Comment on Proposed Repeal of Panhandling and Sleeping Ordinances

Dear District 19 Residents:

I want to provide some information, and my intended vote, on two items before the Common Council, one tomorrow (9/19/23) and one planned, potentially, for 10/3/23.

Agenda item #43 (Legistar #79532) is on the Common Council agenda tonight for a vote. It is in regard to MGO 24.12, which prohibits panhandling. It is proposed to be repealed because it has been unenforceable since the Supreme Court’s decision in 2015 that panhandling is legal. I reached out to Police Chief Barnes about this proposed action, and he concurred that it is no longer enforceable. Given this understanding, I will support its repeal.  It is worth noting that MGO 12.325 is an ordinance that was carefully developed by the City to comply with the 2015 Supreme Court decision, and it will remain in place. It is designed to address the safety issues associated with individuals standing in the median areas of busy roads in Madison.

Not on today’s Common Council agenda but likely on the next Common Council agenda, is the repeal of MGO 23.07(6) of the Madison General Ordinances and amending Section 23.07(13) and 1.08(3) of the Madison General Ordinances to remove associated references related to sleeping or possessing items related to sleeping on the property of others (Legistar #79504). There is a host of potential unintended consequences if this ordinance is repealed, stemming from the fact that this ordinance currently requires a priori permission to be given whereas the anti-trespassing ordinance that would remain in place requires only that someone leave private premises after being asked to do so—that is, after they are already there. I believe that requiring advance permission to sleep on someone’s private property, something that typicallly occurs overnight, acts as a deterrent. Even if the ordinance has not been frequently invoked, it is important to codify the norm that sleeping on private property without an owner’s permission is not legal. I have heard from victims of traumatic violence about their opposition to the repeal of this ordinance, among many others who provide a range of scenarios where this repeal could go sideways. Chief Barnes does not support the repeal of this ordinance either. What’s more, the City itself has policies in place to prevent people from sleeping on public property (e.g., limiting overnight park hours, limitations on how public parking facilities can be used, limitations on how buses can be used [section 11.03]), so it is unclear to me why the repeal of an ordinance that gives private property owners a right to expect that no one can legally sleep on their property without advanced permission is being proposed when the City itself has ordinances which pre-empt this activity from occurring on its own property. Also, it is already legal to invite others to sleep on your own property if this is something you are in a position to offer.

As always, I will keep an open mind and consider your thoughts, but I think it is possible for two things to be true--compassion and resources can be provided to those who are unhoused AND making it legal for anyone to sleep on private property as long as the owner is unaware and hasn't provided advanced permission can lead to serious unintended consequences that compromise the safety of both a property owner and an individual sleeping without permission on private property.