Healey won’t defend part of state panhandling law

The Massachusetts attorney general, Maura Healey. Photo courtesy of the Office of the Attorney General.

By Nick McCool and Maggie Mulvihill
BU News Service

In a legal clash that pits the state’s top law enforcement officer against the City of Fall River and police, Attorney General Maura Healey’s office will no longer defend part of a 90-year-old Massachusetts law criminalizing panhandling from people in vehicles, arguing it violates free speech rights.

Healey’s position comes in a case pending before the state’s highest court in which two Fall Rivermen and the Massachusetts Coalition for the Homeless claim local police and the city have aggressively and unconstitutionally targeted vulnerable residents seeking charity on local roadways.

The law bans people from asking for money from vehicles on a public street and those selling merchandise or tickets to events. It exempts those selling newspapers. Police can issue permits to nonprofits to ask for donations. Violators face fines of up to $50.

Healey represents the Bristol district attorney in the lawsuit brought by two homeless men, Joseph Treeful and John Correira, who claim the statute violates their right to free speech. In addition to the City of Fall River, its police chief, and five officers, the men also sued Bristol District Attorney Thomas M. Quinn III for prosecuting panhandlers under the statute.

Last year, Healey and Quinn asked a Bristol Superior Court judge to rule for Treeful and Correira, asserting that the law discriminates against people based on the content of their roadside speech.

Assistant Attorney General Timothy J. Casey argued that the agency believes only the part of the panhandling law barring an individual from asking for money from people in vehicles should be declared invalid.

“[The statute] prohibits individual requests for personal financial aid … but allows “nonprofit organizations” that obtain a local permit to “solicit on [public ways],” and further allows speech promoting the sale of newspapers,” Casey wrote in a court filing. “The statute therefore discriminates, on its face, against those who convey certain messages or speak on certain subjects.”

The remainder of the statute, including allowing the sale of newspapers to motorists and raising money for charity after obtaining a permit, should remain intact, Casey wrote.

Quinn has agreed not to prosecute any panhandling cases while the case is pending. State and federal courts in Massachusetts have held that soliciting money for one’s support is protected speech.

Since 2018, Treeful and Correira have faced a combined total of at least 43 criminal complaints brought by Fall River police under the state law. Each has been incarcerated at least once for either not responding to a court summons or committing an alleged probation violation related to the statute.

“Simply for standing along the side of a roadway and holding up a sign saying, ‘Homeless, Please Help,’ they have been targeted and harassed by police and forced to move away,” said the plaintiffs’ attorney, Ruth A. Bourquin of the American Civil Liberties Union Foundation of Massachusetts, in an interview.

Through a spokeswoman, Healey declined to comment.

Healey’s stance comes amid scrutiny of the criminalization of the daily behavior of homeless people nationwide. In June, The Boston Globe reported that nearly 13 percent of people arrested in Boston last year — about one in eight — were homeless. From January 2016 through February, people experiencing homelessness were arrested almost 6,000 times in the city.

In February, after a lower court judge had prohibited Fall River from charging panhandlers under the law, Associate Justice Elspeth Cypher of the state’s Supreme Judicial Court transferred the case to the high court because of the constitutional issues at stake.

State Police have continued to charge people under the panhandling statute despite Healey’s declaration to the SJC last year that her office believed the law was unconstitutional. State Police records indicate troopers, mainly from the Brighton barracks, used the law 112 times between June 11, 2014 and Aug. 2, 2019. A State Police spokesman did not respond to multiple requests for comment.

Healey has not issued any directive to law enforcement to stop using the statute, a spokeswoman said.

Questions about the law’s validity are creating risk and confusion for municipalities and police departments.

In an e-mail, Gary P. Howayeck, Fall River assistant corporation counsel, said the city is defending the statute in court because it “can’t pick and choose which laws of the Commonwealth it will follow.”

The lack of clarity on the statute’s constitutionality creates expensive legal risks for cities and towns that could be sued for civil rights violations, according to a court filing from the Massachusetts Municipal Lawyers Association.

Police use of the panhandling statute varies. In 2018, the number of panhandling charges brought in state courts quadrupled from the previous two years, with police issuing 137 citations, as compared to just 33 in 2017 and 39 in 2016, according to trial court records.

In 2019, the number of charges for panhandling in Massachusetts dropped to 59, the records show. The overwhelming majority of charges result in a not-guilty disposition or dismissal. Of the 389 panhandling charges brought statewide between 2015 and 2019, only 40 resulted in a guilty or responsible finding, the records show.

In a June 8 brief to the SJC, Howayeck argued the statute is not a blanket ban on panhandling but a legally permissible “time, place, and manner” restriction necessary to maintain public safety. Police do not charge panhandlers until they have ignored a warning to obey the law, he said.

“The City’s police department’s policy with regards to panhandlers, in general, is to leave them alone,” Howayeck wrote in brief.

The laws appear to clash with more than two decades of Massachusetts court decisions upholding the right of the homeless to ask for money in public. In 2015, federal judges in Massachusetts struck down anti-panhandling city ordinances in Lowell and Worcester as unconstitutional.

”The First Amendment does not permit a city to cater to the preference of one group, in this case, tourists or downtown shoppers, to avoid the expressive acts of others, in this case, panhandlers, simply on the basis that the privileged group does not like what is being expressed,” U.S. District Court Judge Douglas P. Woodlock wrote in Wood v. City of Lowell.

In that case, Woodlock rejected the city’s argument that the statute was construed narrowly to preserve public safety and protect tourism.

In 1997, the SJC struck down a state vagrancy law challenged by a homeless man criminally charged for begging.

”By prohibiting peaceful requests by poor people for personal financial aid, the statute directly targets the content of their communications, punishing requests by an individual for help with his or her basic human needs while shielding from government chastisement requests for help made by better-dressed people for other, less critical needs,” the SJC wrote.

Lillian Eden contributed to this report. This article was originally published in The Globe as part of an ongoing collaborative series on homelessness led by the Howard Center for Investigative Journalism at the University of Maryland.

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