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Advocates Challenge Local Ordinances Targeting New Jersey’s Homeless

Successful challenge to New Brunswick panhandling ban spurs statewide look at municipal ordinances deemed violations of free-speech rights

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Advocates for the homeless hope New Brunswick’s recent agreement to repeal local ordinances that ban panhandling will send a message to other communities in the state with similar laws.

The lawsuit and settlement centered on John Fleming, a homeless man who was arrested numerous times on charges that his panhandling violated two city ordinances.

The New Jersey chapter of the ACLU joined with the McCarter & English law firm to represent both the New Jersey Coalition to End Homelessness and Fleming, arguing that the man’s right to free speech had been violated.

Jeanne LoCicero, deputy legal director for the ACLU of New Jersey, said the lawsuit was “about the fundamental right to free expression.” Fleming was arrested and charged four times for sitting along public streets with a sign asking for money. He contacted the ACLU, which won an injunction in December blocking New Brunswick from enforcing the ordinances.

“The ordinances targeted a particular kind of message,” LoCicero said. “It violates a person’s right to speech if they are subjected to a fine for holding a sign asking for spare change.”

She said panhandling on a public street is no different, from a constitutional standpoint, than a Girl Scout troop soliciting cookie sales or someone taking a poll or collecting signatures on a petition.

“Public sidewalks are quintessential places for free speech,” she said. “They are places where you are able to engage with the community about things that are important to you.”

The city agreed to amend or repeal two ordinances – one requiring a permit to solicit charitable contributions and another banning unauthorized begging or solicitation of food or money. It also will pay a portion of the plaintiff’s attorney fees and make a donation to Elijah’s Promise, a New Brunswick soup kitchen. The city plans to introduce revised rules within 90 days.

The ACLU and the coalition said the New Brunswick rules are not unusual. Numerous communities through out the state have similar bans or rules regulating panhandling and begging on public property. However, they said, the New Brunswick rules violated both the First Amendment to the U.S. Constitution and the Article 1, Section 1 of the state constitution.

Bill Dressel, executive director if the State League of Municipalities, said by email that the league did not have a comment on the settlement. In December, he told the Star-Ledger newspaper that rules covering panhandling were “in flux” and that the New Brunswick case – and a separate case in Massachusetts – “could have profound implications on towns.”

Deb Ellis, executive director of the New Jersey Coalition to End Homelessness, said the group joined the lawsuit because towns have been using these kinds of ordinances to control the homeless, rather than addressing the root causes of the probem. New Brunswick officials, she said, argued that they were enforcing the anti-begging ordinance in the interest of keeping order.

“But the need for dignity is greater,” Ellis said. “No one begs unless they have to.”

Ellis said the lawsuit should send a signal to other towns.

“We hope this settlement would be a cautionary note to other towns who are enforcing other laws like this,” she said.

LoCicero agreed, adding that the ACLU is reviewing all 565 municipal codes in New Jersey to see where else anti-panhandling laws may exist.

She said they have already found numerous examples of anti-begging and anti-panhandling ordinances, but would not discuss the specifics because the review is still in process.

“I can’t tell you about any conclusion, but I can tell you there are a range of things – including outright bans on begging, on requiring people to have approval from chief of police, permits, and various other restrictions and prohibitions.”

Jeffrey Wild, an attorney with Lowenstein Sandler in Bergen County, said the problem goes beyond panhandling prohibitions. A board member for both the coalition and the ACLU, he represented a group of homeless men and women who had set up camp in the woods in Lakewood.

The case garnered national attention after Wild won an injunction against Lakewood, which had attempted to evict the homeless people from the woods. Lakewood reached a settlement in March 2013 that called for all residents of the encampment to be given at least a year of housing.

“I believe it happens in every town, the criminalization of homelessness to one degree or other,” Wild said.

Lakewood, for instance, passed an ordinance in the middle of winter that outlawed the use of wood-burning stoves, which he said was specifically aimed ed at the men and women using such stoves in the Lakewood woods. Other restrictions – on begging, on vagrancy, on sleeping in public – are also used to force the homeless from communities, Wild said. “There are so many ways that municipalities try to get people out of their backyard,” he said. “The criminal laws are a good way, because people don’t question the authority of the police.”

He added that the problem isn’t confined to New Jersey.

A report, “No Safe Place,” issued in December by the National Law Center on Homelessness & Poverty found that “the criminalization of necessary human activities is all too common in cities across the country.”

The report looked at 187 cities nationwide – including Newark, Atlantic City and Trenton in New Jersey -- and found a “prevalence of laws that criminalize homelessness.”

Atlantic City, for instance, has ordinances that ban sleeping in public and loitering, as well as restrictions on sleeping or loitering on beaches, the boardwalk, the oceanfront, and beneath the boardwalk.

Newark is cited by the report as banning sleeping or loitering in parks or recreation areas and banning begging or “aggressive solicitation.”

Trenton, the report said, bans sleeping in public citywide and specifically on sidewalks or on benches or other “appurtenances” in parks and recreation areas. It also bans begging and panhandling.

Of the cities reviewed, the report found, 34 percent had city-wide bans on camping in public, while 57 percent imposed bans in at least some areas; 18 percent banned sleeping in public, while 27 percent banned it in particular public spaces, like parks; 24 percent banned begging citywide, while 76 percent banned it in at least some areas; 33 percent banned “loitering, loafing, and vagrancy” throughout the city, while 65 percent banned it in at least some places; and 9 percent prohibited the sharing of food with the homeless.

“(C)ourts across the country have found that many such laws violate the rights of homeless people,” the report said, “and that many courts have struck down similar laws “on the grounds that they violate constitutional protections such as the right to freedom of speech under the First Amendment, freedom from cruel and unusual punishment under the Eighth Amendment, and the right to due process of law guaranteed by the Fourteenth Amendment.”

Wild said context is important. Laws against camping can be constitutional, for instance, but only if they are not used to target the homeless or any specific group.

“I think anything – it is about context – anything could be unconstitutional as applied,” he said. “If someone has no place else to go in the middle of winter, then (a law prohibiting camping) can be unconstitutional, if there is no other way to survive. Right to survive trumps others.”

In the end, LoCicero said, these kinds of ordinances “target people who are poor,”

“They target the speech of people who rely on other people to survive,” she said. “They violate the rights of poor people.”

And, Wild said, they ultimately allow the problem of homelessness to be swept under the rug.

“Begging is a form of speech, and I am glad that the ACLU has taken this on,” he said. “It is very important that people have a right to communicate in this way – not just because begging is important for them, but because it also puts a spotlight on the problem. When people see homeless people begging they know there is a problem with homelessness.”

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