McLaughlin v. City of Lowell, CIVIL ACTION NO. 14-10270-DPW

• Decision Date: 23 October 2015
• Docket Number: CIVIL ACTION NO. 14-10270-DPW
• Citation: 140 F.Supp.3d 177
• Parties: Kenneth McLaughlin and Joshua Wood Plaintiffs, v. City of Lowell Defendant.
• Court: U.S. District Court — District of Massachusetts

140 F.Supp.3d 177

Kenneth McLaughlin and Joshua Wood Plaintiffs,

v.City of Lowell Defendant.

CIVIL ACTION NO. 14-10270-DPW

United States District Court, D. Massachusetts.

Signed October 23, 2015

David J. Zimmer, Goodwin Procter LLP, San Francisco, CA, Matthew Segal, American Civil Liberties Union, Corrine L. Lusic, Eric Lawson, Geoffrey Kirsch, Jenny Zhang, Kevin P. Martin, Robert D. Carroll, Goodwin Procter LLP, Sarah R. Wunsch, Aclu of Massachusetts, Boston, MA, for Plaintiffs.

C. Michael Carlson, Christine P. O'Connor, Hannah B. Pappenheim, City of Lowell Law Department, Lowell, MA, for Defendant.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

The City of Lowell, Massachusetts, considers itself to have a problem with panhandling. Many officials, residents, and local stakeholders have come to believe that panhandling been becoming more common and that panhandlers have become more aggressive. In response, in 2013 the City passed an ordinance, Lowell Code § 222-15 ("the Ordinance"), to limit panhandling in the city; the Ordinance has since been amended twice. As it currently stands, the Ordinance bans all vocal panhandling in Lowell's downtown, and bans what are identified as aggressive panhandling behaviors citywide. This case presents a challenge to the Ordinance in the context of evolving case law from the Supreme Court and the First Circuit.

I. BACKGROUND

A. Factual Background

Plaintiffs are two¹ homeless men who have panhandled in Lowell, requesting money that they use for, among other things, food, medicine, and shelter. They have challenged the validity of Lowell's panhandling regulations under the federal Constitution, primarily as violative of their First Amendment right to freedom of speech, but also as violative of the Due Process and Equal Protection clauses of the Fourteenth Amendment. They wish to continue asking passersby for donations in Lowell's public places and believe they have a constitutional right to do so.

The Ordinance creates two basic categories of restrictions which can be characterized as the Downtown Panhandling provisions and the Aggressive Panhandling provisions. Both categories share a common definition of panhandling as the solicitation of any item of value through a request for an immediate donation. § 222-15(A). The sale of an item for an inflated amount, such that a reasonable person would understand it to be in substance a donation, also constitutes panhandling under the Ordinance. Id .

The Downtown Panhandling provisions were initially enacted by the Lowell City Council on November 12, 2013. These provisions ban all panhandling in the Downtown Lowell Historic District, although important exceptions exist. § 222-15(B)(1). As originally enacted, organized charities seeking donations for third parties—most iconically, the Salvation Army—were exempt and permitted to solicit in the Historic District. This exemption was removed on February 4, 2014; plaintiffs allege that was done in response to the threat of litigation. On March 3, 2015, a different exemption was inserted in the Downtown provisions, permitting panhandling that involves only "passively" standing, sitting, or performing music. Id . These passive panhandlers may hold a sign asking for a donation, but may not make any "vocal request" except in response to an inquiry. Id . These restrictions cover an extensive area—some 400 acres—which include some of the most trafficked areas in the City and a number of important government sites.

The Aggressive Panhandling provisions were enacted on Feb. 4, 2014. These provisions prohibit panhandling "in an aggressive manner." § 222-15(B)(2). What constitutes "aggressive" panhandling is defined as any of ten activities. § 222-15(A)(1)-(10). These ten activities can be placed into three basic categories. One category includes provisions that are duplicative of existing sanctions but directed specifically at panhandling. The first provision criminalizes panhandling that is "intended or likely to cause a reasonable person to fear bodily harm to oneself," harm to another, or property damage. § 222-15(A)(1). Causing a reasonable person "to fear immediate bodily harm" is assault. Commonwealth v. Gorassi , 432 Mass. 244, 733 N.E.2d 106, 109–10 (2000). Accordingly, this provision creates a new offense of panhandling while committing assault. The eighth provision defining aggressive panhandling is also substantially identical to assault. § 222-15(A)(8). The third provision defining aggressive panhandling as "intentionally touching... without that person's consent," § 222-15(a)(8), is simply a restatement of the crime of battery, Mass. Gen. L. ch. 265 § 13A ; Commonwealth v. Burke , 390 Mass. 480, 457 N.E.2d 622, 624 (1983), with the additional element of panhandling. The fourth provision, (§ 222-15(a)(4)), which deems aggressive panhandling that intentionally interferes with the passage of pedestrians or vehicles, appears to be duplicative, as the parties agree, of Lowell ordinances that make it illegal to "occupy or obstruct any sidewalk as to interfere with the convenient use of the same by pedestrians," § 243-20, and that regulate pedestrians entering a roadway, § 266-138. See also 720 C.M.R. 9.09. The fifth provision, prohibiting panhandling using violent or threatening language or gestures likely to provoke an immediate violent reaction, § 222-15(a)(5), is somewhat distinct, although I will treat it alongside these duplicative provisions because it prohibits "fighting words," a category of speech that largely falls outside the First Amendment's protections. Chaplinsky v. State of New Hampshire , 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (holding that the Constitution does not protect words which "tend to incite an immediate breach of the peace").

A second category of prohibited panhandling activities includes behaviors not otherwise criminal that Lowell contends are coercive panhandling techniques. There are three such provisions: continuing to panhandle from a person after that person has "given a negative response to such soliciting," § 222-15(A)(2); following a person with the intent of asking for money or things of value, § 222-15(A)(6); and panhandling in a group of two or more, in an "intimidating fashion" § 222-15(A)(9).

In a final category of panhandling activities, Lowell has deemed all panhandling performed in certain locations to be illegal aggressive panhandling. Panhandling from anyone who is waiting in line is banned. § 222-15(A)(7). Additionally, any panhandling within a twenty feet buffer zone around a bank, ATM, check-cashing business, mass transportation facility, public restroom, pay telephone, theater, or outdoor seating area, or around the parking lot for any of those facilities, is banned. § 222-15(A)(10).

There is no passive sign holding exception for the Aggressive Panhandling provisions; as a consequence, even sitting and holding a sign asking for donations is prohibited in these locations. Originally, the Aggressive Panhandling provisions only applied in the Downtown Lowell Historic District, but they were extended citywide on March 3, 2015.

Plaintiffs have regularly panhandled in Lowell, including in the Downtown Historic District. Neither considers himself ever to have panhandled aggressively, although they concede it is possible that they have panhandled in what are prohibited locations under the Ordinance. They have stated that, since the Ordinance was passed, they have avoided panhandling downtown because they have been afraid of arrest. They seek a declaration that the Lowell panhandling ordinance is unconstitutional and a permanent injunction against its enforcement.

B. Procedural History and Standard of Review

No part of the Ordinance has yet been enforced. Plaintiffs filed for a preliminary injunction when filing their complaint in February, 2014, but their motion for interlocutory injunctive relief was rendered moot by Lowell's agreement to forbear from enforcement until the case was decided on the merits. Meanwhile, while governing case law has evolved, the City has considered refinements to the Ordinance. The current iteration of the Ordinance is the one which the City has chosen to defend. The parties have conducted discovery and have filed cross-motions for summary judgment regarding the current iteration of the Ordinance.

Under Rule 56, I may grant summary judgment only if there is no genuine dispute of material fact and if the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Carmona v. Toledo , 215 F.3d 124, 132 (1st Cir.2000). Cross-motions for summary judgment "do not alter the basic Rule 56 standard." Adria Int'l Grp., Inc v. Ferre Dev., Inc. , 241 F.3d 103, 107 (1st Cir.2001). Rather, I must assess each motion for summary judgment independently and "determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Id . Because this is a facial attack on the constitutionality of a municipal ordinance, I find no material factual disputes and am able to decide the case on the basis of uncontested facts.

II. ANALYSIS

A. Panhandling as Protected Speech under the First Amendment

Panhandling, as defined by the Ordinance, is expressive activity within the scope of the First Amendment. Solicitations of money by organized charities are "within the protection of the First Amendment." Village of Schaumburg v. Citizens for a Better Environment , 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). See also Williams – Yulee v. Florida Bar , ––– U.S. ––––, 135 S.Ct. 1656, 1664, 191 L.Ed.2d 570 (2015) ( "We have applied exacting scrutiny to laws restricting the solicitation of contributions to charity"). This protection extends to those soliciting funds on their own behalf. People who panhandle "may communicate important political or social messages in their appeals for money, explaining their conditions related to...