Pictured: First Amendment activist Deborah Flitman, plaintiff in the case.
United States District Court Chief Judge William Smith today signed an order declaring the City of Cranston’s anti-panhandling ordinance unconstitutional and barring the City from enforcing it or enacting any similar ordinance. The six-page consent judgment was entered with the agreement of the City and the plaintiffs in the case. This ends a four-year battle between the ACLU of Rhode Island and the City over the ordinance, which was passed in 2017 by the Cranston City Council by the Republican majority and with no Democratic votes.
“After consultation with the city’s special legal counsel and the city solicitor’s department, I have determined it is in the Cranston taxpayers’ best interest to end this litigation,” said current Cranston Mayor Kenneth Hopkins. “During the transition and in my first few months in office I have been carefully reviewing the various pending litigation involving the City. 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.”
Hopkins was on the City Council and voted in favor of the ordinance when it was presented. The City Council hearing lasted a long time, and no one who testified, all Cranston residents, testified in favor of the ordinance. “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,” admitted Mayor Hopkins.
The ordinance, barring any person from entering a roadway “for the purpose of distributing anything to the occupant of any vehicle or for the purpose of receiving anything from the occupant of any vehicle,” was enacted in February 2017 by a 5-4 vote of the City Council. ACLU of RI cooperating attorney Lynette Labinger filed suit against the ordinance, arguing that it violated the First Amendment right of individuals to solicit donations and to distribute literature on Cranston roadways. In response, Judge Smith issued a temporary restraining order against the ordinance’s enforcement, and that order remained in effect while discovery in the case proceeded.
Hopkins noted that as part of the settlement, the City will reimburse the ACLU for some legal expenses incurred. The City will reimburse the ACLU a total of $140,000 that can be paid over two fiscal years. “We have the funds available and our finance department will coordinate payment with legal counsel.” Hopkins stated, “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.
Lanni was right: Had the City continued to fight in court, the total could have exceeded $500k.
Plaintiffs in the lawsuit settled today were the R.I. Homeless Advocacy Project; two Cranston residents – Karen Rosenberg and Deborah Flitman – who wanted to leaflet from traffic islands but were barred from doing so under the ordinance; and Francis White, Jr, a disabled and formerly homeless person, who has occasionally relied upon panhandling to support himself.
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Another aspect of the consent judgment requires the City “to notify all Cranston prosecutors and law enforcement officers of the issuance” of the judgment and of “their obligation to refrain from enforcing” the ordinance. The consent judgment allows the City to seek to dissolve the permanent injunction after two years “due to a change in circumstances or in the law,” (as in, the First amendment is repealed?) and also allows police to continue to enforce traffic safety ordinances “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.”
“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,” said Mayor Hopkins.
“This is a significant victory for the exercise of First Amendment rights,” said Lynette Labinger. “Our lawsuit established beyond question that there is simply no valid ‘public safety’ basis for interfering with a person’s constitutional right to leaflet or to ask for help from other members of the public. We applaud the City’s new administration for recognizing this fact and agreeing to end efforts to criminalize asking for financial assistance on city streets, sidewalks and medians.”
“Anti-panhandling ordinances serve only to criminalize poverty,” said Steven Brown, ACLU of RI executive director. “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.”