Dallas’ median ban is not targeting the homeless, the lawsuit says

Dallas city attorneys say a ban on people standing on the sidewalks is perfectly legal and does not discriminate against the homeless or panhandlers.

They said Tuesday in a response to a lawsuit filed in December by the Texas Civil Rights Project, SMU Dedman School of Law’s First Amendment Clinic and Dallas-based law firm Waters, Kraus & Paul. It’s also why they’re asking a federal judge to ignore the lawsuit’s request to block the ban.

Assistant City Attorneys Ana Marie Jordan and Kathleen Fones say the five-month-old Dallas ordinance was developed largely because of the city’s commitment to the Vision Zero initiative. There are a number of strategies that have been adopted by cities internationally to prevent all traffic deaths and greatly reduce serious road-related injuries by 2030.

The City Council approved a resolution committing to Vision Zero in December 2019 and has a plan to get there by December 2021. The city adopted that plan in June 2022.

The filing is the city’s first formal response to a lawsuit challenging the median ban, saying it is unconstitutional and will disproportionately affect people experiencing homelessness. The new rule subjects people to fines of up to $500 for standing or walking on roadways that are less than 6 feet wide, in the middle of streets without medians, and in clear zones such as bike lanes and road shoulders.

“To address a perceived increase in pedestrian presence on or near roadways where pedestrians should not be present, the City Council, in consultation with the City Department of Transportation, adopted the challenged ordinance,” the city’s response to a preliminary injunction to block the ordinance from becoming enforced.

Jordan and Fones said the City Council relied on information gathered by the Department of Transportation to proactively stop people from dying on the streets of Dallas.

The ordinance exempts permitted workers, as well as pedestrians crossing the street directly, giving or receiving emergency assistance, or on the median while following police directions.

The lawsuit was filed on behalf of four Dallas-area residents: a military veteran without stable housing, another who previously experienced homelessness, a local activist and a professor at the University of Texas at Arlington. All four individuals either regularly solicit donations from drivers, give donations, or engage in political speech from the medians.

Federal appeals courts have struck down similar ordinances in Oklahoma City, Albuquerque, New Mexico and Portland, Maine, after finding they violated free speech. Courts have found that activities conducted on medians, such as panhandling and protesting, are protected by the Constitution.

The Dallas restriction was approved by the City Council in October.

City officials since at least 2021 have publicly touted the restriction as a way to deal with complaints stemming from people panning while in the median or in the middle of streets where there is no median. In the months leading up to the city council’s approval on Oct. 26, it was publicly described more as being driven by traffic safety concerns for pedestrians.

The lawsuit against Dallas cites city presentations and council members’ public statements among arguments that the median ban targets people dealing with panic.

“The ordinance is the product of a years-long effort orchestrated by Dallas council members to score political points by attacking people who engage in the unpopular speech of asking for financial assistance,” the lawsuit states. “It rests on a manufactured, post-hoc public safety rationale unsupported by any evidence showing that people engaging in expressive activities in areas affected by the ordinance pose any threat to pedestrian and road safety.”

In its response, the city objected to the city’s memos and presentations being submitted into evidence, saying they are “irrelevant” and that Dallas’ efforts to address homelessness “are a separate and distinct challenge.”

“While these exhibits demonstrate that the City was aware that enforcement of the challenged ordinance would likely affect homeless persons seeking in regulated areas, such awareness does not, as a matter of law, affect the First Amendment analysis,” BLANK said.

They said the preliminary injunction should be denied because the ordinance affects people’s actions not speech, medians that would be affected are meant to regulate traffic not be public forums, and the ordinance is not directed at anyone in particular since it applies to everyone.

“The restriction leaves significant alternative public places throughout the city of Dallas that are not inherently dangerous and where plaintiffs are free to solicit donations, assist individuals experiencing homelessness, and advocate on political issues,” the city’s response said. “These locations include publicly accessible sidewalks, parks and medians wider than six feet.”