FALL RIVER — After a recent ruling by a superior court judge, local police are limited for now in their ability to “prevent an escalation” between motorists and panhandlers, according to Police Chief Albert Dupere.
“The statute was a way to prevent escalation. Now that tool has been taken away temporarily, in Fall River at least,” the chief said. “Now (panhandlers) have a little bit more leeway, where they can actually walk out into the street with a sign.”
The tool Dupere referenced is a state law at the center of a lawsuit the American Civil Liberties Union brought against Dupere, the city, its police department and the office of Bristol County District Attorney Thomas Quinn III.
The law prohibits people from signaling, stopping or “accosting” a motor vehicle for the purposes of soliciting a charitable donation for their own livelihood, according to the lawsuit, but not by those working for a nonprofit or other exempted categories.
Courts in several states have affirmed panhandling as an activity protected by the U.S. Constitution, and most recently a federal district judge in Arkansas tossed out a municipal ordinance that restricted panhandling.
The lawsuit against Fall River alleges several local law enforcement officials engaged in a “targeted effort” to bring charges against low-income and homeless people for allegedly violating the law, and argues the law should be deemed unconstitutional.
On April 17, Judge Raffi Yessayan temporarily enjoined Fall River police from enforcing it, writing that the law itself is likely unconstitutional and calling the city’s stated concerns about panhandling activity “unpersuasive and exaggerated.”
Dupere said the department’s enforcement of the statue was not aimed at panhandlers, but at preventing all people from bothering or intimidating motorists, and sanctioning them if they do.
“It just so happens that they’re the most frequent violators,” he said of people who panhandle.
Dupere said officers must now wait to observe a solicitor or panhandler standing in front of cars or banging on a window before intervening or issuing a citation or charge.
“That’s what we have to wait for now before we can take some action,” he said, adding that such actions by law enforcement could be issuing a charge of disturbing the peace or disorderly conduct.
In an affidavit submitted for the record in the ACLU lawsuit, Dupere said Fall River policy when it comes to panhandlers is to “leave them alone, unless they break the law.”
If officers issue a warning, and “if the warning is not heeded, then the policy [is] police officers are directed to charging the offending individuals,” according to the affidavit.
Two plaintiffs represented by attorneys for the ACLU in the lawsuit, Joseph Treeful and John Correia, are homeless Fall River residents who panhandle.
According to Dupere’s affidavit, they “repeatedly” ignored warnings from officers and engaged in “conduct prohibited by the statute” by walking off a highway off-ramp and obstructing traffic.
“If the two individuals ... remain on the median when they solicit motorists and only enter the road-way briefly when called upon by a motorist, the police department will not charge these individuals,” Dupere wrote in the affidavit.
Attorney for the ACLU Ruth Bourquin told Judge Yessayan at the April 9 hearing for preliminary injunction that the city’s enforcement of the solicitation statute was “broader” than the city described.
She read a police report that documented a time when an officer charged Correia after observing him panhandling while “standing on the side of the highway.”
“This is not conduct when they’re wandering around in traffic,” she told Judge Yessayan. “They’re merely exercising their First Amendment rights to signal to people who are stopped there and may offer a donation.”
Dupere said Friday that “in some cases” police charged a person soliciting from a motor vehicle for violating the statute even when they haven’t obstructed traffic. But he said officers have not charged panhandlers who simply held a sign in an effort to solicit donations.
“The ACLU wasn’t there. They didn't see what was going on but we never arrested anyone standing there with a sign,” he said. “That doesn't give them the right to walk up to the car and start harassing you, and that’s where the complaints came from.”