With a judge set to hear arguments on the constitutionality of Portland’s ordinance against panhandling in street medians, the city will limit enforcement of the ban to people who appear to be drunk or under the influence of drugs.

Three Portland residents are suing the city in federal court over the ordinance, which took effect Aug. 15, saying it infringes on their First Amendment rights to free speech.

They initially sought an injunction to keep the city from enforcing the ordinance until a trial could be scheduled, but a judge agreed to expedite the trial. A one-day trial on the ban’s constitutionality is scheduled for Nov. 19.

The city said in a news release Monday that police will limit enforcement of the ordinance to people “obviously impaired by drugs or alcohol and posing a threat to traffic.” It said it will continue to address public safety concerns using existing laws, pending the outcome of the trial.

The ordinance approved unanimously by the City Council in July says: “No person shall stand, sit, stay, drive or park on a median … except that pedestrians may use median strips only in the course of crossing from one side of the street to the other.”

Under the ordinance, a median is “a paved or planted area of public right of way dividing a street or highway into two lanes according to direction of travel.” That 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.

In passing the ordinance, city councilors cited an increase in complaints about median-strip panhandling and said the ban was needed to protect public safety – for panhandlers and motorists.

Opponents said it was disingenuous for city councilors, police and businesses to express concern for the homeless when there was a lack of affordable housing and jobs, and substance abuse and mental health programs.

In August, a Michigan law banning panhandling in public places was struck down. That law was broader than Portland’s, but a more comparable law in Utah – banning begging near roads – was deemed unconstitutional by a federal judge last year.

The punishment for violating Portland’s ordinance is supposed to be a civil citation and a fine.

City officials say that no civil citations have been issued under the ordinance, but the Portland Press Herald found that police have been issuing criminal trespass orders to panhandlers. Such orders can lead to arrests and criminal charges. The city has arrested at least three people for panhandling in medians.

The American Civil Liberties Union of Maine, which is representing Michael Cutting, Wells Staley-Mays and Alison Prior of Portland in their lawsuit against the city, said in a statement on its website that the city “has agreed that it will not issue citations or fines or issue new criminal trespass orders under the median ban, with the exception of individuals who are openly and obviously impaired by drugs or alcohol and posing a threat to traffic, pending the outcome of the trial.”

Police Chief Michael Sauschuck said Monday that no civil citations have been issued under the ordinance, and “to my knowledge, there have been no additional arrests.”

He noted that other laws prohibit obstructing public ways, disorderly conduct and soliciting a motor vehicle, and said police will continue to enforce public safety concerns stemming from medians.

Police could issue no-trespass orders, make arrests and issue civil citations under the ordinance if a person is visibly intoxicated, Sauschuck said.

According to the lawsuit, the ordinance discourages Cutting and Staley-Mays, a frequent protester of U.S. military involvement overseas, from holding political signs in medians.

“During all his years standing on medians with political signs, Mr. Staley-Mays has never been hit by a car, never interfered with traffic, and never felt his safety threatened,” the lawsuit says.

Prior panhandled in street medians until the ordinance took effect.

Randy Billings can be contacted at 791-6346 or at:

[email protected]

Twitter: @randybillings

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