Durango’s downtown sidewalks draw many to the Central Business District. Shoppers, diners, strollers, workers, residents, tourists, dogs, musicians, meter readers and those seeking a helping hand all have relatively equal access to the public throughways, and as divergent as this list’s members are, they are compelled to set aside their difference and share the public sidewalks, however annoying one group may find the other. Some, though, press the boundaries beyond others’ comfort and local officials step in – as has occurred recently in a growing number of incidents involving begging on downtown sidewalks. Discomfort aside, though, most such behavior is protected, and the Durango Police Department has rightly acknowledged as much.
A city ordinance says, “it shall be unlawful for any person to loiter for the purpose of begging,” and from several angles, it is easy to understand why. Being accosted for change, leftovers or political discourse is not necessarily on most pedestrians’ agenda when ambling along public walkways. Nevertheless, such behavior is very much at the heart of our deeply held national commitment to freedom of speech and the right to peaceably assemble. And as we are often reminded, those rights are seldom tested by agreeable behavior. That is what makes them so essential to reinforce.
The American Civil Liberties Union did just that last week when it sent the Durango Police Department – which had been issuing citations to loiterers along Main Avenue sidewalks – a letter asking officers to cease enforcing the ordinance because it intrudes on First Amendment rights. The ACLU backed its position by recounting its successful effort to strike a statewide statute that included the same loitering language, on the same grounds. The DPD promptly heeded the request and was correct in doing so.
It is a challenging conflict for the city to address. People who choose to spend time seeking contributions on public sidewalks – whether in the form of tips for music played or other performance art, or as a straight donation – are within their constitutional rights to do so, as the ACLU rightly pointed out. Those who travel along such sidewalks preferring not to give such contributions are within their rights to be irritated by the request. Business owners, whose storefronts are the locales for the interplay, are within their rights to ask for it to stop. But barring a verbal or physical altercation between any of these parties, the police are not necessarily the avenue to resolution, as the DPD recognized after the ACLU flagged the issue. Instead, it is a matter of civil discourse among the parties to the conversation.
That is not to say the matter is always settled so easily, and it is an issue of ongoing tension. For now, though, the Durango anti-loitering ordinance appears to overstep protections the U.S. Constitution offers to all citizens, regardless of how vexing one’s behavior might be to another. If the city is to make another legislative attempt at addressing the problem, the First Amendment’s breadth can provide a backdrop for framing the issue. In the meantime, the Durango police have responded appropriately and promptly by revising their enforcement practices.
