NEWS

Settlement in panhandling ordinance case

Posted 4/28/21

By DANIEL KITTREDGE A long-running legal challenge to the city's 2017 ordinance aimed at curbing roadside solicitation - more commonly known as panhandling - has been settled. U.S. District Court Judge William E. Smith last week issued a consent judgment

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NEWS

Settlement in panhandling ordinance case

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A long-running legal challenge to the city’s 2017 ordinance aimed at curbing roadside solicitation – more commonly known as panhandling – has been settled.

U.S. District Court Judge William E. Smith last week issued a consent judgment in the case of Rhode Island Homeless Advocacy Project et al. v. City of Cranston, bringing an end to the litigation with a finding that the ordinance is unconstitutional and that the city is “permanently enjoined” from enforcing it.

As part of the consent judgment, Cranston is ordered to pay $140,000 to the plaintiffs to cover costs and attorney fees. An initial payment of $70,000 is due within 60 days of the court’s order, with the remaining half to be paid by July 31.

The judgment also allows the city, after two years, to “move to dissolve this permanent injunction due to a change in circumstances or in the law.”

Police, meanwhile, may continue to enforce city ordinances in instances “where the act of distributing anything to the occupant of any vehicle or the act of receiving anything from the occupant of any vehicle is not an element of the offense.”

Mayor Ken Hopkins, in an April 20 statement, said he authorized a settlement in the suit – which was backed by the ACLU’s Rhode Island chapter – after concluding “it is in the Cranston taxpayers’ best interest to end this litigation.”

“During the transition and in my first few months in office I have been carefully reviewing the various pending litigation involving the City,” the mayor said in the statement. “Based on the posture of this case in Federal Court and the recommendation of Marc DeSisto, our well-respected special counsel, I felt that we should find an acceptable resolution that minimizes future financial exposure to the City.”

The mayor’s statement continues: “We have the funds available and our finance department will coordinate payment with legal counsel. While $140,000 is not insignificant, my former council colleague, the late John Lanni, had predicted that a challenge to the ordinance would end up costing the city $500,000.” The statement attributes Lanni’s remarks to a Feb. 15, 2017, council meeting.

The panhandling issue and its related legal cases date back several years.

The ACLU filed its first case against the city in 2015, challenging the constitutionality of a city ordinance barring panhandling. A settlement in that case was reached in 2016, and the city was prohibited from enforcement of the ordinance.

Then, in 2017, a new ordinance was adopted that sought to prohibit the passing of money or other items between the occupants of vehicles and people within roadways.

The ordinance, which was adopted on a 5-4 vote, had been defeated under a Democratic-controlled council in late 2016, but was passed once Republicans took control of the body with the start of a new term in 2017.

A new legal challenge supported by the ACLU soon followed, and Smith issued a temporary restraining order preventing the city from enforcing the measure while the case was ongoing. The case continued under the administration of former Mayor Allan Fung, who left office in January after 12 years due to term limits.

Hopkins, who voted in favor of the ordinance as a new citywide councilman in 2017, added in his statement: “When I reviewed the case with legal counsel, I felt that it was time to end the pursuit of this worthwhile public safety effort. My responsibility as Cranston’s Mayor is to exhibit leadership and make difficult decisions. The settlement of this case is warranted. I supported the majority on the City Council in 2017 consistent with my strong views that our citizens need the best protection in our neighborhoods and on our streets.”

The mayor’s statement also points to his administration’s push for new rules to curb the illegal use of ATVs, dirt bikes and other off-road vehicles on city streets. An ordinance meant to strengthen enforcement authority related to that issue won the City Council’s approval Monday, and Hopkins said he will sign the measure.

“It is time to end this time consuming and costly lawsuit and move on to other efforts to protect the public on our streets and in our neighborhoods,” his statement concludes.

The ACLU celebrated last week’s consent judgment as a “major victory for the First Amendment and the rights of the poor.”

A statement from the organization reads: “The ACLU has long opposed ordinances like these for criminalizing poverty. Although City officials had claimed the ordinance was adopted as a ‘public safety’ measure and cited the number of car accidents at various city intersections, the consent judgment notes that discovery conducted for the lawsuit ‘has not substantiated that there is any correlation between pedestrian accidents and the soliciting of donations and leafletting on the city streets between 2007 and the present,’ nor did it show any increase in vehicle or pedestrian accidents during the time the ordinance has not been enforced.”

The ACLU’s statement notes that the Rhode Homeless Advocacy Project consists of two Cranston residents, Karen Rosenberg and Deborah Flitman, “who wanted to leaflet from traffic islands but were barred from doing so under the ordinance,” along with Francis White Jr., “a disabled and formerly homeless person, who has occasionally relied upon panhandling to support himself.”

Steven Brown, executive director of the ACLU of Rhode Island, added: “Anti-panhandling ordinances serve only to criminalize poverty. The ACLU is hopeful that this consent judgment will mark the last attempt by municipalities across the state to punish those who peacefully seek to exercise their First Amendment right to solicit financial support from strangers.”

Others have weighed in as well. The new advocacy group Cranston Forward issued a statement calling the settlement “a victory for compassion and for the rights of the poor and brings an end to a costly and shameful political stunt by former Mayor Fung and his allies on the City Council (including current Mayor Ken Hopkins).”

Cranston Forward’s statement quotes Rosenberg: “The Mayor and the Council knew this ordinance was unconstitutional and that it would be challenged, and squandered hundreds of thousands of tax dollars on this foolish exercise anyway, in order to pander to the meanest impulses of the Trump base. It makes me mad to think that money could have been used to meet the needs of Cranston residents.”

It continues: “Cranston Forward hopes that going forward, instead of attacking poor and marginalized people to score cheap political points, the City’s administration and governing majority will focus on addressing the root causes of panhandling, such as lack of access to living-wage jobs, affordable housing, and mental health services.”

In an appearance last week on the Herald’s Radio Beacon podcast, Ward 3 Councilman John Donegan, who had been part of demonstrations against the city’s panhandling ordinances prior to his election to office, said Hopkins made the “right decision” to pursue a settlement in the case. He did say the $140,000 cost of the settlement is not reflective of the true sum spent on the matter over the years, a figure that would include the city’s legal costs.

“Unfortunately, it’s [a decision] that came four years after [Hopkins] voting in favor of the ordinance, as did others, over the concerns that were raised by a lot of activists at the time, including myself,” he said.

He added: “It’s both an ordinance that is from a policy standpoint objectionable – it doesn’t really address any of the root causes of why we see people panhandling – and also the issues over the First Amendment. But the important thing is that it’s over. I think it’s a chapter that we can start to put behind us. Unfortunately, it’s been an expensive one.”

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