June 18, 2018
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Federal judge: Must Portland make sure panhandlers have access to high-traffic, good money locations?

By Seth Koenig, BDN Staff

PORTLAND, Maine — In a case over constitutional rights in Portland, a federal judge was left Tuesday to ponder whether forcing panhandlers to move from median strips to lower traffic — and less lucrative — locations constituted an infringement on their rights to free speech.

The same judge grappled with how literally the Portland ordinance at the center of the lawsuit should be interpreted, as city police have said that they’ll still allow political candidates to stop long enough to post temporary campaign signs along those same median strips.

The American Civil Liberties Union of Maine and the law firm Goodwin Procter, representing three Portland residents, is suing the city over its controversial new ordinance that prohibits people from stopping in median strips to demonstrate with political signs or ask passing drivers for money.

In an accelerated one-day trial Tuesday before U.S. District Court Judge George Z. Singal, city attorney Trish McAllister argued the ordinance is strictly about public safety, saying panhandlers and demonstrators are free to hold signs on sidewalks and public plazas, among other places in the city.

McAllister and Portland Police Chief Michael Sauschuck, called as a witness for both sides in the case, said in court Tuesday that police have received complaints about individuals being drunk in the median strips, falling into the paths of moving cars and, in some cases, attacking drivers who refuse to hand over donations.

But Kevin Martin, an attorney from Goodwin Procter’s Boston office who represented the plaintiffs Tuesday in court, said the city could lean on several other laws to address the safety threats without infringing on free speech rights. Martin argued that city ordinances already outlaw so-called aggressive panhandling, and state statutes prohibit disorderly conduct, blocking traffic and assault.

“Reaching into a car and punching someone is a crime — it wouldn’t matter if it was in the street, on the median or in a field,” Martin said during his questioning of Sauschuck, referring to one particular complaint received by police in recent years.

The City Council passed the ordinance in July, one year after rejecting the same ordinance proposal. In 2012, councilors who voted against it worried about the free speech implications and said they did not see enough evidence that the median strip demonstrations posed a safety problem.

Veteran City Councilor Ed Suslovic — one of the city’s witnesses and the chairman of the council’s Public Safety, Health and Human Services Committee — told the court Tuesday he received more correspondence from constituents about the median strip prohibition than any other issue in his years of public service.

“People [were] basically telling me, ‘If you don’t do something, somebody’s going to get killed,’” Suslovic told the court.

Martin argued in court Tuesday the city should have done something different. He said stepped-up police patrols at trouble intersections or an ordinance that more specifically prohibited intoxication or belligerent activity in median strips could have allowed peaceful panhandlers and demonstrators to continue taking advantage of their free speech rights on the public median strips.

Suslovic told the court, however, that because it’s not illegal to be intoxicated in public, for instance, a person standing in a median strip drunk and “teetering” cannot be ordered by police to move until that person has actually fallen into the roadway. At that point, the city councilor argued, the person officially would be blocking traffic under state law, but it might be too late to save his or her life.

Martin pointed out that his team’s review of more than 200 complaints with Sauschuck in preparation for the trial revealed that none was from political protesters or panhandlers who were standing calmly in the traffic islands. He argued that those individuals should not be punished because of the illegal actions of others.

But Sauschuck and Portland Public Services Director Michael Bobinsky, another city witness, told the court that cars regularly careen over median strips, meaning anyone standing in those locations is in constant danger, no matter how they’re behaving. McAllister entered into evidence several images of median strip traffic signs bent and mangled by stray cars.

“The median strip area is an inherent dangerous area,” Sauschuck told the court. “Motor vehicles are deadly weapons, whether it’s because of reckless driving or just weather in Maine. A human body doesn’t stand a chance in a scenario like that.”

Martin countered that the chief’s concern in that scenario is with cars, not with median strips.

“Every year, tens of thousands of people are killed in automobile crashes, on sidewalks or in crosswalks,” he said. “But the city of Portland did not pass an ordinance prohibiting driving or being in crosswalks.”

With other applicable laws already on the books and the dangerous activity in question possible in places other than median strips, Martin argued the city should not strip demonstrators and panhandlers of their highest visibility locations.

Alison Prior — an unemployed, homeless woman who was a plaintiff in the case along with political activists Wells Staley-Mays and Michael Cutting — said she was harmed by the ordinance because she was forced to leave the Portland median strips where she could reliably make $20 to $25 a day. Prior said she’s been forced to pay $10 each day for round-trip bus fare to panhandle in the median strips in Biddeford.

“There’s so much competition for the two or three non-median spots where people can make money and be seen,” Prior said in court. “[Sidewalk locations are] definitely not as lucrative as being on the median. … I did try one other spot on the sidewalk and literally did not make a penny.”

As Singal was weighing the case at the end of the day, he pondered whether that was the city’s problem.

“What’s the free speech? Is it the sign telling people there are homeless people who need help, or is the free speech in how much money is collected?” the judge said. “If we double the homeless [population], would the city be obligated to find new places for people to solicit in addition to the median strips?”

After leaving the courthouse Tuesday, Zachary Heiden, legal director of the ACLU of Maine, told reporters the amount of money panhandlers make does provide a measure of how effective their constitutionally protected speech is, and is relevant to the case in that way.

“The right to speak includes the right to an audience,” Heiden said. “It’s not enough for the city to say, ‘You can express free speech, but you have to do it far away from people.’”

Attorneys for both sides will file additional briefs in about a month, followed by rebuttals two weeks later. Martin said he anticipates a ruling by Singal by late January or early February.

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