WARWICK, RI — Warwick City Councillors will consider a resolution to curb the practice of standing on local street medians Monday night, a proposal the ACLU of Rhode Island says is a proven First Amendment violation, one that would have prevented one desperate man from finding work.
Ray, who declined to give his last name, has been standing on the median at the intersection of Bald Hill Road and East Avenue near Dunkin Donuts since August, when he was released from jail after an arrest for selling crack cocaine.
The 45-year-old said he’s the father of a 14-month-old son. Ray said he was determined to start over and provide for his child and fiancee, but he wasn’t going back to selling drugs.
“I’m going to miss out on my son’s life, and I don’t want to do that,” by returning to his old life, Ray said.
Finding a job the regular way wasn’t working out, though. His arrest record was holding him back, he said.
“Nobody wants to give a person a second chance,” Ray said. So, he started carrying a sign with his the cell number of his fiancee, Vicky, printed on it, asking for work.
He says he’s been seeing results.
Ray said he has a landscaping job lined up, and he’ll have to fill out a W-2 form for that work. He’s also got an interview as a dish washer coming up. The visible effort, carrying his sign in the cold and the wind to find work, is paying off, he said.
“People are trying to help me because I’m trying to help myself,” Ray said.
But the street-standing resolution, should it pass and be enforced, would cut off that option for Ray and others.
The resolution, PCO-40-16 An Ordinance regarding Pedestrians, sponsored by Councillors Steven Merolla and Ed Ladouceur, would prohibit pedestrians from walking or standing in the road or standing on or next to the median of a road where sidewalks are provided. The resolution would also require pedestrians to walk only on the left side of the road or its shoulder, facing traffic.
Merolla said he heard from the ACLU in the fall about their concerns, and he told them at the time he intended to hold the legislation for edits following the outcome of legal challenges to similar legislation in Cranston and Providence.
In April 2016, Cranston settled an ACLU lawsuit challenging their panhandling ordinance, acknowledging it was unconstitutional. That suit argued the ordinance was unconstitutionally vague, infringed on free speech rights, and was enforced selectively by targeting panhandlers trying to make ends meet while allowing fundraising groups to solicit motorists.
In February 2017, Cranston rewrote the ordinance, and the ACLU of Rhode Island vowed to challenge that on First Amendment grounds as well. The Providence Journal reports the new law has been broadened to include other fundraising groups.
At the state house, Cranston State Rep. Charlene Lima has proposed a bill fining motorists who stop to give panhandlers money.
It’s likely, Merolla said, that discussion and a vote on the resolution will be delayed until an upcoming meeting, after the federal court ruling, so they can tailor it to address his concerns and those of his constituents with a law that will withstand legal challenges.
On Wednesday, Steven Brown, director of the ACLU of Rhode Island, sent a letter to the City Council and Mayor Scott Avedisian expressing the organization’s opposition to the proposal. Brown said the settled Cranston case left little possibility for a constitutional approach to such a law.
“In resolving that case, Cranston City officials wisely and appropriately acknowledged the ordinance’s unconstitutionality. We are therefore quite surprised to see serious consideration being given to a proposal like this, which is even broader than the one challenged in Cranston,” Brown wrote.
“The proposed ordinance (PCO-40-16) would make it illegal for any person to stand in any roadway ‘or stand on the median adjacent to the roadway.’ This language would prohibit a wide array of First Amendment protected activity in the City. For example, it would prohibit the use of any roadway median for panhandling, for charitable solicitation of any other kind such as the firefighters’ annual “fill the boot campaign,” or for the display of political signs by campaign volunteers,” Brown wrote.
Brown said the only difference between the Cranston and Warwick laws is that Cranston’s “roadway solicitation” ordinance banned solicitations and the distribution of literature, while the Warwick ordinance would ban any First Amendment activity.
“This expanded restriction does nothing to solve the free speech problems that were inherent in the Cranston ordinance,” Brown noted.
Brown referenced Cutting v. City of Portland, where a similarly broad-worded anti-panhandling law was struck down, which was also cited in the First Circuit Court of Appeals defeat of the Cranston law.
“This broadly worded ordinance is a thinly veiled attempt to undermine the right of poor people to engage in panhandling. Any efforts to label this a “public safety” issue are quite unconvincing, In any event, protection of public safety was also the City of Portland’s rationale in attempting to justify its ban on median speech, unsuccessfully, before the First Circuit,” Brown said.
Merolla said he proposed the legislation after seeing a panhandler berate passing drivers at the intersection of West Natick Road and Bald Hill Road near the Warwick Mall. One woman stopped her car several car-lengths before the stop light to avoid the man, Merolla said.
When Merolla pulled up beside the man, the panhandler began yelling at him, saying that Merolla probably thought the panhandler owned a house and didn’t need handouts.
“These are the incidents that I am trying to avoid,” Merolla said.
He said he was also aware of Ray’s time at the intersection of Bald Hill Road and East Avenue near Dunkin Donuts.
“I don’t have any problem with that individual,” Merolla said.
But Brown pointed out that the Warwick resolution would affect peaceful panhandlers, as the Cranston one did.
“Like that one, this ordinance would harm individuals who are struggling with homelessness or destitution and who seek to peacefully exercise their First Amendment right to solicit donations. Rather than addressing the problems that have forced people to engage in panhandling in the first place, this proposal instead seeks to punish them for their poverty,” Brown wrote.
Ladoceur said he’s also heard from many constituents who are concerned about people tapping on their car windows while they’re stopped in traffic. He said he thinks they can find a common-sense solution that won’t violate the First Amendment.
“I’m going to be looking to get to a point where common sense prevails,” he said.
Ray said if the law passes, he doesn’t know what he or other people in his situation will be able to do to improve their circumstances. He said he doesn’t know about the aggressive tapping and intimidation Merolla and Ladoceur described other panhandlers engaging in.
“I can only speak for myself,” Ray said.
Warwick panhandling ACLU
For a complete review of Monday night’s City Council docket, see the links below:
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