NEW BEDFORD — Lawyers for Fall River and the American Civil Liberties Union said they plan to ask the state’s Supreme Judicial Court to weigh in on the constitutionality of a state law used to charge panhandlers with a criminal offense.
The move is the latest development in a free-speech lawsuit that the civil rights protection group filed in March against the city of Fall River, police and Bristol County District Attorney Thomas Quinn III.
On Monday, the parties to the lawsuit filed a joint motion in New Bedford Civil Superior Court asking the court to put a hold on legal proceedings while they petition the SJC to review the law at the center of the suit when the court's session begins this fall.
The lawsuit filed in late March alleged the city, Quinn and several police officers engaged in a “targeted effort” to arrest low-income and homeless people under a state law governing solicitation from motor vehicles, a law the ACLU contends is unconstitutional.
The position of the civil rights protection group was affirmed by a Bristol County Superior Court judge in April.
Judge Raffi Yessayan ordered local police to temporarily stop charging panhandlers accused of violating the statute, issuing a ruling that it will “likely” be proven that the law impinges on free speech rights because it prohibits signalling and stopping cars for some purposes, but not others.
However, Yessayan’s ruling only applied to Bristol County, said ACLU senior attorney Ruth Bourquin. The SJC's ruling, striking or upholding of some or all of law would be binding statewide.
Bourquin pointed to Brockton, the Plymouth County city whose mayor this spring said he would not stop efforts to prevent panhandling unless he receives a court order to do so.
The law prohibits people from signalling, stopping or “accosting” a motor vehicle for the purpose of soliciting a charitable donation for their own livelihood – a practice often known as panhandling, according to the lawsuit. But the law does not criminalize nonprofit organizations from soliciting money this way, or stop newspaper sellers from engaging in the same type of activity.
Before the ruling came down, Quinn chose to stop prosecuting panhandling cases until the high court resolves what he said was “a serious question as to the constitutionality of this statute.”
A motion filed Friday by Assistant Attorney General Timothy Casey, who is representing Quinn in the lawsuit, formally acknowledged that part of the statute imposes a “content-based restriction on plaintiffs’ free-speech rights.”
The plaintiffs in the suit include two homeless Fall River residents who had been repeatedly charged under the law.
“We are very pleased that the attorney general, on behalf of the district attorney, has explicitly stated that it recognizes that the statute is unconstitutional," Bourquin said.
The office of Attorney General Maura Healey has declined to defend the state law, a decision that Bourquin said demonstrates the chief law enforcement official’s belief that the statute is illegitimate.
“We weren't surprised that the Attorney General would recognize the unconstitutionality of this statute,” Bourquin said, adding that she hopes Healey will “take additional steps to make sure that other municipalities ... are not attempting to use this statute.”
Corporation Counsel Joseph Macy said Tuesday that Healey’s decision not to get involved in legal proceedings so far, combined with Quinn’s early decision not to prosecute panhandling cases, made Fall River “the odd man out.”
“We’re forced into the situation of defending the statute,” he said.
Asked whether the statute violates constitutionally protected rights, Macy said: “Our position is that we believe (the statute is) constitutional. We acted on the belief that it’s constitutional and despite what the attorney general and the district attorney have taken as their institutional positions, we feel we have to defend what we did and therefore defend the statute.”
According to the lawsuit, Fall River police have filed more than 150 criminal complaints against panhandlers since last summer.
Defendants named in the lawsuit were Lt. Paul Bernier, Lt. David Gouveia, Sgt. James Smith, Officer Michael Pavao and Officer Derek Amaral, who the ACLU accused of civil rights violations for filing those charges, and causing plaintiffs mental and emotional distress and loss of income.
However, the ACLU moved Monday to dismiss the charges against the individual officers, which Macy said was good news for a city whose officers were facing a civil suit for enforcing a law that remains on the books.
“I did not want legally constituted officers of the city of Fall River exposed to any court proceeding for simply doing their job,” Macy said.