HILLMAN, District Judge.
In January of 2013, the City of Worcester ("City") adopted two ordinances aimed at controlling aggressive panhandling. Specifically, the City of Worcester Revised Ordinances of 2008, as amended through February 5, 2013 ("R.O.") ch. 9, § 16 ("Ordinance 9-16") makes it "... unlawful for any person to beg, panhandle or solicit in an aggressive manner." R.O. ch. 13, § 77(a) ("Ordinance 13-77") prohibits standing or walking on a traffic island or roadway except for the purpose of crossing at an intersection or crosswalk, or entering or exiting a vehicle or "for some other lawful purpose."
In 2005, the City implemented an action plan to reduce the incidents of panhandling in the City. That plan contemplated public education, increased involvement by social service agencies and treatment providers, and enforcement strategies. It also featured billboards which read "Panhandling is not the solution" in an effort to discourage the citizenry from giving money directly to panhandlers instead of an appropriate social service agency. See Complaint, at Ex. 1. For reasons that are unclear, that plan languished until 2012 when the City sought guidance from City Manager Michael O'Brien ("City Manager O'Brien") on how to implement a new strategy to reduce panhandling throughout the City. In a July 12, 2012, communication to the City Council, City Manager O'Brien reported that: "[t]here is no current mechanism for tracking or compiling statistics on panhandling or its impact on the community by the City or any of our community partners or local social service agencies." Id., at Ex. 2 ("July Memorandum"). He suggested that the solution should involve a "multi-faceted, community-wide response that incorporates direct service providers, non-profit agencies, area businesses, policymakers, and public services." Id. He also related a Department of Justice caution that "`law enforcement alone is seldom effective in reducing or solving the problem.'" Id.
As part of his analysis of the problem, City Manager O'Brien acknowledged that
On October 30, 2012, City Manager O'Brien followed up his July Memorandum by announcing the results of a City led "data collection effort ... to understand and assess the scope of panhandling" in the City. See Complaint, at Ex. 3. That data collection effort compiled the results of outreach by an experienced social worker who, along with 16 case workers, engaged 38 panhandlers. In furtherance of the goal to understand and assess the scope of panhandling, these individuals worked with panhandlers for purposes of educating them about resources and services available to them. Id. For example, the outreach worker referred some of the panhandlers to housing and financial assistance programs and others to mental health and substance abuse treatment services. City Manager O'Brien stressed the importance of the outreach efforts because "it takes time to work with routine panhandlers in order to effectively change their behavior pattern and develop service plans in conjunction with their existing providers." Id. On the record before me, it is unclear whether the City is continuing these outreach efforts.
In addition to touting the value of engagement, education, and connection with services, City Manager O'Brien also opined that the practice of soliciting for donations by walking in and out of traffic is inherently dangerous and needed regulation. Id. The two ordinances which are the subject of this lawsuit were passed to address these concerns. Specifically, Ordinance 9-16 regulates the time, place, and manner of panhandling by outlawing "aggressive panhandling and solicitation." Ordinance 13-77 prohibits standing or walking on a traffic island or roadway except for the purposes of crossing at an intersection or crosswalk, for the purpose of entering or exiting a vehicle or "for some lawful purpose."
In a lesson on the law of unintended consequences, Ordinance 13-77, while preventing panhandling on public streets and intersections, also serves to prohibit tag day fundraisers and political speech much to the dismay of local charities, civic organizations youth sports teams, and politicians running for office. Concerns about these unintended consequences were raised during the City Council debate on the passing of the then proposed ordinances. Also raised was the concern that these ordinances were unnecessary because existing laws already serve to regulate the aggressive behavior which the proposed ordinances targeted. See Decl. of Todd Marabella (Docket No. 4) ("Marabella Decl."), at Ex. 9 (audio file of November 13, 2013 Worcester City Council Meeting) and Ex. 10 (unofficial transcript of November 13, 2013 Worcester City Council Meeting) (together, "City Council Meeting Tr."). Although some City Councilors voiced opinions suggesting that the purpose of these ordinances was primarily to eradicate panhandling in the City, Mayor Petty emphasized that in his mind, the purpose of the proposed ordinances was to address a "purely a public safety issue." Id.
On March 20, 2013, the Worcester Telegram & Gazette reported that four people had been arrested in March for violating Ordinance 9-16; one of them was arrested twice. Id., at Ex. 12. According to the
In determining whether to issue a preliminary injunction, the Court must weigh four factors:
Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 162 (1st Cir.2004) (citation to quoted case omitted). "The sine qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity." New Comm. Wireless Services, Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.2002).
As a preliminary matter, the Defendants argue that Plaintiffs have no likelihood of success on the merits because they lack standing to maintain the suit. The Plaintiffs, Robert Thayer and Sharon Brownson, are individuals who regularly solicit donations. The Plaintiff, Tracy Novick, is a Worcester School Committee member who has regularly stood on median strips and traffic circles within the city holding campaign and political signs. Each of these Plaintiffs has filed an affidavit in support of their application for injunctive relief. The City argues that since the Plaintiffs have not been arrested, their challenge is a facial challenge of the ordinance rather than an "as applied" challenge. They posit that the Plaintiffs have not shown an objectively reasonable possibility that the ordinance would be applied to their activities.
"The necessity to establish constitutional standing is rooted in the case or controversy requirement of the Constitution. `[T]he standing question is whether the plaintiff has "alleged such a personal stake in the outcome of the controversy" as to warrant his invocation of federalcourt jurisdiction and to justify exercise of the court's remedial powers on his behalf.'" See Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir.2003) (quoting Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); see also U.S. Const. art. III, § 2. "For standing to challenge the constitutionality of a particular municipal ordinance ... plaintiffs [must] show an objectively reasonable possibility that the ordinance would be applied to their own activities." Sullivan v. City of Augusta, 511 F.3d 16, 25 (1st Cir.2007) (citing Osediacz v. City of Cranston, 414 F.3d 136, 143 (1st Cir.2005)).
That the Plaintiffs have not been arrested for violating either ordinance does not preclude a finding that they have the requisite standing to mount their claims. See Mangual, 317 F.3d at 56 ("[a] party need not violate the statute and suffer the penalty in order to generate a conflict worthy of standing in federal court"); see also Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (plaintiff who challenges statute must demonstrate realistic danger of sustaining direct injury as result of its operation or enforcement, but does not have to await consummation of threatened injury to obtain
Both types of cases "hinge on the existence of a credible threat that the challenged law will be enforced. If such a threat exists, then it poses a classic dilemma for an affected party: either to engage in the expressive activity, thus courting prosecution, or to succumb to the threat, thus forgoing free expression. Either injury is justiciable. Conversely, if no credible threat of prosecution looms, the chill is insufficient to sustain the burden that Article III imposes. A party's subjective fear that she may be prosecuted for engaging in expressive activity will not be held to constitute an injury for standing purposes unless that fear is objectively reasonable." Id. at 14.
All three Plaintiffs have acknowledged engaging in conduct that would be proscribed under the ordinances. Both Mr. Thayer and Ms. Brownson step into the street occasionally to receive contributions from passing motorists and both have been warned by the police to stop soliciting on City sidewalks or face arrest. Ms. Novick represents that she and her campaign workers regularly hold signs on medians and traffic islands and that she now fears that she will be arrested for this conduct. There can be no doubt that should Mr. Thayer and Ms. Browning continue to engage in the conduct they describe, they would be subject to arrest. Indeed, City police officers have arrested individuals who have engaged in similar conduct after receiving prior warnings. Therefore, as to them, the threat is objectively real and I find that they have standing to challenge Ordinance 9-16.
With respect to Ms. Novick, it is a closer call. Persons violate Ordinance 13-77 only if they refuse to move along after being advised to do so by a police officer. At a meeting of the Worcester Joint Public Health & Human Services and Municipal Operations Committee, the City Solicitor indicated that Ordinance 13-77 was worded in such a way as to give police officers discretion regarding its enforcement. If a person or people are congregated on a traffic island or median and do not pose a threat to public safety, then the officer would have the discretion to allow the person(s) to remain. See Marabella Decl., at Ex. 11 (audio file) and Ex. 12 (unofficial transcript). Ms. Novick is currently seeking re-election to the Worcester School Committee and, as she has in past elections,
Soliciting contributions is expressive activity that is protected by the First Amendment. In Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), the United States Supreme Court struck down an ordinance prohibiting solicitations by charitable organizations that did not use at least seventy-five per cent of their revenues for charitable purposes. The Court reaffirmed that "charitable appeals for funds, on the street or door to door, involve a variety of speech interests-communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes-that are within the protection of the First Amendment.... [S]olicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political or social issues, and ... without solicitation the flow of such information and advocacy would likely cease." Id. at 632, 100 S.Ct. 826; see also United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (solicitation is recognized form of speech protected by First Amendment); Benefit v. City of Cambridge, 424 Mass. 918, 922-23, 679 N.E.2d 184, 187-88 (1997) (same). Furthermore, it is black letter law that political speech of the type in which Ms. Novick seeks to engage, i.e., she and her supporters holding up political signs and waving to passing motorists and pedestrians, is speech which is afforded the strongest protection under the First Amendment. See Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1021 (9th Cir.2009) (political speech is core First Amendment speech critical to function of our democratic system).
Because the activities in which the Plaintiffs seek to engage are protected speech, the Court's first task is to determine what level of judicial scrutiny to apply in this case. "The Supreme Court has established different levels of scrutiny for analyzing alleged First Amendment violations, depending on where the speech takes place. In traditional public fora, `the government's ability to permissibly restrict expressive conduct is very limited.' In such locations, First Amendment protections are strongest and regulation is most suspect." Id. (internal citations and citation to quoted case omitted). Since in this
"The First Amendment generally prevents government from proscribing speech ... because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992). However, "even so precious a freedom must, in particular iterations, be balanced against the government's legitimate interests in protecting public health and safety". McCullen v. Coakley, 571 F.3d 167, 175 (1st Cir.2009) (citing Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919) ("The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre.")).
Id. (internal citations and citation to quoted cases omitted); see also Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) ("[T]he appropriate level of scrutiny is initially tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content"); Clatterbuck, 708 F.3d at 555.
The Plaintiffs allege that the ordinances are content-based and that I must apply strict scrutiny. Not surprisingly, the Defendants say that they content-neutral and thus entitled to intermediate scrutiny. If the ordinance is content-based, the ordinance will survive only if it is the least restrictive means available of furthering a compelling government interest. If I find that the ordinance is content neutral, then the Court's inquiry is limited to whether the ordinances: (1) possess adequate standards to guide the exercise of official discretion, and (2) are narrowly tailored to a significant government interest while leaving open satisfactory alternative means of communication. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Ward, 491 U.S. at 791, 109 S.Ct. 2746. For the reasons set forth below, I find that the ordinances in question are content-neutral.
In determining whether Ordinance 9-16 is narrowly tailored to serve the governmental interest at stake, the preamble attempts to justify the legislative balancing of the right to exercise First Amendment freedoms, against the rights of the City to impose reasonable time, place, and manner restrictions on panhandling. That preamble states 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, or immediately followed or preceded with, aggressive behavior." Ordinance 9-16, at ¶ (a)(3). While this statement of purposes is somewhat self-serving it does establish the ostensible reason for enacting the ordinance. It also is responsive to City Manager O'Brien's report that, during calendar year 2011, Worcester Police were dispatched to 181 incidents of aggressive behavior by individuals who may have been panhandling.
In the case of Clatterbuck, the Fourth Circuit reversed the lower court's grant of a Rule 12(b)(6) motion to dismiss a challenge to an ordinance forbidding soliciting in a particular part of the City of Charlottesville. The court pointed out that:
Clatterbuck, 708 F.3d at 559 (internal citations omitted); see, also Kokinda, 497 U.S. at 733-36, 110 S.Ct. 3115.
The Supreme Court has held that a municipality's "own implementation and interpretation"
The Courts of Appeal have followed suit in determining that preamble language can assist their understanding of a statute or ordinance. See, e.g., Ass'n of Am. Railroads v. Surface Transp. Bd., 237 F.3d 676, 681 (D.C.Cir.2001) (citing Wyoming Outdoor Council v. United States Forest Serv., 165 F.3d 43, 53 (D.C.Cir.1999) ("[A]lthough the language in the preamble of the statute is `not an operative part of the statute,' it may aid in achieving a `general understanding' of the statute.")); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 723 n. 28 (7th Cir.2003) (noting that when federal courts evaluate the "predominant concerns" motivating the enactment of a statute or ordinance, they may look at materials including "any preamble or express legislative findings associated with it"). The First Circuit has utilized these principles as well; in URI Student Senate the court analyzed the preamble of an ordinance that allowed police to mark noisy houses with an "x," in order to determine whether the ordinance was unconstitutionally vague. See at URI Student Senate, 631 F.3d at 14.
One Eleventh Circuit case, Wise Enterprises, Inc. v. Unified Government of Athens-Clarke County, Georgia, 217 F.3d 1360 (11th Cir.2000), is instructive with respect to the weight and use a court may allot to preamble language. In that case, the appellant ran an adult entertainment establishment that was negatively affected by an Athens-Clarke County's ban on nude barroom dancing in establishments serving alcoholic beverages. See id. at 1362. After determining that the ordinance should be considered content-neutral, the Eleventh Circuit then applied the intermediate scrutiny test set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) to assess the ordinance's validity. The second prong of that test required the court to analyze whether "the ordinance furthers [a substantial interest]." Id. at 1364. The court recognized that for the "[Athens-Clarke] County to meet its burden under this element, it must have `some factual basis for the claim that [adult] entertainment in establishments serving alcoholic beverages results in increased criminal activity.'" Id. (citation to quoted case omitted; emphasis in original). Consequently, the court turned to statements in the preamble to the ordinance, which established that the County had made findings that such behavior often led to increased criminal behavior, depression of property values, increased use of law enforcement personnel, and acceleration of community blight. Id. at 1363-64 (quoting Athens-Clarke County Code § 6-11 (1997)). The preamble language, together with minutes of a county commission meeting that had been provided to the court, established that "the County's enactment of the ordinance was based upon the experiences of other urban counties and municipalities, copies of studies from other jurisdictions examining the problems associated with public nudity in conjunction with the sale
While I appreciate and understand that legislative preambles are necessarily self-serving, I nevertheless give them credibility in determining that the restrictions on speech in the ordinances are narrowly tailored to serve the governmental interest. This is particularly true in this case where the minutes of meetings involving City Council members present somewhat of a mixed bag. In discussing Ordinance 9-16, some City councilors were clearly concerned with the safety and welfare of both those individuals engaged in solicitation as well as members of the public being solicited; at the same time, the primary concern of other councilors appeared to be that panhandling was a blight on the City which should be eliminated at all costs. As to Ordinance 13-77, the primary concern of the City Council appeared to be the safety and welfare of the public. See generally City Council Meeting Tr.
The City has a legitimate interest in promoting the safety and convenience of its citizens on public sidewalks and streets. See Madsen v. Women's Health Center, 512 U.S. 753, 768, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) ("State also has a strong interest in ensuring the public safety and order, in promoting the free flow of traffic on public streets and sidewalks ..."); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (recognizing state interest in safety and convenience of citizens using public fora); Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) (recognizing state interest in safety and convenience on public roads); Ayres v. City of Chicago, 125 F.3d 1010, 1015 (7th Cir.1997) ("There are unquestionable benefits from regulating peddling, First Amendment or otherwise, [including] ... the control of congestion."). Additionally, a government regulation can be considered narrowly tailored "`so long as the... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (citation to quoted case omitted). This means the regulation need not be a perfect fit for the government's needs, but cannot burden substantially more speech than necessary. Id. at 800, 109 S.Ct. 2746. Furthermore, a time, place or manner restriction need not be the least restrictive means of achieving the government purpose, so long as it can be considered narrowly tailored to that purpose. Id. at 798, 109 S.Ct. 2746. Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir.2000).
I find that both ordinances are narrowly tailored to achieve their intended purposes: Ordinance 9-16 bans only aggressive forms of solicitation — those which are most likely to result in possible violent confrontation, that are most likely to intimidate those being solicited and that are most likely to endanger the solicitor and/or members of the general public. Ordinance 13-77 essentially bans people from congregating and/or loitering on traffic islands, medians and other like public ways under circumstances where such conduct could prove distracting to drivers and pedestrians.
Finally, the ordinances also leave open ample alternative channels for communication. Worcester has determined that vocal requests for money create a threatening environment, or at least a nuisance for some citizens. The City has
That Ordinance 13-77 prohibits not just solicitation, but political and other protected types of speech in a rotary, traffic island or crosswalk was the cause of much discussion in the City Council. One of the most vibrant displays of democracy in action takes place during rush hour and on Saturday mornings at election time. The cacophonous political sign holders that populate the rotaries, traffic islands, and intersections of our communities represent the electoral process in full bloom. They are colorful, persistent, and, at times distracting. Rotaries and traffic islands are especially attractive venues for both political sign holders and those seeking to solicit for funds because of their clear sight lines and heavy traffic. They are also dangerous exercises in survival driving skills.
Plaintiffs assert that the ordinances fail to meet the requirements of the Due Process Clause of the Fourteenth Amendment in that they are so vague and standardless that they leave the public uncertain as to the conduct prohibited. More particularly, Plaintiffs argue that the ordinances fail to adequately define the conduct which is prohibited. I disagree.
URI Student Senate, 631 F.3d at 13-14.
The Plaintiffs strained arguments in support of their attempt to challenge the ordinances on vagueness grounds are at best, disingenuous; therefore, a protracted discussion of this issue is simply not
Plaintiffs assert that the ordinances violate the Equal Protection Clause of the Fourteenth Amendment because they discriminate against the poor and homeless. In support, the Plaintiffs argue that although they purport to apply to anyone who engages in prohibited activities, the evidence is they target the poor and homeless.
"The Equal Protection Clause protects against invidious discrimination among similarly situated individuals or implicating fundamental rights. The threshold element of an equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by government decision-makers. Strict scrutiny is appropriate only if a classification infringes on a class of people's fundamental rights or targets a member of a suspect class. When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized. Under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." Speet v. Schuette, 889 F.Supp.2d 969, 978-79 (W.D.Mich.2012) aff'd, 726 F.3d 867 (6th Cir.2013) (internal quotations and citations omitted).
The preamble to Ordinance 9-16 and the minutes of the City Council meeting suggest that the ordinances were enacted for health and safety reasons and, in part, to eliminate the incidents of panhandling
For the reasons set forth above, I find that the Plaintiffs have failed to establish a likelihood that they will succeed on the merits of their claims.
In the First Amendment context, the likelihood of success on the merits is the linchpin of the preliminary injunction analysis. As the Supreme Court has explained, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); see also Asociación de Educación Privada de Puerto Rico, Inc. v. García-Padilla, 490 F.3d 1, 21 (1st Cir.2007) (applying Elrod to irreparable harm component of permanent injunction analysis); Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir.1981) ("It is well established that the loss of first amendment freedoms constitutes irreparable injury."). Accordingly, irreparable injury is presumed upon a determination that the movants are likely to prevail on their First Amendment claim. Sindicato Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1, 10-11 (1st Cir.2012). I have found that there is little likelihood of success on the merits and therefore, will not presume irreparable harm. I additionally find that the Plaintiffs will not suffer irreparable harm. Those that would solicit for funds will not suffer lost opportunity as Plaintiffs suggest. Their opportunities are simply proscribed as to time, place, and manner. Plaintiff, Novick, will still be able to campaign, just not from the medians, traffic islands or the like.
In my analysis, I have found that the City has a legitimate reason for enacting the ordinances in question, that these interests are substantial and necessarily outweigh the Plaintiffs' interest in the unfettered right to solicit in public areas. I further find that it is in the public's interest to be safe and secure in their person, and for safety of all to be maintained on City streets, sidewalks, traffic islands and similar public areas.
IT IS HEREBY ORDERED that:
Plaintiffs' Motion For Preliminary Injunction (Docket No. 2) is
