Portland’s six-month-old ban on loitering and panhandling in street medians is unconstitutional, a federal judge ruled Wednesday.
It’s not clear whether the city will appeal, but a critic of the ban said the ruling could keep communities around the country from moving forward with similar measures to restrict panhandling.
“I think it will send a very strong message that they ought to think twice about this type of regulation,” said Zachary Heiden, legal director for the American Civil Liberties Union of Maine.
The ordinance, which took effect in August, prohibited people from sitting or standing in street medians, whether to ask for money or not. City officials decided not to strictly enforce the ordinance while the ACLU lawsuit was pending.
Portland’s attorneys defended the ban by arguing that it was a public safety measure, because standing in street medians is inherently dangerous. Officials cited complaints about panhandlers who were walking through traffic, sometimes while drunk.
The ACLU of Maine challenged the ordinance on behalf of two political activists and a woman who stood on medians holding a cardboard sign asking for money. The ACLU’s Boston-based attorneys argued that the ordinance was too broad in restricting free speech, and that police could instead use existing state law to address any public safety hazards.
U.S. District Judge George Singal, who heard arguments in November, found the ordinance unconstitutional.
In his decision, Singal noted that city officials testified that the ordinance did not apply to anyone who walked onto a median to plant campaign signs. In that regard, the ordinance was not content-neutral – a key test for determining constitutionality.
“The ordinance favors one category of speech, campaign signs, over all others and permits only those messages in the traditional public forum,” Singal wrote. “A law may no more favor one type of message because of agreement with it than it may disfavor a message because of disapproval.”
City officials said they were disappointed with the ruling.
“While we respect the court’s decision, we are of course very disappointed,” Danielle West-Chuhta, Portland’s city attorney, said in a prepared statement. “I am not able to respond in detail at this time as we have not had an opportunity to fully review the judge’s ruling and are still in the process of determining next steps, including whether or not to appeal the decision.”
Police Chief Michael Sauschuck said police will abide by the judge’s decision.
“Safety has always been our primary concern,” he said in a prepared statement.
Panhandlers applauded the ruling.
“I think this is awesome,” said Laurel Merchant, 42, who has been homeless for 18 months.
Merchant, bundled up Wednesday afternoon in a ski hat, a jacket and a scarf, stood on a median strip at the intersection of Marginal Way and Preble Street Extension with a cardboard sign that read: “Disabled and Homeless, Anything Helps, God Bless.”
“It’s my right to be out here,” she said.
Merchant, who grew up in Livermore Falls, said she has been panhandling for the past six months. Merchant said she is deaf in one ear, and her left arm is paralyzed so she can’t work. She uses the money that motorists give her to buy food and toiletries, she said.
Merchant said she doesn’t use the money to buy alcohol or drugs, but some panhandlers do, so drivers have to be careful about who receives their money.
Drivers give her $60 to $100 on a good day, she said, and as little as $10 on a bad day.
On Wednesday, as temperatures dropped into the low 20s and her teeth began to chatter, Merchant said she had collected about $25 in nearly four hours on the narrow strip of pavement between the Intermed and AAA buildings.
Merchant, who came to Portland about 10 years ago, said the court ruling is important because “it’s a human right to be able to stand here, and especially important for people like me who can’t get a job.”
The battle over the ordinance thrust Portland into a legal debate over free-speech rights that is spreading around the country as a growing number of communities restrict when and where people can ask for money.
Lewiston and Biddeford have considered restricting aggressive panhandling. Biddeford officials were moving forward with a ban on the use of street medians until the lawsuit in Portland led them to put the measure on hold.
In 2012, a federal judge struck down a Michigan law banning begging in public places in general, saying it violated First Amendment protections for free speech.
Worcester, Mass., was sued last year over restrictions more like Portland’s. Its ban on panhandling in medians was upheld, but an appeal is pending.
Heiden, with the ACLU of Maine, said restrictions like Portland’s on the use of street medians have since been proposed by communities in New Hampshire and Montana. Those communities may now reconsider, in light of the Portland ruling, he said.
The idea has spread, he said, because increasing poverty is leading more people to stand on street corners and medians to ask for help.
The three Portland residents who were plaintiffs in the case told the judge in November that the ban limited their right to speak on public property.
Political activists Michael Cutting and Wells Staley-Mays told Singal they used medians occasionally for anti-war protests. Allison Prior said she used medians to solicit money.
Staley-Mays, 66, said Wednesday that he is “very happy” with the ruling. He said he was shocked that the ordinance won support from the City Council, especially Mayor Michael Brennan and Green Independent councilors David Marshall and Kevin Donoghue.
“How could they have not seen this was a free-speech issue?” said Staley-Mays.
“I think it was all about classism,” not public safety, he said. “(Homeless people) make middle-age people feel uncomfortable.”
Randy Billings can be contacted at 791-6346 or at: