Thursday, April 24, 2014
Portland’s six-month-old ban on loitering and panhandling in street medians is unconstitutional, a federal judge ruled Wednesday.
Laurel Merchant panhandles Wednesday in the median at Preble Street Extension and Marginal Way. Merchant said she was glad to hear the city’s ban had been struck down. “It’s my right to be out here,” she said.
Tim Greenway/Staff Photographer
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.
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