In the united states district court for the district of

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Case 1:15-cv-00281 Document 1 Filed 02/10/15 USDC Colorado Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Case No.________________ ABBY LANDOW, JEFFREY ALAN, SUSAN WYMER, LAWRENCE BEALL,

individually and on behalf of all others similarly situated, GREENPEACE, INC., NANCY YORK,

Plaintiffs, v. CITY OF FORT COLLINS, Defendant.

CLASS ACTION COMPLAINT

1. The City of Fort Collins is engaged in a campaign to stop poor persons from asking for charity on the sidewalks, streets, and other public places in the city. Although city officials acknowledge that solicitation is speech that is protected by the First Amendment, Fort Collins is nevertheless actively and vigorously enforcing an unconstitutional Ordinance--section 17-127 of the Fort Collins Municipal Code, titled "Panhandling" (hereinafter, "Panhandling Ordinance" or "Ordinance")--that turns constitutionally-protected expression into a crime. In recent years, police officers have issued dozens and dozens of citations for alleged violations, and the City Attorney's office actively prosecutes and obtains convictions for these violations in the Fort Collins Municipal Court. The number of police-issued citations is dwarfed by countless

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additional oral warnings and directives that police have issued, ordering poor persons to cease their solicitation communications and "move on."

2. For years, the targets of this enforcement campaign have overwhelmingly been poor persons who are engaged in solicitation that is courteous, polite, nonthreatening and nonaggressive, such as the solicitation that Plaintiffs Abby Landow, Jeffrey Alan, Susan Wymer and Lawrence Beall carry out. Their requests for charity pose no risk to public safety, and their communications requesting assistance are squarely protected by the First Amendment.

3. Until recently, the City has looked the other way when canvassers for a recognized nonprofit organization--Greenpeace, Inc.--have stopped pedestrians to solicit contributions. That has now changed. Fort Collins police have recently put Greenpeace on notice that its canvassing activities in downtown Fort Collins violate the Panhandling Ordinance.

4. In this action Plaintiffs ask this Court, pursuant to 42 U.S.C. ? 1983, for emergency injunctive relief to stop Fort Collins from invoking or relying on its Panhandling Ordinance to violate the First Amendment right of Plaintiffs to engage in peaceful and nonthreatening charitable solicitation in public spaces in Fort Collins. Plaintiffs also seek a declaratory judgment, a permanent injunction, and ? for certain plaintiffs ? nominal damages.

JURISDICTION AND VENUE 5. This action arises under the Constitution and laws of the United States, including 42 U.S.C. ? 1983. This Court has jurisdiction pursuant to 28 U.S.C. ?? 1331 and 1343. 6. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. ?? 2201, 2202.

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7. Venue is proper in the District of Colorado pursuant to 28 U.S.C. ? 1391(b). The Defendant resides within the District of Colorado, and the events described in this Complaint occurred in the District of Colorado.

PARTIES Plaintiffs

8. Plaintiff Abby Landow is a resident of Fort Collins. She is homeless and destitute. She has peacefully and politely solicited charity from passersby in Fort Collins in a manner and in situations that violate the challenged Ordinance as written or as Fort Collins interprets and enforces it. She wants to be free to resume her peaceful solicitation without fear that police will enforce the challenged Ordinance against her.

9. Plaintiff Jeffrey Alan is a resident of Fort Collins. He is homeless, disabled, and poor. He has peacefully and politely solicited charity from passersby in Fort Collins in a manner and in situations that violate the challenged Ordinance as written or as Fort Collins interprets and enforces it. He wants to be free to continue his peaceful solicitation without fear that police will enforce the challenged Ordinance against him.

10. Plaintiff Susan Wymer is a resident of Fort Collins. She is disabled and homeless. She has peacefully and politely solicited charity from passersby in Fort Collins in a manner and in situations that violate the challenged Ordinance as written or as Fort Collins interprets and enforces it. She wants to be free to continue her peaceful solicitation without fear that police will enforce the challenged Ordinance against her.

11. Plaintiff Lawrence Beall is a resident of Fort Collins. He is homeless and poor. He has peacefully and politely solicited charity from passersby in Fort Collins in a manner and in

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situations that violate the challenged Ordinance as written or as Fort Collins interprets and enforces it. He wants to be free to continue his peaceful solicitation without fear that police will enforce the challenged Ordinance against him.

12. Plaintiff Greenpeace, Inc. ("Greenpeace") is a non-profit corporation that carries out fundraising and outreach activities in Fort Collins. Plaintiff Greenpeace wants to be free to continue its peaceful solicitation of donations without fear that police will enforce the challenged Ordinance against its canvassers.

13. Plaintiff Nancy York is a 76-year-old resident of Fort Collins. She sometimes gives money to poor persons who approach her and ask for help. The challenged Ordinance prohibits persons from approaching Ms. York and asking for assistance solely because she is over sixty years old. Ms. York wants to continue receiving messages of solicitation that the challenged Ordinance forbids. Defendant

14. Defendant City of Fort Collins is a municipal corporation incorporated in the State of Colorado. It adopted and enforces the Panhandling Ordinance that is challenged in this case. It is the policy and practice of Fort Collins--through the actions of its police officers, its city prosecutor, and its municipal court--to interpret and enforce the Ordinance in the unconstitutional manner that is described and challenged in this Complaint.

15. The acts and omissions of Fort Collins, and its police officers, prosecutors, and municipal court, are carried out under color of state law.

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FACTUAL BACKGROUND The Panhandling Ordinance

16. The enforcement campaign challenged in this case is carried out under the authority of Section 17-127 of the Fort Collins Municipal Code, which is titled "Panhandling."

17. The Panhandling Ordinance consists of two parts. In subsection (a), "Panhandle" is defined as "to knowingly approach, accost or stop another person in a public place and solicit that person, whether by spoken words, bodily gestures, written signs or other means, for a gift of money or thing of value."

18. Subsection (b) makes it unlawful for any person to "panhandle" in any of eleven circumstances:

(1) Any time from one-half (1/2) hour after sunset to one-half (1/2) hour before sunrise;

(2) In a manner that involves the person panhandling knowingly engaging in conduct toward the person solicited that is intimidating, threatening, coercive or obscene and that causes the person solicited to reasonably fear for his or her safety;

(3) In a manner that involves the person panhandling knowingly directing fighting words to the person solicited;

(4) In a manner that involves the person panhandling knowingly touching or grabbing the person solicited;

(5) In a manner that involves the person panhandling knowingly continuing to request the person solicited for a gift of money or thing of value after the person solicited has refused the panhandler's initial request;

(6) In a manner that involves the person panhandling knowingly soliciting an at-risk person;1

1 Subsection (a)(1) defines an "at-risk person" as: [A] natural person who is sixty (60) years of age or older, under eighteen (18) years of age, or who is a person with a disability. A person with a disability shall mean, for purposes of this Paragraph (1), a natural person of any age who suffers from one (1) or more substantial physical or mental impairments that render

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(7) On a sidewalk or other passage way in a public place used by pedestrians and is done in a manner that obstructs the passage of the person solicited or that requires the person solicited to take evasive action to avoid physical contact with the person panhandling or with any other person;

(8) Within one hundred (100) feet of an automatic teller machine or of a bus stop;

(9) On a public bus; (10) In a parking garage, parking lot or other parking facility; or (11) When the person solicited is entering or exiting a parked motor vehicle, in

a motor vehicle stopped on a street, or present within the patio or sidewalk serving area of a retail business establishment that serves food and/or drink. 19. Section 1-15 of the Fort Collins Municipal Code provides that violation of the Panhandling Ordinance is a misdemeanor punishable by imprisonment up to 180 days and a fine of up to $2,650. 20. In this action, Plaintiffs bring a facial and as-applied challenge to six subsections of the Fort Collins Panhandling Ordinance. The challenged portions of the Ordinance are Subsections (b) (1), (5), (6), (8), (9), (10) and (11). Plaintiffs seek relief from the challenged prohibitions of the Ordinance as written and also as Fort Collins interprets and enforces those prohibitions.2

the person significantly less able to defend against criminal acts directed toward such person than he or she would be without such physical or mental impairments. A substantial physical or mental impairment shall be deemed to include, without limitation, the loss of, or the loss of use of, a hand or foot; loss of, or severe diminishment of, eyesight; loss of, or severe diminishment of, hearing; loss of, or severe diminishment in, the ability to walk; and any developmental disability, psychological disorder, mental illness or neurological condition that substantially impairs a person's ability to function physically or that substantially impairs a person's judgment or capacity to recognize reality or to control behavior. 2 Plaintiffs do not challenge subsections (2), (3), (4) or (7).

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