FREE SPEECH — Should a panhandler be allowed to sit down as he begs passersby if standing up would be hazardous to his health?  A case going to trial in Palo Alto challenges a city ordinance that, in effect, says no sitting and no exceptions for medical reasons. 

As Will Oremus reports in the Palo Alto Daily News

The trial of Palo Alto's most prominent panhandler began Tuesday with Assistant City Attorney Donald Larkin telling the jury that Victor Frost repeatedly and knowingly violated the city's sit-lie ordinance.

"This is a very simple case," Larkin said in a brief opening statement in Santa Clara County Superior Court. "It's about following the rules, even those rules we disagree with."

Frost's public defender, Mark Dames, argued the case is really about a man with a medical condition trying to exercise the same rights that other panhandlers have. He said Frost relies on charity to get by, but cannot stand up to beg for very long because he suffers from congestive heart failure.

The trial is the culmination of two years of attempts by the city to get Frost to comply with a controversial ordinance that bars people from sitting or lying down on public sidewalks in the downtown area during business hours. He is the first to be cited under the sit-lie rule, which the city council passed in 1997 and expanded to the area around Whole Foods in 2007.

Charged with six misdemeanor violations in spring 2008, Frost could in theory face six months in jail and a $1,000 fine for each count. In practice, jail time is rarely given for municipal code violations.

Frost, 61, has been a portly fixture on the streets of the city's business districts for years. No longer homeless, he lives in a subsidized apartment in Redwood City but prefers to panhandle in Palo Alto, where he has also run unsuccessfully for city council several times.

While other panhandlers over the years have obeyed police officers' orders to move along, Frost has stood firm, saying it's his First Amendment right to sit on the sidewalk. His attorneys sought to have the case thrown out on constitutional grounds, but Santa Clara County Superior Court Judge Lucy Koh in March ordered him to stand trial. She left open the possibility that the defense could challenge the ordinance on appeal.

It is an unusual trial. Because Frost is charged with violating city code, not state law, the city attorney's office is prosecuting the case instead of the district attorney's office. Larkin said it is the first case he has tried in his career.

On Tuesday, he called on two police officers, who testified that they warned Frost he was breaking the rules before citing him. Larkin showed the jury a video shot from the police cruiser of Sgt. Natasha Powers as she issued Frost a citation on April 15, 2008.

Cross-examining the witness, Dames asked Powers if she was aware of an exemption in the sit-lie ordinance for medical emergencies. She said she was. He also asked whether she knew Frost had a medical condition, and she said she did.

After Sgt. Gary Brooks gave testimony similar to Powers', Dames asked whether the sit-lie ordinance was aimed at panhandlers. Brooks said that was his understanding, noting that it could also be enforced against people who got drunk and passed out on the sidewalk.

In fact, the ordinance is framed as a pedestrian safety measure and not an anti-panhandling law. Brooks did say he was aware it does not apply to people who panhandle while standing up.

Asked by Dames whether there was room on the sidewalk for pedestrians to get around Frost, Brooks said there was.

In his opening statement, Dames made a point of telling the jury that the sidewalks on Homer Avenue are wide and Frost sits on a small milk crate.

It's unclear just how Dames plans to argue that Frost didn't violate the letter of the law, however.

Frost sat through Tuesday's proceedings in jeans and a red T-shirt, his posture relaxed. "All this for panhandling," he muttered at one point, before the jury came in.

The trial is expected to continue Thursday with testimony from Palo Alto police Lt. Sandra Brown.

While challenging the citations in court, Frost has continued his practice of panhandling on Homer Avenue, and the city stopped citing him months ago. He also sometimes sets up his crate on California Avenue, where the sit-lie rule does not apply, but he says the donations are best outside Whole Foods.