SJC to weigh constitutionality of Fall River’s use of panhandling law due to lawsuit against City

Chris Van Buskirk

Weighing free speech and public safety arguments, the Supreme Judicial Court is set to hear arguments Monday in a case challenging the constitutionality of a law preventing people from panhandling on public roads.

ACLU of Massachusetts filed the lawsuit in March 2019 on behalf of Massachusetts Coalition for the Homeless and two Fall River residents experiencing homelessness who dispute the Fall River Police Department’s use of the statute. The law, the plaintiffs argue, restricts constitutionally protected free speech and impacts individuals with limited incomes who seek charity “to help make ends meet,” a court filing said. “Because the statute is a content-based restriction that infringes the free speech rights of low-income persons who depend on charity for their own support, and because it cannot satisfy strict scrutiny, it violates both the First Amendment and Article 16,” the plaintiffs’ court filing said.

The Fall River Police Department used the law to file more than 150 criminal complaints in 2018 and 2019, including against the two Fall River residents, according to ACLU of Massachusetts.

In its filing, the department argues the law is tailored to prohibit people from signaling to a moving vehicle or approaching vehicles stopped at traffic signals. “Section 17A is a very specifically tailored measure to meet a legitimate and compelling governmental interest, namely vehicular and pedestrian safety, and prevention of traffic congestion,” attorneys for the department wrote. “The conduct that leads to being charged includes engaging in specific behavior of repeatedly walking out into the highway off-ramp to oncoming motorists, obstructing traffic flow resulting in increasing traffic congestion at a busy traffic area.”

Bristol County Superior Court granted a preliminary injunction in April 2019 against continued enforcement of the section of law that falls under Chapter 85 governing ways and bridges.

An attorney representing the city of Fall River and Police Chief Albert Dupere filed a request to waive oral arguments on Oct. 27.