine incident reports related to its enforcement of the anti-begging statute. Thirty-eight percent of the people that the police stopped were holding signs requesting help, containing messages like “Homeless and Hungry: Need Work,” “Homeless Please Help God Bless,” “Lost My Job Need Help,” and “Homeless and Hungry Vet.” The other sixty-two percent of the stops (two hundred fifty-five instances) involved people verbally soliciting charity. In fortythree percent of the cases, the police immediately arrested the people who were begging. In two hundred eleven cases, people convicted of begging were sentenced directly to jail time. The record in this case bolsters our “judicial prediction” that “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612.
Thus, sustaining the facial challenge in this case is appropriate because the risk exists that, if left on the books, the statute would chill a substantial amount of activity protected by the First Amendment. We must provide “this expansive remedy” because “the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech”—especially where, as here, “the overbroad statute imposes criminal sanctions.” Hicks, 539 U.S. at 119 (citing Schaumburg, 444 U.S. at 634; Bates v. State Bar of Ariz., 433 U.S. 350, 380 (1977); NAACP v. Button, 371 U.S. 415, 433 (1963)).

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The reason for this is that “free expression may be inhibited almost as easily by the potential or threatened use of power as by the actual exercise of that power.” N. Y. State Club, 487 U.S. at 11 (citing Thornhill v. Alabama, 310 U.S. 88, 97–98 (1940)). We are concerned that “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Hicks, 539 U.S. at 119 (citation omitted). Thus “[o]verbreadth adjudication, by suspending all enforcement of an overinclusive law, reduces these social costs caused by the withholding of protected speech.” Id. As long as “the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one.” Dombrowski v. Pfister, 380 U.S. 479, 494 (1965).
But “[f]acial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” Broadrick, 413 U.S. at 613 (citing Dombrowski, 380 U.S. at 491; Cox v. New Hampshire, 312 U.S. 569 (1941); United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971); Breard v. Alexandria, 341 U.S. 622 (1951)). Therefore, we must consider any limiting construction of the statute that Michigan can present. Vill. of Hoffman Estates, 455 U.S. at 495 n.5 (“[i]n evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered.”) (citing Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)). We need not consider a limiting construction, however, if the statute “is not ‘fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question.’” Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 575 (1987) (quoting Harmon v. Forssenius, 380 U.S. 528, 535 (1965)).
Here, we cannot read the statute to limit its constitutional effect. The statute simply bans an entire category of activity that the First Amendment protects.
We acknowledge that the statute serves “a sufficiently strong, subordinating interest that [Michigan] is entitled to protect.” Schaumburg, 444 U.S. at 636. Here,

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Attorney General Schuette argues that Michigan’s interest is in preventing fraud. He argues that not all those who beg are homeless and destitute, nor do all those who beg use the funds they receive from begging to meet basic needs. Instead, those who beg often spend that money on alcohol. The record contains an affidavit of an executive director of an agency that works with the homeless as saying that “the great majority of people panhandling for money are using the money for alcohol and drugs.” Furthermore, panhandlers who display signs saying that they are homeless often are not. Rather, they use the signs “to elicit sympathy and money, often to feed a drug or alcohol problem.” Even the United States Department of Justice has recognized “[t]his potential for fraud” and has put out a publication on panhandling which states that “some panhandlers pretend to be disabled and/or war veterans,” and that the panhanders’ “primary purpose is to immediately buy alcohol or drugs.” Attorney General Schuette also argues that the ordinance prevents duress.
We agree with Attorney General Schuette that the prevention of fraud and duress are substantial state interests. In Schaumburg, the Village argued that its ordinance was intimately related to the substantial governmental interests in protecting the public from fraud, crime, and undue annoyance. Schaumburg, 444 U.S. at 636. The Court noted that, like here, “[p]revention of fraud [was] the Village’s principal justification” for the ordinance. Id. The Court declared that, while these interests were substantial, they were “only peripherally promoted” by the ordinance and “could be sufficiently served by measures less destructive of First Amendment interests.” Id. The Court said, “[t]he Village’s legitimate interest in preventing fraud can be better served by measures less intrusive than a direct prohibition on solicitation.” Id.
Michigan’s interest in preventing fraud 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. Indeed, “‘[b]ecause First Amendment freedoms need breathing space to survive,’” a state “‘may regulate in the area only with narrow specificity.’” Gooding v. Wilson, 405 U.S. 518, 522 (1972) (quoting Button, 371 U.S. at 433). A state must carefully craft the statute “to punish only unprotected

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speech and not be susceptible of application to protected expression.” Gooding , 405 U.S. at 522. As the Supreme Court has warned, “statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick, 413 U.S. at 611–12 (citations omitted). Where, as here, “the statute unquestionably attaches sanctions to protected conduct, the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack.” Taxpayers for Vincent, 466 U.S. at 800 n.19 (citing Erzonznik v. City of Jacksonville, 422 U.S. 205, 217 (1975)). Michigan may regulate begging. As the Supreme Court has said, “[s]oliciting financial support is undoubtedly subject to reasonable regulation[.]” Schaumburg, 444 U.S. at 632. But Michigan must regulate begging “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[.]” Id.
Because the anti-begging ordinance violates the First Amendment in banning a substantial amount of activity that the First Amendment protects, we AFFIRM the district court’s judgment. We need not, and so do not, consider whether the ordinance violates the Fourteenth Amendment.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 12-2213
JAMES SPEET and ERNEST SIMS, Plaintiffs - Appellees,

FILED
Aug 14, 2013
DEBORAH S. HUNT, Clerk

v.

BILL SCHUETTE, Defendant - Appellant.

Before: MARTIN and SUTTON, Circuit Judges; ADAMS, District Judge.

JUDGMENT

On Appeal from the United States District Court for the Western District of Michigan at Grand Rapids.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the district court’s judgment is AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 ACLU Commends Royal Oak for Repealing Harsh and Unconstitutional Ban on Begging
The organization encourages a dozen Oakland County cities to follow suit
FOR IMMEDIATE RELEASE: May 16, 2011
DETROIT – The American Civil Liberties Union of Michigan commended Royal Oak officials for repealing an unconstitutional ordinance that punished peaceful panhandling on public sidewalks. The organization encourages cities across the state, including at least a dozen in Oakland County, to follow suit.
“Royal Oak realized that criminalizing the most vulnerable segment of our society is not only wrong, but also illegal,” said Dan Korobkin, ACLU of Michigan staff attorney. "City officials should be commended for their quick action to repeal the ordinance and protect the free speech rights of the poor.”
In January, the ACLU of Michigan sent a letter to Royal Oak city officials after learning that police were enforcing an unconstitutional ordinance that made it a crime for individuals to peacefully ask for money on all public streets and sidewalks. Earlier this month, the Royal Oak City Commission voted to amend the ordinance to comply with state and federal rulings that protect begging in public spaces as protected speech under the First Amendment.
“Royal Oak was not the only city with an unconstitutional begging ordinance,” said Korobkin. “We hope other cities will take this opportunity to review their city code and follow Royal Oak’s lead in protecting the constitutional rights of poor people.”
At least a dozen other Oakland County municipalities, including Birmingham, Bloomfield Hills, Farmington, Farmington Hills, Madison Heights, Milford, Novi, Northville, South Lyon, Walled Lake, Waterford and West Bloomfield, completely ban begging in violation of the Constitution.
"The ACLU is not opposed to laws that protect citizens from threats, intimidation and harassment,” said Korobkin. “However, city officials across the state should be on notice that our laws cannot be used as a tool to silence the voices of innocent people who rely on charity to survive.”
Royal Oak’s new ordinance prohibits only "aggressive begging," which is clearly defined as:
• Touching the solicited person without consent. • Blocking the path of a person being solicited or the entrance to a building or vehicle. • Following behind, alongside or ahead of a person who walks away from a solicitor. • Using abusive language or gestures during a solicitation or when a donation is refused;
communicating anything that would make a reasonable person feel fearful or compelled to give. • Soliciting someone at a sidewalk cafe without getting the owner's permission.

Courts have upheld “aggressive begging” ordinances provided they are narrowly tailored to protect the public from actual harm and leave open ample alternatives for panhandling in public places.
In addition to Korobkin, the ACLU of Michigan’s letter to Royal Oak was signed by Richard H. Lobenthal, ACLU Oakland County Branch president, and Michael J. Steinberg, the ACLU of Michigan’s legal director.
Read Royal Oak’s amended ordinance.
Read the ACLU of Michigan’s letter to the Royal Oak Police Chief and City Attorney.

 
 United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:11-cv-00972-RJJ

Speet et al v. Schuette et al Assigned to: Chief Judge Robert J. Jonker Case in other court: the Sixth Circuit, 12-02213 Cause: 42:1983 Other Civil Rights

Date Filed: 09/13/2011 Date Terminated: 10/23/2013 Jury Demand: Both Nature of Suit: 950 Constitutional State Statute Jurisdiction: Federal Question

plaintiff James Speet

represented by Daniel S. Korobkin ACLU Fund of Michigan (Detroit) 2966 Woodward Ave. Detroit, MI 48201-3035 (313) 578-6824 Fax: (313) 578-6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED

Michael J. Steinberg ACLU Fund of Michigan (Detroit) 2966 Woodward Ave. Detroit, MI 48201-3035 (313) 578-6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED

Miriam J. Aukerman ACLU of Michigan 1514 Wealthy St., SE, Ste. 242 Grand Rapids, MI 49506 (616) 301-0930 Email: maukerman@aclumich.org ATTORNEY TO BE NOTICED

plaintiff Ernest Sims

represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address)

ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED

V. defendant Bill Schuette Attorney General for the State of MIchigan, in his official capacity
defendant Grand Rapids, City of
defendant Kevin Belk Chief of Police of the Grand Rapids Police Deparatment, in his official capacity defendant Gregory Bauer Officer, in his individual capacity

represented by Ann Maurine Sherman MI Dept Attorney General (Employ,Elect,Torts) Public Employment, Elections and Torts Division 525 W. Ottawa, 3rd Fl. P.O. Box 30758 Lansing, MI 48909 (517) 373-1067 Email: shermana@michigan.gov ATTORNEY TO BE NOTICED
represented by Margaret P. Bloemers Grand Rapids, City of (City Attorney) 300 Monroe Ave., NW, Ste. 620 Grand Rapids, MI 49503 (616) 456-4026 Email: mbloemer@ci.grandrapids.mi.us ATTORNEY TO BE NOTICED
represented by Margaret P. Bloemers (See above for address) ATTORNEY TO BE NOTICED
represented by Margaret P. Bloemers (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/13/2011
09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011
09/13/2011 09/14/2011 09/15/2011
09/15/2011

# Docket Text
1 COMPLAINT with jury demand against All Defendants filed by James Speet, Ernest Sims (Attachments: # 1 Index Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Aukerman, Miriam) (Entered: 09/13/2011)
FILING FEE PAID re 1 by plaintiffs Ernest Sims, James Speet in the amount of $350, receipt number 0646-2037935 (Aukerman, Miriam) (Entered: 09/13/2011)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Daniel Stewart Korobkin on behalf of plaintiffs Ernest Sims, James Speet (Korobkin, Daniel) (Entered: 09/13/2011)
2 NOTICE that this electronically-filed case has been assigned to Judge Robert J. Jonker (elc) (Entered: 09/13/2011)
SUMMONS NOT ISSUED as to defendants Gregory Bauer, Kevin Belk, Grand Rapids, City of, Bill Schuette ; none provided (elc) (Entered: 09/13/2011)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Michael J. Steinberg on behalf of plaintiffs Ernest Sims, James Speet (Steinberg, Michael) (Entered: 09/13/2011)
3 (DISREGARD) PROPOSED SUMMONS to be issued re 1 (Steinberg, Michael) Modified text on 9/13/2011. Phone call from attorney's office. They will correct and refile. (kw) Refiled as entry 4 . Modified text on 9/13/2011 (kw). (Entered: 09/13/2011)
4 PROPOSED SUMMONS to be issued re 1 (Steinberg, Michael) (Entered: 09/13/2011)
SUMMONS ISSUED as to defendants Gregory Bauer, Kevin Belk, Grand Rapids, City of, Bill Schuette and returned to attorney for plaintiff (kvt) (Entered: 09/14/2011)
5 MOTION for partial summary judgment ( responses due 10/17/2011;), MOTION for permanent injunction, MOTION for preliminary injunction, MOTION for declaratory judgment by plaintiffs Ernest Sims, James Speet; (Korobkin, Daniel) (Entered: 09/15/2011)
6 BRIEF in support of MOTION for partial summary judgment MOTION for permanent injunction MOTION for preliminary

09/16/2011 09/21/2011 09/22/2011
10/05/2011 10/10/2011 10/11/2011 10/17/2011
10/17/2011
10/20/2011

injunction MOTION for declaratory judgment 5 filed by Ernest Sims, James Speet (Attachments: # 1 Exhibit A - Thompson v. City of Chicago)(Korobkin, Daniel) (Entered: 09/15/2011)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Ann Maurine Sherman on behalf of defendant Bill Schuette (Sherman, Ann) (Entered: 09/16/2011)
7 SUMMONS returned executed; All Plaintiffs (Aukerman, Miriam) (Entered: 09/21/2011)
8 CERTIFICATE OF SERVICE by plaintiffs Ernest Sims, James Speet re Brief in Support of a Motion, 6 , MOTION for partial summary judgment MOTION for permanent injunction MOTION for preliminary injunction MOTION for declaratory judgment 5 (Aukerman, Miriam) (Entered: 09/22/2011)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Margaret P. Bloemers on behalf of defendants Gregory Bauer, Kevin Belk, Grand Rapids, City of (Bloemers, Margaret) (Entered: 10/05/2011)
9 ANSWER to complaint 1 with affirmative defenses by Bill Schuette(Sherman, Ann) (Entered: 10/10/2011)
10 ANSWER to complaint 1 with affirmative defenses and jury demand by Gregory Bauer, Kevin Belk, Grand Rapids, City of(Bloemers, Margaret) (Entered: 10/11/2011)
11 RESPONSE in opposition to MOTION for partial summary judgment MOTION for permanent injunction MOTION for preliminary injunction MOTION for declaratory judgment 5 and Request for Summary Judgment for Non-Movant Under Fed. R. Civ. P. 56(F) filed by Bill Schuette (Sherman, Ann) (Entered: 10/17/2011)
12 RESPONSE in opposition to MOTION for partial summary judgment MOTION for permanent injunction MOTION for preliminary injunction MOTION for declaratory judgment 5 filed by Gregory Bauer, Kevin Belk, Grand Rapids, City of (Attachments: # 1 Exhibits 1-3, # 2 Exhibits 4-6)(Bloemers, Margaret) Modified double text on 10/18/2011 (elc). (Entered: 10/17/2011)
13 ORDER setting Rule 16 scheduling conference: Rule 16 scheduling conference is set for 12/7/2011 at 04:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; status

10/31/2011 12/01/2011 12/07/2011 12/08/2011 02/16/2012
02/17/2012 02/21/2012 02/24/2012

report due by 12/1/2011 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 10/20/2011)
14 REPLY to response to motion 5 for Patial Summary Judgment filed by Ernest Sims, James Speet (Aukerman, Miriam) (Entered: 10/31/2011)
15 JOINT STATUS REPORT submitted for filing by plaintiffs Ernest Sims, James Speet (Aukerman, Miriam) (Entered: 12/01/2011)
16 MINUTES of scheduling conference held before Judge Robert J. Jonker (Court Reporter: Glenda Trexler) (Judge Robert J. Jonker, mil) (Entered: 12/07/2011)
17 CASE MANAGEMENT ORDER AND NOTICE OF MOTION HEARING regarding document number 5 and 11 : motion hearing is set for 2/16/2012 at 3:30 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; (Judge Robert J. Jonker, ymc) (Entered: 12/08/2011)
18 MINUTES of motion hearing re 5 MOTION for partial summary judgment MOTION for permanent injunction MOTION for preliminary injunction MOTION for declaratory judgment filed by Ernest Sims, James Speet held before Judge Robert J. Jonker (Court Reporter: Glenda Trexler) (Judge Robert J. Jonker, ymc) (Entered: 02/17/2012)
19 (DISREGARD) ORDER re 5 ; further briefing due no later than 3/2/2012; and any response due no later than 3/9/2012; 5 will be taken under advisement ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) Modified text per chambers request on 2/21/2012 (ald). (Entered: 02/17/2012)
20 ORDER re 5 ; further briefing due no later than 3/2/2012; and any response due no later than 3/9/2012; 5 will be taken under advisement ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 02/21/2012)
21 TRANSCRIPT of Motion Hearing held 02/16/2012 before Judge Robert J. Jonker; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary

03/02/2012
03/02/2012 03/09/2012 08/24/2012 09/10/2012
09/13/2012
09/24/2012 09/25/2012 10/02/2012

and this transcript will be made available via PACER after the release of transcript restriction set for 5/24/2012 ; redaction request due 3/16/2012 (Court Reporter: Trexler, Glenda (517)819-0396) (Entered: 02/24/2012)
22 RESPONSE in opposition to MOTION for partial summary judgment MOTION for permanent injunction MOTION for preliminary injunction MOTION for declaratory judgment 5 filed by Gregory Bauer, Kevin Belk, Grand Rapids, City of (Bloemers, Margaret) (Entered: 03/02/2012)
23 SUPPLEMENT re Brief in Support of a Motion, 6 by defendant Bill Schuette (Sherman, Ann) (Entered: 03/02/2012)
24 REPLY to response to motion 5 for partial summary judgment, supplemental briefing filed by Ernest Sims, James Speet (Aukerman, Miriam) (Entered: 03/09/2012)
25 OPINION AND ORDER granting 5 motion for partial summary judgment ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 08/24/2012)
26 STIPULATION and PROPOSED ORDER re Entry of Final Judgment on First and Third Counts of Complaint under Rule 54(B) and Entry of Permanent Injunction Barring Enforcement of MCL 760.167(1)(h) by defendants Gregory Bauer, Kevin Belk, Grand Rapids, City of, Bill Schuette, plaintiffs Ernest Sims, James Speet (Attachments: # 1 Proposed Order)(Aukerman, Miriam) (Entered: 09/10/2012)
27 ORDER granting STIPULATION 26 re Entry of Final Judgment on First and Third Counts of Complaint under Rule 54(B) and Entry of Permanent Injunction Barring Enforcement of MCL 760.167(1)(h); signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 09/13/2012)
28 NOTICE OF APPEAL re 27 by defendant Bill Schuette (Sherman, Ann) (Entered: 09/24/2012)
RECEIPT: USCA appeal fee re 28 by defendant Bill Schuette in the amount of $455.00, receipt number LN001513 (pjw) (Entered: 09/25/2012)
CASE NUMBER 12-2213 assigned by the Sixth Circuit to appeal 28 (mkc) (Entered: 10/04/2012)

08/14/2013 09/05/2013 10/22/2013
10/23/2013

29 JUDGMENT of USCA re appeal 28 ordering that the district court's judgment is affirmed (ald) (Entered: 08/14/2013)
30 MANDATE of USCA re appeal 28 affirming the district court's judgment (ald) (Entered: 09/06/2013)
31 PROPOSED STIPULATION and ORDER Dismissing Plaintiffs' Remaining Claims by defendants Gregory Bauer, Kevin Belk, Grand Rapids, City of (Bloemers, Margaret) (Entered: 10/22/2013)
32 ORDER granting STIPULATION 31 dismissing Plaintiffs' remaining claims ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 10/23/2013)

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