Assignment 1

M E M O R A N D U M

To: You, Associate Counsel, Bomont Civil Liberties Union

From: D. Gewirtzman, Legal Director, Bomont Civil Liberties Union

Re: Possible Equal Protection Challenge to Panhandling Ban

Hi there! We’ve got a new potential client and I need your help. Here’s the story:

The town of Bomont recently passed an ordinance making it illegal for “any individual to sit or stand, in or on any unpaved median or any median of less than 36 inches, for any period of time.” We’ve got a potential plaintiff that wants to challenge the constitutionality of the statute as a violation of the Equal Protection Clause.

Background on the Ordinance

The day before the Bomont City Council debated and unanimously adopted the ordinance, Councilwoman Shaw Moore was interviewed in the Bomont Gazette, the town paper. He stated that “residents tell me all the time that their quality of life is destroyed every morning as they drive through intersections and see panhandlers, and I’m going to finally do something about it.” At the Council hearing the next day, after Moore proposed the ordinance, residents praised the Council for “finally dealing with the panhandling issue.” Another resident spoke and said “I hate seeing those homeless people out there – they’re gross and disgusting and we shouldn’t have to see people like this in our community.” A couple of residents spoke out against the ordinance, calling it a “blatant effort to vilify the poor and homeless and chase them out of town.” 

The Final Ordinance

Shortly before the Council voted to approve the law, Councilwoman Moore amended the ordinance to include two provisions: 

First, he added a “purpose” provision to the ordinance stating that the purpose of the law is to “protect persons from the traffic hazards and potential personal injuries that they are or may be exposed to on the medians and to protect drivers of vehicles from potential legal liability.” Apparently, traffic safety concerns were not mentioned at any time during the hearing, and the city has provided no empirical data to support the assertion that persons standing on medians create a traffic safety risk.

Second, in response to concerns from the Firefighters Benevolent Association, Moore added a single exception to the median ban allowing representatives from “certified non-profit associations to stand on medians during daylight hours for the purpose of raising charitable funds.” The Association runs an annual fundraiser on a median near the local firehouse, and was concerned that the ordinance would curtail its ability to raise needed funds.

The Potential Plaintiff

Yesterday, we were approached by Ren McCormack, an adult resident of Bomont. McCormack is homeless and unemployed, and receives no government benefits or assistance. In order to obtain basic resources like food and clothing, he regularly stands on medians in Bomont and solicits donations from passers by. Last week, McCormack was arrested for violating the ordinance and would like to challenge the law’s constitutionality. 

I need your help to determine whether we have a viable challenge under the Equal Protection Clause. Specifically, I’d like you to articulate any reasonable Equal Protection arguments we might raise (along with any relevant doctrine), and the arguments the city is likely to bring when defending the ordinance. I do not need you to assess the probability of success on the claim – I’m only interested in learning more about each side’s potential arguments. While we may have other potential constitutional claims, including claims under the First Amendment and the Due Process Clause, I’ve asked other associates to analyze those potential claims. 

Your submission should follow these guidelines:

• You should base your analysis solely on portions of the constitutional text and case law that we have covered in class up to and including Class 5.

• In order to have your analysis reviewed, you must submit an electronic copy of your analysis with your name on it to your TA on or before the beginning of class on Thursday, February 1.

• You must use Times New Roman 12-point font, a one-inch margin on all sides, and double-spacing. 

• Your analysis must not exceed 800 words, you do not need to include a restatement of the underlying facts, and you are not required to Bluebook citations. 

• Your analysis should reference any relevant portions of the Constitution and at least two cases we’ve read in class. 

• Please state your name at the start of the memo, and do not consult any materials beyond the Chemerinsky casebook and your class notes. 

• You are free to discuss the assignment with any current Constitutional Law II students or your TA, but any written work you submit must be entirely your own. This means you may not consult the written work of other students, you may not review the written work of other students, you may not use Chat GPT or any large language models or generative AI systems, and you may not receive any feedback from anyone on the written work you complete prior to submission.

Thanks for your help, and I look forward to reading your memo!