Earlier this month, a federal appeals court upheld a St. Louis ban on sharing “potentially hazardous” foods with the homeless and less fortunate, Courthouse News reports. The ban was challenged by Pastor Raymond Redlich and a colleague, who believe they have both a duty and a right to provide food to people in need.
The suit grew out of a Halloween 2018 incident in which police ticketed Redlich and Christopher Ohnimus, both employees of New Life Evangelical Center in St. Louis, and ordered them to appear in court for handing out bologna sandwiches to homeless people. The citation alleged the pair was “‘operating [without a] permit,’ and that probable cause for arrest existed for ‘operating prepared food [without] proper permits.'”
While the city later agreed not to prosecute the pair, Redlich and Ohnimus sued anyways to protect their right to continue sharing food with those in need. They allege the city ban violates their rights under the First and Fourteenth Amendments—including their freedom of religion, expression, and association.
Last year, the U.S. District Court in St. Louis ruled in favor of the city. This month, the Eighth Circuit Court of Appeals upheld the lower court ruling, holding “government regulation of ‘inherently expressive’ conduct—such as distributing sandwiches to the homeless—does not necessarily violate the First Amendment if the regulation furthers ‘an important or substantial government interest’ unrelated to the suppression of free expression.”
“Some might think that the suit is a lot of baloney, but it… raises interesting issues,” St. Louis city attorney Julian Bush told St. Louis Today in 2019, shortly after the lawsuit was filed against the city.
The lawsuit is not baloney at all. But the St. Louis ordinance—and the courts’ deference to it and those enforcing it—are pure hogwash.
The ordinance contains several absurd requirements that do not pertain to and should not apply to people donating food to needy people. For example, as the ruling details, the ordinance (which has been amended since 2018) requires a person to provide a 48-hour notice to the city related to their “event;” mandates the purchase of a $50 temporary food-service permit to distribute potentially hazardous foods; and requires the presence of a handwashing station, potable water, and “food-grade washtubs.” All this to hand out some sandwiches?
Alas, the ordinance also hates sandwiches. Most of them, at least. It prohibits the serving of any sandwiches that contain meat, poultry, eggs, or fish, citing food-safety justifications. But the same ordinance allows the serving of potentially hazardous foods “requiring limited preparation, such as hamburgers and frankfurters,” apparently because those foods “only require seasoning and cooking.” (Note: a bologna sandwich requires neither cooking nor seasoning.) Apparently, St. Louis and the Eighth Circuit believe “sandwiches containing MEAT, POULTRY, EGGS, or FISH” are less likely to cause foodborne illness than hamburgers and hot dogs, which are, after all, “sandwiches containing MEAT.”
If that makes little or no sense, then chew on this excerpt from the Eighth Circuit’s ruling:
It is an imminently reasonable proposition that a municipality has a substantial interest in preventing the spread of illness or disease among its citizens, including its homeless population. And the evidence before the district court belies Appellants’ claim that the City failed to make an adequate showing with respect to the interest served by the Ordinance. The City introduced evidence that it has traced incidents of illness among its homeless population to illegally distributed food dating back to 2012.
Beyond taking liberties with the English language (using “imminently” in place of “eminently”), it appears the Eighth Circuit did nothing more than take the government and its “evidence” at their word. (That’s particularly maddening for many reasons, not the least of which is that an appellate court hearing a case brought to it after a lower court grants summary judgment is required to do much the opposite.)
Now, about that “evidence.” The Eighth Circuit relied on reports of purported cases of foodborne illness among the homeless in St. Louis that the city says it traced to “illegally distributed food dating back to 2012.” But exhibits in the case show those “cases” involve a former police officer who appears to have a preternatural ability to diagnose cases and causes of foodborne illness among St. Louis’s homeless population.
In an August 2012 email titled “Parking Problems in Downtown West,” which focuses mainly on parking and noise complaints, former St. Louis police officer Kenneth Kegel referenced the existence of “complaints” from unnamed “residents that on weekends, groups are coming downtown and providing food to the homeless.” Kegel also referred in the email to “occasions where individuals have gotten sick as a result of the provided food.”
That’s it. That’s the relevant evidence the court relied on. In his email, Kegel does not declare nor imply firsthand knowledge of such foodborne illness cases. Neither does he cite the name of any person or persons who may have such knowledge. Nor does he claim he or any medical professional diagnosed any symptom(s) of foodborne illness—or distinguished any potential sources or causes of such illnesses—something even experts find increasingly challenging.
In other words, the evidence provided to the courts by Kegel is at best, pure speculation that is entirely irrelevant to the immediate case. Even if everything Kegel wrote is 100 percent true, for a court to rely on it isn’t just laughable. It’s eminently unreasonable and unfair.
When it comes to sharing food with the homeless, such unreasonableness and unfairness aren’t confined to St. Louis, as I’ve detailed many times (including here and here). Even as the ranks of homeless and others in need swell today, senseless bans on sharing food with them persist. Such bans are maddeningly common, as I detail in my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, citing examples in New York City, Philadelphia, Las Vegas, Birmingham, Houston, Dallas, San Antonio, and elsewhere.
“Sharing food with people who are hungry is one of the most pro-social things imaginable,” Freedom Center of Missouri attorney David Roland, who represents Redlich and Ohnimus, told me this week. “Maybe the Eighth Circuit didn’t see it that way in this case, but we will continue the fight to make sure that people can freely provide food for the needy.”
Continuing the fight, Roland says, means his clients are seeking a re-hearing. Given the righteousness of their case and cause and the courts’ shoddy treatment of the plaintiffs, they sure deserve one. And that ain’t no bologna.
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