Thayer v. City of Worcester

• Decision Date: 19 June 2014
• Docket Number: No. 13–2355.,13–2355.
• Parties: Robert THAYER, Sharon Brownson and Tracy Novick, Plaintiffs, Appellants, v. CITY OF WORCESTER, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

755 F.3d 60

Robert THAYER, Sharon Brownson and Tracy Novick, Plaintiffs, Appellants,

v.CITY OF WORCESTER, Defendant, Appellee.

No. 13–2355.

United States Court of Appeals, First Circuit.

June 19, 2014.

Kevin P. Martin, with whom Yvonne W. Chan, Todd J. Marabella, Goodwin Procter LLP, Matthew R. Segal, Sarah R. Wunsch, and American Civil Liberties Union Foundation of Massachusetts were on brief, for appellants.

David M. Moore, City Solicitor, with whom Wendy L. Quinn, Assistant City Solicitor, and City of Worcester Law Department, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, SOUTER,^* Associate Justice, SELYA, Circuit Judge.

SOUTER, Associate Justice.

This appeal is from the district court's denial of a preliminary injunction against enforcing two city ordinances prohibiting coercive or risky behavior by panhandlers, other solicitors, and demonstrators seeking the attention of motor vehicle drivers. We affirm.

I.

A.

For a decade, the public policy of the City of Worcester has been pushed and pulled by concerns about panhandling on its streets. In 2005, the City adopted a plan to reduce its prevalence that included public education about charitable organizations and increased efforts by social service agencies. The City posted signs reading “Panhandling is not the Solution!” and encouraged residents to redirect their contributions to charities serving the poor. Criticism of the signs led the City to take them down by August of 2006.

The issue became prominent again in the summer of 2012, when the City Manager sent a memorandum to the City Council describing a number of “[c]ommon concerns” about panhandling, including the perception that the City gave too little help to the needy, as well as the “fear/intimidation” of residents and “public safety” hazards arising from roadside solicitation. The memo reported that in the course of one year, Worcester police had been dispatched to 181 incidents of aggressive behavior by individuals suspected of panhandling, resulting in five arrests. The Manager observed that there was no “current mechanism for tracking or compiling statistics on panhandling or its impact on the community,” and proposed a “multi-faceted, community-wide response that incorporates direct service providers, non-profit agencies, area businesses, policymakers, and public services.”

The following October, the City Manager reported again, this time with data collected by a team of case workers and an outreach worker who had spent months educating 38 panhandlers about the resources and services available to them from the City. The report concluded that the “outcomes of the outreach worker's engagement efforts [were] encouraging,” with a majority of the consulted panhandlers affirming “a desire to work with the outreach worker to obtain assistance.” At the same time, the Manager noted that outreach efforts failed to address “another side of the issue”: the “issue of public safety—when individuals are walking in and out of traffic to collect money in intersections, traffic islands, and roadways.”

In light of that problem and the earlier police reports, the Manager advised the City Council to adopt two ordinances addressing the safety risks. The first was “An Ordinance Prohibiting Aggressive Begging, Soliciting and Panhandling in Public Places” (Aggressive Panhandling Ordinance), which would make it “unlawful for any person to beg, panhandle or solicit any other person in an aggressive manner.” It would apply to “soliciting” in the form of “using the spoken, written, or printed word, bodily gestures, signs, or other means of communication with the purpose of obtaining an immediate donation of money or other thing of value,” and it defined “aggressive” conduct at two levels. The definition included obviously threatening behavior, as by soliciting someone “in a manner ... likely to cause a reasonable person to fear immediate bodily harm,” using “violent or threatening language,” or blocking a person's right of way. It further covered a range of potentially coercive though not conventionally aggressive behaviors, including soliciting from someone waiting in line to buy tickets or enter a building; soliciting after dark, calculated as “the time from one-half hour before sunset to one-half hour after sunrise”; continuing to solicit from a person after the receipt of a negative response; and soliciting anyone within 20 feet of an entrance or parking area of a bank, automated teller machine, public transportation stop, pay phone, theater, or any outdoor commercial seating area like a sidewalk café. The text of the ordinance was preceded by a proposed “Declaration of Findings and Policy,” which detailed the City's concerns about how the behaviors to be banned threatened the safety of Worcester residents. In particular, the declaration stated that “[p]ersons approached by individuals asking for money, objects or other things of any value are particularly vulnerable to real, apparent or perceived coercion when such request is accompanied by ... [certain forms of] aggressive behavior.”

The second proposal, “An Ordinance Relative to Pedestrian Safety” (Pedestrian Safety Ordinance), targeted distractions on public roads:

No person shall, after having been given due notice warning by a police officer, persist in walking or standing on any traffic island or upon the roadway of any street or highway, except for the purpose of crossing the roadway at an intersection or designated crosswalk or for the purpose of entering or exiting a vehicle at the curb or for some other lawful purpose. Any police officer observing any person violating this provision may request or order such person the [sic] remove themselves from such roadway or traffic island and may arrest such person if they fail to comply with such request or order.

The ensuing City Council debates were a mix of reactions. Some councilmembers objected that existing laws already regulated intimidating behaviors and several protested that the primary purpose of the ordinances was less to enhance public safety than to eliminate unsightly panhandling, despite the mayor's espousal of the proposals as aimed at resolving “purely a public safety issue.” The most prominent reservations were about the effect the ordinance would have on Worcester's traditional “tag days”: fundraisers and publicity campaigns for local charities, civic organizations, and political groups, whose participants commonly used traffic islands and medians. While several councilmembers denounced the tradition as an “accident waiting to happen,” especially when children participated, others worried that prohibiting tag days would unduly harm local civic groups. Some of these qualms were addressed at a meeting of the Worcester Joint Public Health & Human Services and Municipal Operations Committee, where the City Solicitor said that the text of the Pedestrian Safety Ordinance allowed the police “an element of discretion” in identifying which roadside activity posed a threat to public safety and had to be stopped. The vote approving the proposals nonetheless included an express repeal of the City's existing provision for tag day permits.

That vote came in January of 2013, when the City Council adopted the Aggressive Panhandling Ordinance and the Pedestrian Safety Ordinance, codifying them at ch. 9, § 16(d) and ch. 13, § 77(a) of the Worcester Revised Ordinances, respectively. After a “grace period” during which the police distributed flyers telling panhandlers and other Worcester residents about the new ordinances, but made no arrests, the police began enforcement. Between March 1 and March 20, 2013, they arrested four individuals for violating the Aggressive Panhandling Ordinance, including one man arrested twice; all four were given multiple warnings about the new rules prior to arrest. The record shows no arrests for violation of the Pedestrian Safety Ordinance. When protestors staged a small demonstration against the ordinances in February of 2013, featuring individuals soliciting donations from traffic islands, the police did not disturb the protest.¹

B.

Appellants Robert Thayer and Sharon Brownson are homeless people who regularly solicit donations on the sidewalks of Worcester, commonly stepping into the roads to receive contributions. Both have been warned by police that they faced arrest unless they stopped panhandling this way. Appellant Tracy Novick is an elected member of the Worcester School Committee who has customarily displayed political signs on median strips and traffic circles during the campaign season.

In May of 2013, Thayer, Brownson, and Novick brought this suit challenging the new ordinances as violating their rights under the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth. They sought declaratory and injunctive relief and monetary damages. The First Amendment claim has been presented as a facial challenge based on substantial overbreadth, and we continue to regard it as such here. The vagueness claim is necessarily of the as-applied variety. See Holder v. Humanitarian Law Project, 561 U.S. 1, 18–19, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (“We consider whether a statute is vague as applied to the particular facts at issue, for ‘[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’ ” (alteration in original) (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982))). The equal protection challenge seems to include both varieties, as we will mention again later.

The following October, the District Court for the District of Massachusetts denied a preliminary injunction. Although none of the appellants had been arrested under the new laws, the court found that all three had standing to sue, because all engage in activities that reasonably lead them to expect the...