Wednesday, April 16, 2014
(Continued from page 1)
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
But the amount of discretion that officers have in enforcing the panhandling ordinance through criminal or civil penalties concerns the ACLU of Maine.
“Courts have consistently found that excessive discretion by police or other decision-makers is incompatible with the protections of the First Amendment,” said Zachary Heiden, the organization’s legal director. “The penalty for violating the ordinance is supposed to be a civil violation and not an arrest.”
The ACLU of Maine, along with the Boston-based Goodwin Proctor law firm, has challenged Portland’s ordinance in court on behalf of three residents, contending that it restricts their First Amendment rights to free speech.
Under the ordinance, a median is defined as “a paved or planted area of public right of way dividing a street or highway into two lanes according to direction of travel.” That definition covers narrow medians and larger areas such as Boothby Square on Fore Street and the grassy expanse along Franklin Street from Middle Street to Marginal Way.
Mayor Michael Brennan, who said last week that no one had been cited under the ordinance, rejected the assertion that the city is taking a harder line against panhandlers by using trespass notices. He defended the city’s enforcement of the ordinance.
“What I said was true: There haven’t been any citations that have been issued,” Brennan said Monday. “A citation is different than criminal trespassing. Criminal trespassing is like a warning.”
Brennan said he was not aware of the arrests made as a result of the warnings.
Sauschuck said he also was unaware that arrests had been made under the ordinance, until the issue was raised by a reporter.
Neighborhood Prosecutor Trish McAllister said the city has not issued any civil citations for ordinance violations, but five people have received criminal trespass notices for panhandling on medians.
Sauschuck said a review of the criminal histories of three of those people showed that police had had a total of 266 contacts with them, including 11 criminal trespass notices filed by businesses or the Portland Housing Authority.
According to court documents in his case, Gove, who was reportedly intoxicated, refused to leave the median when given a verbal warning by officers on Aug. 27. The documents say he told the officer, “I’ll go out on any median anytime I want. (Expletive) you.”
Gove was arrested on Sept. 3 for returning to the median. Police were called when he walked out into traffic. Gove told police that he went into the road because someone yelled at him to get a job. “Of course I went over to him,” he said, according to court documents.
On Sept. 11, Gove returned to the same median and ran into the intersection of Congress and St. John streets when approached by police. The documents say he waved his arms to stop traffic for an ambulance with its emergency lights flashing.
“There are some guys out there who are not going to play ball,” Sauschuck said.
Randy Billings can be contacted at 791-6346 or at: