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Working for Change

Crusading attorney Mark Weinberg is stepping up for panhandlers' rights, but at the rate he's going, he'll be on the street soon himself.

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Mark Weinberg eases toward the Loop on a congested Kennedy Expressway, the gas needle of his old Honda hovering just above empty. He's hoping, perhaps against reason, to get downtown in time to find Jessie Thompson working the rush-hour crowd.

Weinberg is Thompson's lawyer. He's a youthful 39, unconcerned about the possibility of running out of gas, animated even at 7:45 in the morning. He says Thompson usually sits in the doorway of a bridge tower on Madison near Canal shaking a paper cup, but when we arrive the only traces of him are the upside-down milk crates he sits on.

Across the street six people in bright yellow jackets pass out sample boxes of a new "head-and-chest formula" to the steady stream of commuters exiting the old Northwestern station. A 61-year-old man is parked in a wheelchair a few feet away, bundled up in a puffy jacket and a hat with earflaps, a small blue blanket stretched across his lap. A plastic cup containing a few coins and bills rests near him on the sidewalk.

The man's name is Johnnie Green. He served in the military and worked as a CHA security officer before diabetes claimed his legs from the knees down. He says he hasn't seen Thompson today, then adds, "Z-Man is always harassing him." Z-Man is a police officer whose last name begins with Z.

As Green talks, he periodically interrupts himself to greet an acquaintance or thank a benefactor. "Hey, sweetie, how you doin'?" "Hey, thank you, partner. Have a good day." "Hey, Rita, let me pick up this cup."

Green's greetings elicit smiles. He's polite and doesn't appear to be bothering anyone. Yet according to section 8-4-010(f) of the municipal code, he's committing a crime--panhandling is disorderly conduct.

Weinberg looks over at the yellow jackets, watching them push a product into people's hands, and says of the powers that be: "They don't mind the commerce. They just don't like the needy."

Weinberg has made it his mission to force the city to get rid of the panhandling ordinance. In his short career as a practicing attorney, he's involved himself only in cases he's cared deeply about. He's lost just about all of them. "Mark's extremely smart and extremely energetic," says his longtime friend Gary Caplan, an attorney for Sachnoff & Weaver who's helping him on the panhandling case. "But sometimes being emotional and passionate isn't the best way to litigate."

Despite his track record, Weinberg was full of hope when he filed the suit on behalf of panhandlers. He'd come across the panhandling ordinance while researching another case. "I saw that," he recalls, "and I was like, 'No way. No way is the city denying beggars free-speech rights.'"

Weinberg didn't have a special interest in the homeless, but as someone who'd benefited from an affluent upbringing and an Ivy League education, and who'd been raised, like many other American Jews of his generation, with the specter of the Holocaust, he felt a responsibility to do something about abuses of vulnerable populations.

The legal issues seemed straightforward. Courts in other states had struck down similar ordinances on the grounds that they were unconstitutional. Weinberg thought it would be an open-and-shut case. He never imagined it would lead him to abandon his own profession.

Weinberg grew up in Highland Park and studied German history at Yale. By going into law, he broke a family tradition; for three generations all the men had become commodities traders. After graduating from the University of Chicago law school in 1988, he landed a job at a corporate firm downtown, but soon realized he wasn't cut out for the position. "I was the world's worst young associate," he says proudly. "Too much curiosity. Not enough discipline."

A lifelong hockey enthusiast, he quit the firm in 1991 to found the "Blue Line," an alternative to the programs usually sold to Blackhawks fans. It was rife with satire, gossip, and irreverent humor, and its writers took special care to skewer Bill Wirtz, the team's multimillionaire owner. Weinberg sold the "Blue Line" outside the stadium on game nights with help from vendors he hired from the nearby Henry Horner Homes. He got arrested before one game on what he calls the "bullshit charge" of obstructing pedestrian traffic. "There wasn't a soul on the street," he says. The case was eventually dismissed.

In 1992, after the Blackhawks refused to furnish "Blue Line" writers with press credentials granting them access to the games and locker rooms, Weinberg unsuccessfully sued the team for antitrust violations, though he's still appealing. He was back in court a few years later with another antitrust suit after the United Center opened with a policy that banned outside food. Weinberg argued that the United Center's owners, Bill Wirtz among them, had implemented a policy that put the peanut vendors who worked outside the stadium out of business. The judge disagreed, saying that the vendors had the rest of the city to work.

The "Blue Line" folded in December 1997, and Weinberg shifted from satire to serious muckraking. He wrote a book about Wirtz, accusing him of corporate crimes and misdeeds ranging from bribing public officials to defrauding a close friend's daughter. Weinberg published Career Misconduct himself in December 2000, then jauntily went to work selling it on Wirtz's turf. United Center security guards wouldn't have it. They ordered him to pack up, citing an ordinance that prohibited selling merchandise within 1,000 feet of the United Center. Weinberg protested, seeing no difference between selling a book and selling the "Blue Line" or any other publication. He ended up getting arrested and later filed a First Amendment suit against the city, claiming that its distinction between books, which could not be sold on the public way, and newspapers, which could, was constitutionally invalid. The judge didn't buy his argument.

It was while researching this case that Weinberg stumbled upon the panhandling ordinance--and a new reason for outrage. He thought the ordinance was both unconstitutional and absurd. "You can ask for directions," he says, "but the moment you ask for a quarter, somehow the city thinks that is disorderly conduct?" There's nothing inherently disruptive about begging, he explains. After all, passersby can simply ignore a request for change. And he readily acknowledges that if someone crosses the line into unlawful behavior--throws a punch or obstructs pedestrian traffic--then he should be held accountable under the appropriate law, whether he's panhandling, hawking the Sun-Times, or passing out a new head-and-chest formula. Weinberg points out that the city permits bell-ringing Salvation Army Santas to ask for money, but panhandlers who do the same thing--though often less obtrusively--risk unwelcome attention from police. Is the city sending the message that begging is OK--but only as long as you get someone else to do it for you?

Incensed, he called a former "Blue Line" vendor to see if he knew any panhandlers. Weinberg asked the seven men who showed up to meet him at a west-side liquor store if any of them had ever been arrested for begging. "Well, these guys started pulling out tickets left and right," he recalls. "And I-bonds."

Weinberg was especially drawn to Jessie Thompson, a "sweet, quiet" man who'd grown up in Mississippi without learning to read. Thompson claimed to have been arrested hundreds of times for begging. He told Weinberg that police would sometimes stop him while he was simply walking down the street and then use the presence of change in his pockets to nab him.

Weinberg began talking to panhandlers everywhere he went and found that, by and large, their stories sounded the same. He says most panhandlers rarely speak to people, because they know a disruptive or confrontational approach would be bad for business. And yet police are "just arresting them willy-nilly. Or if they don't arrest them, they write them a ticket or tell them that what they're doing is illegal and that they have to stop. And when a cop tells you to stop, you stop. So there's all this chilling of speech going on."

When panhandlers get arrested, he says, they're typically detained for 12 to 24 hours. Upon release, they're given an I-bond and a notice informing them of their court date. If convicted, they face a maximum $500 fine, but their cases rarely, if ever, get that far. "More often than not," Weinberg says, "police tell them, 'Don't bother coming to court, because we're not going to come to court and we don't prosecute these crimes anyway.'" A police department spokesperson insists that's not standard--or acceptable--practice. It seemed to Weinberg that the city was routinely punishing people who hadn't been convicted of anything--by ticketing and even jailing them--and then denying them their day in court.

One day last summer Weinberg walked around the Loop with a video camera. He shot footage of Thompson, who was sitting at his Madison and Canal post, quietly shaking a paper cup. As if on cue, Z-Man came along, handcuffed Thompson, motioned for Weinberg to stop taping, and hauled Thompson off in an unmarked car. The scene perfectly illustrated something Weinberg had come to believe: panhandlers weren't the ones doing the harassing--rather they were the ones getting harassed.

Weinberg filed a class-action suit against the city on September 6, which claims that the panhandling ordinance violates the First Amendment (he's since cited rulings by Florida, California, and New York federal courts and the Massachusetts Supreme Court that say begging is protected under the First Amendment; other states have upheld some restrictions on it). The suit also alleges that the city subjects panhandlers to unconstitutional searches and seizures and deprives them of due process.

When Gary Caplan learned about the suit, he persuaded his firm to allow him and another attorney, Margaret Gembala Nelson, to help on the case pro bono. Later Weinberg also enlisted the help of veteran civil rights attorney Tom Morrissey.

A city law department spokesperson, Jennifer Hoyle, was quoted in the Tribune the day after Weinberg filed the suit as saying that the ordinance was rarely enforced--and only when panhandlers were actually being disorderly. But Weinberg's three named plaintiffs--Jessie Thompson, Nadine Buchanan, and Ronald Davis--say they've been repeatedly ticketed and arrested even though they panhandle peaceably. Thompson says he thanks generous passersby but otherwise speaks only when spoken to. Buchanan claims she never approaches anyone, that she typically sits on the ground asking, "Do you have any change to spare?" Davis also claims to stay out of people's way, saying he simply asks pedestrians, "Can you help the homeless?"

Through a search of the court clerk's database of arrests, Weinberg found that from September 1999 until September 2001 police had made around 1,700 panhandling arrests. Hoyle says there's no way to know how many of these cases were followed through, and when Weinberg studied a random sample of 50 cases he found that not one had been prosecuted. And his plaintiffs, who've been arrested 28 times in the past two years, have never had their cases prosecuted either.

"Prosecutors always have discretion on whether to prosecute someone or not," Weinberg says. "It all depends on the evidence. But you cannot arrest somebody with no intent to prosecute. You could say, 'Well, isn't it better for them that they're not prosecuted?' Maybe in some sense, because if they were prosecuted then they would have all these fines on their record which they couldn't pay." Yet panhandlers are likely to have failed to show up in court, and to have failed to pay the $75 fine for not showing up, so if they ever get arrested for a more serious offense a judge would likely have them jailed until their trial.

"This case really opened my eyes to how screwed poor people are," Weinberg says. He now thinks the panhandling ordinance is symptomatic of a nationwide trend to criminalize poverty, and he'd like to see his lawsuit inspire both a rethinking in public policy and a change in attitude toward the poor. He believes we've become a society that kicks people when they're down.

Vagrancy laws are as old as the country, according to Donald Whitehead, executive director of the National Coalition for the Homeless. But advocates for the homeless usually trace the beginning of a mean-spirited backlash against the poor to the mid-80s, when deinstitutionalization of the mentally ill and government cuts in social services led to a dramatic rise in homelessness. As the homeless population became more visible, cities began reviving dormant statutes and creating quick-fix legislation in an attempt to hide the problem. In the fall of 1994 the Utne Reader reported that at least 50 cities were considering or had already adopted legislation specifically targeting the homeless.

Despite some successful legal challenges, the trend has only got worse. "Calling the police is becoming the standard response to homelessness," according to a report released in January by the National Coalition for the Homeless and the National Law Center on Homelessness & Poverty, which have been tracking the trend for six years. Seattle police can fine or arrest homeless people simply for sitting or lying in public areas, according to the report. Los Angeles is considering an ordinance against urinating in public that carries a six-month jail term for second-time offenders. More than a dozen cities have outlawed camping or sleeping in parks. And police in many cities conduct sweeps in business districts, near tourist attractions, and in areas where political or sports events are scheduled to take place.

The report gives special recognition to Chicago for being one of the "12 meanest cities." Whitehead says that's because Chicago's homeless are subjected to an "ongoing pattern of harassment." He specifically mentions the closing off of Lower Wacker Drive, the attempts to remove homeless people from CTA property, and the detention of homeless people with no intent to prosecute them.

"What is it about these panhandlers that offends people so much?" Weinberg says. "I think they offend our moral sensibilities. There's this idea they are not self-sufficient, that they are not taking care of themselves, that they don't abide by work ethics that our society holds dear. They also offend, I think, our aesthetic sensibilities. They offend Mayor Daley's beautification campaign." And, he says, we mistake their very presence for a threat. "We don't like their neediness, and we don't want to see them. It makes us uncomfortable."

Weinberg has just finished reading The Anatomy of Disgust, by University of Michigan law professor William Ian Miller. "This guy's point is that there's good reason for a lot of disgust," he says. "For example, a dead skunk in the middle of the road--why does that disgust us? Well, we are disgusted innately by certain things that carry the threat of disease. This is a protective, Darwinian type of response. In the same way, maybe we're disgusted by these homeless people because they do offend our moral sensibilities and we innately know that a society that freely allowed this type of activity would degenerate in the long run. But I think we have to get over our feelings of disgust and recognize their humanity."

Weinberg brings Jessie Thompson an orange soda every now and then and says he would take a hungry panhandler to lunch, but he usually doesn't hand over his spare change. In part, he says, that's because "even a few bucks, five bucks, to me makes a difference in my life right now." And in part that's because he believes it's naive to think of money as a panacea. "A lot of people have given up," he says. "Some of these people have been beaten down to such an extent, some are mentally ill, some are just exhausted, some are drug addicts--whatever the case is--but they are in their place permanently." But though it may not always be within our power to solve their problems, he says, "It's within our power to treat them properly, decently."

Weinberg's complaint asks for unspecified monetary damages for the plaintiffs--not because he thinks the money will turn their lives around, but because he thinks they've been grievously wronged and, like other people who've been denied their rights, they should be compensated for it. He doubts he'll get much for his clients even if he wins, because juries typically weigh pain and suffering and loss of reputation in awarding damages. And, he says, try persuading a jury that being jailed for a few hours has harmed a homeless person's reputation. He worries that some jurors might even consider locking up panhandlers a charitable deed--at least then they escape the weather and get a bologna sandwich.

Not long after Weinberg filed the suit, the city said it would stop enforcing the panhandling ordinance while the case was pending. The law department's Jennifer Hoyle says that wasn't because the city had seen the error of its ways; rather, the city thought the moratorium would "allow the case to move along more quickly." Weinberg had asked the judge to issue a preliminary injunction to prohibit the city from enforcing the ordinance, and the city wanted to prevent the need for a hearing on the matter.

But Weinberg believes its decision was a ploy to discourage civil rights attorneys from challenging city policies. He points out that following a recent U.S. Supreme Court ruling, a government body that voluntarily changes a policy in response to a lawsuit--without admitting wrongdoing--can deprive the opposing attorneys of fees: because there's no judicial order, there's technically no prevailing party. Weinberg has no other cases and no steady income. He says he's sliding into debt, and without a victory or settlement agreement, he won't get paid for his work on the panhandling case.

Nevertheless, he thinks there should be a court order stopping the city from enforcing the ordinance. "Years it's been going on," he says. "You can't just turn that on a dime--and that's one of the reasons we need an injunction. It will serve a kind of educative function as well, to get the word out. Now you have some dinky little police directive that was handed out to all the watch commanders, who one morning probably said, 'Oh yeah. These panhandlers have some legal representation now, so you gotta be careful what you do to them.' The city wants to say that's enough to stop the issuance of an injunction. But that doesn't change a culture."

One day in December, while stopped at a red light on the Kennedy exit ramp at Irving Park, Weinberg spotted a woman holding a cardboard sign that read "HOMELESS MOTHER WITH TWO CHILDREN. PLEASE HELP."

"Hey," he shouted. The woman looked over tentatively. "Can I ask you a question?"

The light turned green. Weinberg started to introduce himself. The driver behind him blasted the horn. Weinberg cut across a lane, pulled onto the shoulder, and parked. A few seconds later the woman leaned in through the window. Her name was Jeannine.

"I'm a lawyer, actually," Weinberg said. "We don't have any money, by the way." He told her about the lawsuit.

"Yeah, I heard about that," she said,

nodding.

He asked if she'd ever been arrested.

"I had a run-in with a detective yesterday," she said. The police had stopped her on the street, and a female detective had gone through her pockets. Jeannine said she'd bought her jacket from a junkie and that a piece of a needle was stuck in the lining. "Shit," she said, "if I'd have known I would have told her." The needle pricked the detective. "I was told that if I voluntarily take a blood test, they'll just simply take me back to the station and write me a simple panhandling ticket and let me go."

Weinberg bristled. The city had said it would stop enforcing the panhandling

ordinance.

But Jeannine didn't catch a panhandling case. She was charged with possession of a hypodermic needle. "It wasn't even on a syringe," she complained.

Weinberg wanted her to sign an affidavit saying she'd been threatened with a panhandling ticket, and asked if she'd be around for a while.

"Most likely," she said. "I'm having a rough time making money today. I'm a little bit hesitant 'cause they're giving me a hard time." Just a few hours earlier, she said, a cop had kicked her off another ramp, telling her to "get lost."

Later Weinberg said that meeting Jeannine had helped him realize a couple of things. First, that threatening to fine or arrest people for panhandling--or telling them to "get lost"--can be just as inhibiting as an arrest. Second, the ordinance, by making panhandling a crime, gives police probable cause to conduct pat-down searches--which helps perpetuate racial inequities in the criminal-justice system. "Most of these panhandlers are black, and the reason that blacks are arrested more than whites isn't that blacks use drugs more than whites," he says. "It's that police practice is structured in such a way that they are able to frisk blacks more often and get away with it."

At a mid-January hearing Weinberg presented Judge Nan Nolan with a list from the Cook County clerk's office showing that there'd been a dozen arrests under the panhandling ordinance since the city had agreed to stop enforcing it. He also submitted statements from people who'd been ordered to stop panhandling under threat of arrest. He explained to the judge why he thought the threat of enforcement was just as bad as actual enforcement and complained that the city had refused to provide him with basic information such as how many tickets had been issued in the last two years. He wanted the judge to issue an injunction ordering the city to stop enforcing the ordinance.

City attorney Aimee Anderson argued that an injunction wasn't necessary. The city had already stopped enforcing the ordinance, she said, and if a few police officers were still arresting panhandlers, "that doesn't represent city policy."

Weinberg thought the judge had everything she needed to issue an injunction, but Anderson questioned his interpretation of the arrest records--he later discovered that only four of the dozen were actual arrests--and demanded an opportunity to cross-examine the panhandlers who'd signed statements.

The hearing wasn't going well. Weinberg got visibly annoyed. His voice quavered with emotion. He put words in the judge's mouth, clearly irritating her.

At one point one of the more seasoned attorneys Weinberg had recruited openly disagreed with his strategy and stepped in to ask the judge for a break. The break lasted for more than 15 minutes, and during it Weinberg rebuked Anderson, telling her, "Don't bluff. Don't insult us."

The judge concluded the hearing by telling the parties to come back March 7 and 8, at which time Weinberg would have to present enough evidence to persuade her that an injunction was necessary.

"The city doesn't have a legitimate side," Weinberg exclaimed after the hearing. "What the city has are obstructionist tactics--delay tactics that are just meant to exhaust you." For a moment he looked truly pained. "And it just surprised me. It just breaks my heart."

Later, sitting in a basement cafeteria a few blocks from the federal building, Weinberg wondered what he'd got himself into. He said he was despairing and that he was too upset to eat lunch. He filled a cup at the soda machine and, noticing that I wasn't taking advantage of a free-soda deal, set his drink on my tray when we got to the register.

"The city doesn't say, 'How can we resolve this so we don't harm these people's civil rights?'" he said. "That's not how they think. They're like, 'How are we going to prevent these lawyers from doing anything good for these people?'" He said he didn't know if he would ever file another suit. "It just breaks my heart," he said again. "Because I see all these horrible things that are being done out there, and somebody should really do something about them. I know that there are very few people willing to do something about them, and I feel like because I see them I should be the one." Again he looked pained. "But the deck is stacked way against a guy like me doing it."

A couple of weeks after the hearing Weinberg was still steamed. He sent me E-mails bemoaning the city's tactic of turning cases "into anti-intellectual pissing matches." He'd grown more discouraged. "The nuts-and-bolts of litigation are incredibly disheartening to me....You can spend three or four months and tens maybe hundreds of hours just trying to get documents that everyone knows are relevant but the City claims are irrelevant....In the end, what I may be discovering [is] that the law is the absolute worst place for an idealist to be."

Gary Caplan understands his friend's frustration, saying, "He wants the endgame to include everything and happen right away." But the way Caplan sees it, Weinberg has already accomplished "an excellent thing": the city no longer seems to be routinely enforcing the panhandling ordinance. "The vast majority of homeless are better off today than they were before he filed the suit," he says.

Weinberg's not so sure. "Whatever I do to vindicate their First Amendment rights, the city is going to come up with something else," he said in early February, adding that police were still harassing panhandlers. Some had been arrested "for congregating on bridges, using this bullshit archaic statute that was meant to apply to animals on unstable bridges back in the early 1900s." He noted that two of his plaintiffs, Thompson and Davis, recently had been arrested by officers who'd commented on the lawsuit, and he feared the arrests were simply retaliation. He was especially concerned about Thompson, who hadn't been at his morning-rush-hour post for a week.

Businesses in some locations still had signs in their windows, bearing the insignia of the Lincoln Park Chamber of Commerce and CAPS, that urged their customers to "Say no" to beggars because "panhandling is illegal." And according to the city's law department, Alderman Ed Burke was backing a new ordinance against "aggressive panhandling" modeled on laws that had held up in other cities. The City's Commission on Human Relations, a group of 12 mayoral appointees, issued a statement opposing the new ordinance, saying "there are ample provisions in the law" to address abusive behavior by panhandlers and there's "simply no need to prohibit begging," but the commission has little, if any, sway with the City Council. (I called Burke's press secretary, Donal Quinlan, to find out about the ordinance, but he said Burke had "no comment." When I asked him why the alderman wouldn't be eager to tell Chicagoans about something he was proposing on their behalf, Quinlan said that it had been nice talking to me and abruptly hung up.)

Despite his frustration, Weinberg is constructing new cases in his head. One is on behalf of panhandlers in Oak Park, who need a license to beg; another is on behalf of prisoners who are denied good-time credit if they've ever been accused or convicted of domestic violence. But then he says someone else will have to take on those cases. "I'm not gonna get into another quagmire like this and destroy myself."

He says he's already looking for other work. He recently filled out an application to be a substitute teacher and is considering going back to school to get a degree in education. He thinks he'd like to teach high school English.

When Weinberg started pulling the panhandling lawsuit together, he got the impression that the panhandlers he talked to appreciated his concern but found him naive--"Here comes some overeducated white guy thinking he can change things." Now he's afraid they were right.

Art accompanying story in printed newspaper (not available in this archive): photos/Nathan Mandell.

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