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Challenge to Indy panhandling code proceeds in federal court

July 27, 2018

A federal lawsuit against the Indianapolis police chief will continue after a district court judge declined to abstain from hearing the case alleging a local ordinance restricting panhandling is unconstitutional.

Ginger Tichy, a homeless person who supports herself through panhandling, filed the federal suit against Indianapolis Metropolitan Police Chief Brian Roach after she was found in violation of section 431-702 of the Indianapolis-Marion County Municipal Code. That section prohibits pedestrians from panhandling or other forms of solicitation from drivers at intersections.

The Marion Superior Court issued an injunction requiring Tichy to comply with the ordinance in May 2017, then found her in contempt six days later when she continued to violate the ordinance. Tichy responded with a motion for relief from judgment, and the Marion Superior Court ruled in January 2018 that the ordinance is “without legal effect” because it violated pre-emption principles in the Indiana Constitution and the Indiana Home Rule Act. Despite that, Roach has continued to enforce the ordinance.

While the state proceedings were pending, Tichy also filed the instant federal lawsuit in the Indiana Southern District Court, Ginger Tichy v. Chief of the Indianapolis Metropolitan Police Department, 1:17-cv-04426. The federal suit also alleged constitutional violations and requested declaratory judgment that the ordinance is unconstitutional, as well as a prospective injunction against future enforcement.

Roach, however, argued that Senior Judge Sarah Evans Barker should dismiss the case for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. Alternatively, he urged Barker to abstain from hearing the case under the Wilton-Brillhart doctrine.

But Barker disagreed that Rooker-Feldman required her to dismiss the case, noting instead that Tichy’s complaint does not seek appellate relief from state judgment, but rather challenges the constitutionality of the statute.

“At the time Tichy filed her complaint in this Court, she had requested relief from judgment in state court. She does not ask this Court to similarly relieve her of past judgment,” Barker wrote. “Rather, she askes this Court to declare section 431-702 unconstitutional and enjoin Roach from future enforcement. Therefore, Rooker-Feldman is inapplicable.”

The senior judge also declined to exercise her abstention discretion, noting that despite the state court ruling, Roach has continued to enforce the ordinance against panhandlers.

“If Roach followed up this state decision by ceasing enforcement of the ordinance, then this Court would likely abstain because the state would have shown that it not only can resolve Tichy’s core complaint, but has in fact done so,” she said. “But this Court is compelled to take judicial notice of the fact that Roach continued to cite Tichy for violating the ordinance even though the Marion Superior Court ruled in the January hearing that it violates state preemption doctrine.”

“Given this,” Barker said, “Roach falls short of meeting his burden to show that the state proceedings are better suited to resolve the issues at hand.”

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