Friday, April 18, 2014
PORTLAND — Police are using a new city ordinance to crack down on panhandling in street medians, but they aren’t issuing civil summonses and fines as prescribed in the law.
In this July 16, 2013 file photo, a man panhandles on a median on the corner of Marginal Way and Forest Avenue in Portland. Portland officers are using criminal trespass notices – and the threat of jail time – to keep chronic panhandlers off the medians.
Tim Greenway / Staff Photographer
Officers have instead used criminal trespass notices – and the threat of jail time – to keep chronic panhandlers off the medians.
City officials said recently that police have summoned no one for violating the panhandling ordinance, which took effect Aug. 15. They neglected to say that police have issued five criminal trespass notices, leading to three arrests.
“Police are not enforcing the ordinance directly,” said Merritt Heminway, an attorney who represented a homeless man arrested for panhandling in a median. He said criminal trespass notices are excessive because they restrict where people can go, and carry the threat of arrest.
Portland’s ordinance does not say explicitly that panhandling on a median is trespassing or a crime, but any violation of the ordinance creates an underlying offense and allows police to issue a criminal trespass notice. Violation of an order not to trespass – even on public property – is a crime and grounds for arrest.
The punishment for violating the ordinance is a civil citation, similar to a parking ticket, costing the offender $100 to $500. Violating a criminal trespass notice is a Class E crime, punishable by as much as six months in jail.
The notices are effective for six months, prohibiting the targeted people from being on any median in the city.
Michael Stoops, a community organizer with the Washington, D.C.-based National Coalition for the Homeless, said police are criminalizing homelessness nationally. However, “I think it is unique (that) the city of Portland is going after these offenses with a more serious charge,” Stoops said.
Police officers’ use of criminal trespass notices has been criticized by advocates for the poor.
A no-trespass order in a dispute between a landlord and tenant in Westbrook led to a federal lawsuit against the city in July. The American Civil Liberties Union of Maine said at the time that police departments are misusing the law, in part to keep homeless people out of parks and squares.
In Portland, a 54-year-old homeless man, Leroy Gove, was issued a criminal trespass notice on Aug. 27 for holding a sign in a median at the intersection of Congress and St. John streets.
When officers found Gove standing in the same median several days later, he was arrested. He pleaded guilty to trespassing and spent 18 hours in jail.
Gove was arrested again Sept. 11, a day when Heminway was working as a court-appointed defense lawyer. He convinced Gove to fight the charge.
Heminway said he was prepared to argue that the broadly worded criminal trespass notice violated Gove’s First Amendment right to assembly. At trial, he was going to contest the trespass notice and request that the judge rule on the constitutionality of the ordinance itself, he said.
An assistant district attorney decided not to pursue the case, so Heminway never made that argument.
“I think (Gove) had a strong constitutional argument that the criminal trespass order was unlawfully issued,” said Heminway, who interprets the order as meaning Gove cannot be on any median, at any time, for any reason.
The Cumberland County District Attorney’s Office did not respond to requests for comment on Monday or Tuesday.
Portland Police Chief Michael Sauschuck said Tuesday that officers have discretion when they issue criminal trespass notices for public spaces, especially with chronic offenders who are unable to pay fines or unlikely to show up in court when summoned.
“These folks are repeat offenders who are not going to listen to ordinance violations,” Sauschuck said.
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