Reading Mike’s summary of the Joint Committee meeting reminded me that I had a few thoughts on the proposed ordinance that hadn’t yet made it to the blog.
I recommend readers take a look at the ordinance. Read the whole thing. I’d like to see if it inspires questions in you the way it has in us.
One of the items defined in the Definitions section (c) is “aggressive manner.” Among other things, it means:
(10) soliciting any person within 20 feet of the entrance to, or parking area of, any bank, automated teller machine, automated teller machine facility, check cashing business, mass transportation facility, mass transportation stop, public restroom, pay telephone or theatre or place of public assembly, or of any outdoor seating area of any cafe, restaurant or other business.
(11) soliciting any person in public after dark which shall mean the time from one-half hour before sunset to one-half hour after sunrise.
The ordinance defines “solicit” as well:
“Solicit or “Soliciting” shall include using the spoken, written, or printed word, bodily gestures, signs, or other means of communication with the purpose of obtaining an immediate donation of money or other thing of value the same as begging or panhandling and also include the offer to immediately exchange and/or sell any goods or services.
I couldn’t find a definition in this proposed ordinance, the Revised Ordinances of 2008, or the MGL for “place of public assembly” (mentioned in (10) above); “public place” is defined in the ordinance — it’s unclear whether they are meant to be the same thing:
“Public place” shall mean a place to which the public has access, including, but not limited to: a place which a governmental entity has title, any street open to public use, bridge, sidewalk, walkway, driveway, parking lot, plaza, transportation facility, school, park, or playground, and the doorways and entrances to buildings and dwellings.
(Note, too, that in 2009, City Solicitor David Moore said that City Hall was not a “place of public assembly” when Gary Rosen was barred from holding a press conference inside. See Telegram & Gazette, “ACLU: City erred on Rosen”, 14 July 2009; Moore said that “The building is restricted as a government office, and it’s not a place of public assembly. Once you open up for one person, you open it up for anybody.”)
I’m not a lawyer, so perhaps that’s why I’m confused in reading this ordinance, but no one should require a retainer with an attorney to understand the ordinances of the city in which she lives.
My understanding from reading the definition for “solicit” above is that it includes holding a sign and requesting money.
My understanding (in my own head) of place of public assembly could be pretty much any building in the downtown. If I look at this memo from the Executive Office of Public Safety, they give the following as examples of places of public assembly: an office, apartment, or hotel lobby, or a restaurant. Most buildings downtown have some sort of lobby, which would probably make them a place of public assembly.
If this is all one is doing — holding a sign that requests money — near a “place of public assembly” (an office building’s main floor), one could be charged with aggressive panhandling. You do not need to be following someone, you do not need to yell (or say anything), you do not need to threaten someone.
Just the act of holding a sign 18 feet away from other people congregated indoors seems to be enough to be labelled “aggressive.”
As you may know, I am a Luddite who does not own a cell phone. There are times when I do need a phone, and when I cannot find a pay phone. On those occasions, I ask a friendly-looking passerby if I can use their phone in exchange for a few dollars. Usually folks have so many minutes they never take me up on my offer of two or three dollars.
But now I’m wondering if I, too, could be charged with aggressive panhandling if I solicit someone for the use of their phone (a “thing of value”) too close to a bus stop or twenty minutes before dusk.
Benefit vs. Cambridge
If there’s one court decision you read this month, make it Benefit vs. Cambridge.
In the case, Craig Benefit frequently sat on the sidewalks of Harvard Square, often in front of a CVS, holding signs that requested help. He was always peaceful. He was arrested a few times under a state anti-vagrancy law, and this case is about whether this violated his First Amendment rights.
The decision quotes from Loper vs. New York City Police: “We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not a significant one for First Amendment purposes.”
That’s why the city can’t allow charitable solicitors and ban other forms of panhandling.
Benefit also says that “We reject the district attorney’s argument that the statute supports the Commonwealth’s compelling interest in preventing crime and in providing safe streets. There is no basis whatsoever in the record to support the assumption that those who peacefully beg are likely to commit crimes.”
Finally, Benefit says that:
The statute intrudes not only on the right of free communication, but it also implicates and suppresses an even broader right — the right to engage fellow human beings with the hope of receiving aid and compassion. The streets and public areas are quintessential public forums, not because they are a particularly convenient platform for expression, but because they are the necessary, essential public spaces that connect our individual private spaces, from which we legitimately may exclude others and likewise be excluded, but from which we almost all must inevitably emerge from time to time. If such a basic transaction as peacefully requesting or giving casual help to the needy may be forbidden in all such places, then we may belong to the government that regulates us and not the other way around.
I share Mike’s concerns that some of the language in the ordinance sounds extreme, and I hope that it’s clarified and discussed in detail before the Council votes on it.
Benefit clearly recognizes passive panhandling as protected First Amendment speech — it bothers me that Worcester’s proposed ordinance seems to be categorizing the type of speech Craig Benefit was making as “aggressive panhandling.”
But what about real forms of aggression?
I have no doubt that there are panhandlers out there who are aggressive. I understand that it is really frustrating (not to mention scary) to have someone yell at you, bang on your car window, lay down in front of your vehicle, or follow you.
But let’s say someone started threatening you for no reason — no request for money involved.
If you were frightened enough, or angry enough, wouldn’t you call the cops?
And couldn’t they charge that person with a crime?
If you read the decision of Benefit vs. Cambridge (and you really should), the courts said that “There is ample authority available to the government to deal with beggars who transgress peaceful limits. Depending on the nature of the transgression, charges may be brought for
disorderly conduct, trespass, assault, assault and battery, and other offenses that may result from peaceful activity turned aggressive.”
In short, no municipality should need an aggressive panhandling ordinance because there are already laws that take care of that kind of behavior.
On Thursday evening, we heard that various beggars had been harassing a restaurant’s customers in its privately-owned parking lot. Police were called and the offenders were removed.
Though my younger self would wince to hear me say this, there are times when the cops are your friend. And when someone is being abusive to you, that is one of those times.
911. Memorize it.
Forget everything you’ve just read
I was about to write another section discussing the public safety and traffic concerns, and another exhortation or two to enforce existing laws rather than drafting new ones.
But, really, what’s the point?
We sat through nearly two hours’ worth of meeting before someone asked how many 911 calls related to aggressive panhandling have been placed in the past six months, and those numbers were not immediately available.
The lack of knowledge about how large or small the problem is did not stop all members of the two committees — save one — from passing the ordinance on to the whole Council.
Councilor Lukes acknowledged that these ordinances have very limited impact, but didn’t seem to see that anything more be done than to have a hearing and pass an ordinance along.
This is, of course, likely what the electorate wants. Their needs, as always, are simple.
They want “something” to be done.
It doesn’t need to be “something effective” or “something good” or “something new” or “something innovative.”
Just — “something.”
Come January 15, many voices will speak in favor of doing “something” and a few voices will say that this particular something is ineffective at best and a violation of First Amendment rights at worst.
The voices that speak in favor of “something” will reiterate their love of the First Amendment, their respect for the rights of all people, but — above all else — “something” must be done.
So “something” will be done.
That “something” will be one of two things:
It will either be one ordinance among many that remains unenforced and unremembered, except by the odd blogger to trot out in the same breath as “pill bulls” and “knives”, or it will be an ordinance that — if enforced — could be a legal liability for the city.
After that vote, there will be so many grateful that someone finally did “something” about this.
And a few of us who know that “something” is one more missed opportunity.