The City Council voted 14-1 Wednesday to approve an ordinance that makes standing in the median a $500 fine. But questions about the constitutionality of that ordinance could land the city in court.
Cities can’t ban panhandling outright because of a Supreme Court ruling that considers the act protected speech under the First Amendment. When the plan to ban people standing or walking in medians less than 6 feet wide was first introduced months ago, the measure was offered as almost a workaround to the SCOTUS ruling. In an interview, ACLU Texas attorney Savannah Kumar said she believed the vote could open the city of Dallas to a legal challenge.
“It treats the constitutional rights of Dallas residents as expendable, and it does threaten the First Amendment rights of all Dallas residents,” she said.
Supporters on Wednesday contended that the ordinance was more about public safety and not panhandling, despite the fact that city staff said only one pedestrian fatality had anything to do with a median. There were either 45 or 53 fatalities so far this year—city staff gave two different numbers—and all but that one involved pedestrians crossing the road without using crosswalks. The Council was told that passing the ordinance would fit with the city’s Vision Zero plan, which has the ambitious goal of reducing pedestrian and traffic deaths to zero.
The city can assess a $500 fine to anyone ticketed for the offense and issue an arrest warrant for people who don’t pay that fine. Dallas police said apprehending people in the median would be a low priority, and the city marshal’s office said they won’t be patrolling for it. Interim City Marshal David Pughes said city marshals had the discretion to move an individual from the median and direct them to resources, too.
“Punitive, we already know, doesn’t work. We did that many times previously,” he said. “This is more of that holistic approach.”
The ordinance also addresses standing or walking around in the roadway, and a great deal of the discussion Wednesday circled back to the more aggressive panhandlers who walk among cars at intersections. These people were frequently referred to by council members as “median dwellers.” But there are already city ordinances in place regarding pedestrian roadway activity, and those ordinances came into play repeatedly during the George Floyd protests in 2020.
Fourteen council members voted in favor of the ban, all citing public safety concerns. The lone no vote was from Councilman Adam Bazaldua, who said he believed the ordinance’s intent was to target the homeless and criminalize poverty.
“It is extremely disingenuous to stand here and tell us that this is about public safety. This is about NIMBYism,” Bazaldua said. “I know that there are people who take advantage of the system and if you think we can differentiate that by sending out enforcement versus the mom that is out there actually asking for $1 to feed her kids? Shame on us.”
The ordinance does have carve-outs for things like helping someone during an accident, pausing while walking across a street, or doing work in the median. But the city may still run into trouble. Oklahoma City passed a similar ordinance, lost a lawsuit to the American Civil Liberties Union of Oklahoma, and had to repeal it.
Kumar said Dallas’ ordinance echoes what Oklahoma City had to walk back. Kumar said that not only does the ordinance prevent the protected speech around panhandling, but it also prevents people from using medians as a place to protest, which is also constitutionally protected.
“The ordinance is so substantially similar to one that has already been deemed unconstitutional in federal court,” she said. “Because there is that precedent already in place elsewhere and a federal court had already deemed that similar ordinance unconstitutional—and even the Supreme Court of the United States didn’t hear it—that means that a challenge to this ordinance is very possible.”