Homeless in Arizona

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The US Supreme Court in

Thayer v. City of Worcester

begging, soliciting and panhandling

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Supreme Court Protects Homeless Rights

Local National News

December 17, 2015

By Vincent Flanagan

As this article will explain, numerous important issues involving the rights of the homeless have been addressed recently by our legal system, including a major victory for the homeless through the Supreme Court’s June 29 ruling in Thayer v. City of Worcester, in which the Homeless Empowerment Project was involved.

As most of our regular readers know, the Homeless Empowerment Project / Spare Change News was contacted by the American Civil Liberties Union (ACLU) to join in their effort to have ordinances passed by the City of Worcester declared unconstitutional. The Board of Trustees unanimously agreed to support the ACLU request. The ordinances prohibited “aggressive begging, soliciting and panhandling in public places.” (Under the ordinances’ definition, virtually all begging would be viewed as aggressive.) The ordinances also created twenty-foot buffer zones throughout the city that prohibited activities from handing out leaflets to selling newspapers to selling Girl Scout cookies. The zones also covered all the most desirable areas to sell a product or deliver a message. The ACLU requested that we allow an amicus curiae (friend of the court) brief to be prepared for us and submitted for filing to the United States Supreme Court. The purpose of the brief was to put a human face on the legal issues represented by the case. It would allow the Supreme Court Justices to see what real-world damages the Worcester ordinances, if allowed to stand, would cause.

Initially, the Federal District Judge sitting in Worcester and the United States First Circuit Court of Appeals upheld the ordinances as constitutional. Fortunately, on June 29, 2015, the United States Supreme Court granted the motion of the Homeless Empowerment Project for leave to file an amicus curiae brief. The Court granted the petition for writ of certiorari. Most importantly, the Supreme Court issued a judgment vacating the lower courts’ opinions that upheld the Worcester ordinances and remanded the case to the United States Court of Appeals for the First Circuit for reconsideration in light of its ruling in a related case, Reed v. Town of Gilbert. In the Reed case, the Supreme Court declared unconstitutional an attempt to ban the display of content-based outdoor signs without a permit. The United States Court of Appeals for the First Circuit withdrew its opinion and remanded the case to the District Judge in Worcester for further reconsideration in light of the Supreme Court ruling. On Nov. 9, 2015, the District Judge issued a decision granting the Plaintiffs’ (Thayer, Brownson and Novick) request for summary judgment. The court declared the City of Worcester’s ordinances regarding begging, soliciting and panhandling unconstitutional in their entirety and also declared unconstitutional that part of the ordinance regarding the restriction the ordinance placed on activities on traffic islands.

The importance of this decision cannot be understated. It protects the rights of all Americans, including the homeless, to exercise their free speech rights, either through activities such as selling Spare Change News or simply panhandling. It also demonstrates how the Homeless Empowerment Project will fight for the rights of the homeless at the highest level of the legal system in this country. It should also be noted that in similar cases restricting the rights of the homeless in the Sixth and Fourth Circuits, the United States Supreme Court remanded cases from those circuits with instructions to reconsider their ruling in light of the Reed case, as it did in Thayer.

The Thayer decision was not the only good piece of news to come out of the First Circuit recently. On Oct. 23, 2015, in the case of McLaughlin v. City of Lowell, a Federal District Judge sitting in Boston struck down as unconstitutional a Lowell city ordinance that attempted to limit panhandling in that city. The judge declared the ordinance unconstitutional as a violation of the First Amendment. The judge, in his ruling, stated that panhandlers “may communicate important political or social messages in their appeals for money, explaining their conditions related to veteran status, homelessness, unemployment and disability, to name a few.” This is the most powerful language I have encountered in defending the rights of the homeless, and clearly demonstrates that attempts to sweep the homeless out of sight actually robs a city of opportunities to face important social issues.

Another important decision protecting the rights of the homeless was issued by the First Circuit on Sept. 11, 2015 in Cutting et al. v. City of Portland, Maine. A three judge panel of the United States Court of Appeals for the First Circuit struck down a Portland ordinance that, under the guise of public safety, violated citizens’ right to free speech, including that of the homeless.

While we should celebrate the legal victories discussed above, as a lawyer with a 25-year career in the federal judiciary, I can attest to the difference between obtaining a judgment and having that judgment enforced. In fact, the vendors’ rights to sell Spare Change News were first established in the case of Wulp v. Corcoran, a decision issued on Jan. 11, 1972, which struck down as unconstitutional a City of Cambridge ordinance that required anyone who wished to sell newspapers and certain other articles on the streets of Cambridge to first obtain a permit and badge from the Board of License Commissioners. Since the ruling was issued by a District of Massachusetts Federal Judge, it is enforceable throughout the state. In the case of HEP, while I served as executive director, we provided a copy of this ruling to any vendor who requested one. Many vendors informed me that when they presented the ruling and a cover letter explaining the ruling to the police officer who was challenging their right to sell the paper, they were told, in no uncertain terms, that the officer did not care about the decision. (I should point out that the vast majority of officers were respectful and honored vendors’ rights to sell the paper.) I was forced to talk to the mayors and police commissioners in two jurisdictions to convince them to have the police enforce vendors’ rights to sell Spare Change News. Hopefully, a ruling from the Supreme Court in the Thayer case will have some impact on the understanding of the vendors’ rights to sell Spare Change News. Unfortunately, one needs only to think back to the civil rights era, when governors of certain southern states refused to implement Supreme Court decisions that desegregated public institutions.

One of the great concerns is the growing attempt throughout the country to criminalize homelessness. There is a growing trend to criminalize sleeping in a public place, begging in public, loitering, sitting or lying in public, living in vehicles and, most offensively, food sharing, which includes an individual purchasing food for a homeless individual. In certain instances, food-sharing restrictions apply not only to individuals but to organizations that exist to provide food to the homeless. While I find all these criminalization categories repulsive, I find myself most disgusted by the criminalization of “food sharing.” It appalls me to think that I can face a criminal fine in the more than 30 cities that prohibit food sharing, while in those cities, I can give a treat to a dog in a park with no fear of criminal liability. This is not the America I believe in. While we claim to have a safety net to protect the poor and homeless, it is a net with a huge hole in it. Trying to survive on what the government gives to people in poverty is one of the reasons organizations like HEP exist—because people need some sort of supplemental income and because having a job gives people a sense of pride.

I have noticed that people often have one of two reactions to homeless people: they look through them like they are not even there, like they do not even exist, or they are openly hostile (admittedly, the occasional person gives them some money.) I have spent some time with the vendors on the street and have watched how they are treated; being out there and homeless would break my spirit. They are treated like a different class of people.

Most people do not recognize the reasons these people are out there; there is no realization that studies have shown that the vast majority of Americans are one or two paychecks away from being homeless. A recent report by the PEW Charitable Trust, “The Precious State of Family Balance Sheets,” indicates that the majority of American households (55 percent) are savings-limited, meaning they can replace less than one month of their income through liquid savings. Low-income families are particularly unprepared for emergencies. The typical household at the bottom of the income ladder has the equivalent of less than two weeks’ worth of income in checking and savings accounts and cash at home. Despite the studies like the PEW report, the majority of people still believe in the myths concerning homelessness: that most homeless individuals are alcoholics, drug addicts, thieves or mentally unstable.

The question remains: what can we, as individuals and groups, do to address the growing issue of homelessness. Of course, we can donate money to organizations that work diligently to serve the needs of the homeless. We can also volunteer our time, which is needed by all organizations dedicated to helping the homeless. We can make our voices heard by letting our politicians know that this is a problem that we care about and want them to address with the needed funds. We can make our voices heard at the ballot box by voting for candidates who demonstrate a real desire to do something about this problem. For example, we can support politicians who are dedicated to developing affordable housing and increasing funding to all poverty programs. In Massachusetts, we can support the legislature’s plan to pass a Homeless Bill of Rights. We can support the National Law Center on Homelessness and Poverty’s efforts to develop an amendment to the Constitution guaranteeing every American a Right to Housing. I would also suggest that everyone educate themselves by reading informative reports, like the aforementioned PEW Charitable Trust report, and a report from the National Law Center on Homelessness & Poverty, in conjunction with the National Coalition for the Homeless, entitled, “Homes, not Handcuffs: The Criminalization of Homelessness in U.S. Cities.” I would also suggest reading the report prepared by the National Coalition for the Homeless, “Share No More: The Criminalization of Efforts to Feed People in Need.”

The task ahead is not an easy one, but it is crucial if we are to live in a just and fair society. I would remember the following quote: “All that is necessary for the triumph of evil is that good men do nothing.”

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