By Lyle Moran
LOWELL -- The American Civil Liberties Union of Massachusetts and its cooperating counsel have sued the city in federal court, alleging its ordinance banning panhandling in the downtown historic district is unconstitutional.
The ACLU and Goodwin Procter LLP of Boston filed the suit in U.S. District Court on behalf of three plaintiffs, all homeless Lowell residents.
The attorneys for the plaintiffs argue that the city's ordinance -- originally passed by the City Council in November and amended in February -- violates the first and 14th amendments to the Constitution by restricting peaceful, nonthreatening and constitutionally protected speech.
A hearing on the plaintiffs' request for a preliminary injunction, which prevents the city from enforcing its panhandling ordinance while the case proceeds, is scheduled for Monday at 2:30 p.m. in U.S. District Court in Boston.
The plaintiffs also want the court to permanently halt the city from enforcing the ordinance.
"There is no need for the ordinance," said Sarah Wunsch, an attorney for the ACLU. "It is an attempt to hide from the public sphere people who are needy or have other problems from asking for help."
The plaintiffs also argue the ordinance discriminates against the homeless and that Lowell city councilors "wanted to ban panhandling to remove the homeless from Lowell.
City Solicitor Christine O'Connor said in a brief written statement Friday that once the city was put on notice of the legal claims, the city did not enforce the ordinance. The city is defending its ordinance in court.
"Plaintiffs seek to impute nefarious intent to the city's charting of a course that recognized the rights of panhandlers while also seeking to address issues that were having a strongly adverse impact on the city and its citizens," the city wrote in its opposition to the motion for a preliminary injunction.
"The city freely acknowledges that it employed research into case law, in order to identify solutions pursued by other communities that had proven effective, and indeed, had been upheld by the courts."
The city denied an intent to discriminate against the homeless.
There have been no arrests for panhandling since the ordinance was approved by the City Council last November.
The City Council voted 6-2 to approve the ordinance, with then-Councilors Vesna Nuon and Joseph Mendonca opposed. Then-Councilor Marty Lorrey had suggested the ordinance.
During the first 11 months of 2013, Lowell police received 237 calls related to panhandling, and Lorrey and others had said panhandling was becoming a growing problem in the city.
Police observing anyone aggressively panhandling in the downtown historic district could arrest them under the ordinance.
The original ordinance also included exemptions to the law for nonprofits, civic or benevolent organizations described in Section 501(c) of the Internal Revenue Code.
The ordinance stipulated that violators could be found guilty "for each day during which the violation is committed, continued or permitted." Upon conviction, each offense can be punishable by a $50 fine.
The ACLU and Goodwin Procter contacted the city to express concerns about the ordinance and indicate they were considering suing the city.
The revised law eliminated the exemptions for nonprofits and added a section on "aggressive panhandling."
Panhandling in an "aggressive manner" is defined in the amended ordinance in a variety of different ways, including:
* Continuing to engage in panhandling toward a person after the person has given a negative response to such soliciting.
* Intentionally touching or causing physical contact with another person or their property without that person's consent.
Police observing anyone aggressively panhandling in the downtown historic district can arrest them.
Attorneys for the plaintiffs suing the city that the amended ordinance made things worse by banning all solicitation downtown.
The attorneys also criticized the city for the section on "aggressive panhandling," which they said in a court filing "sets up hundreds of buffer zones throughout the downtown area in which nonaggressive speech -- such as merely holding a sign asking for help -- is banned."
The city responded in its opposition, "The behavior prohibited by the city (and by numerous other jurisdictions) as "aggressive panhandling" is objectionable under the standard of common sense, regardless of any marshalling of real-world evidence."
In May 2013, the ACLU and Goodwin Procter filed suit in federal court in Worcester on behalf of three Worcester residents to block two anti-panhandling ordinances enacted by the city of Worcester.
The suit alleged the ordinances violated the constitutional right to peacefully solicit donations in public and to engage in political and other speech.
The federal district court denied the plaintiffs' motion for a preliminary injunction to halt enforcement of the ordinances while the suit proceeded, a decision that was appealed to the U.S. Court of Appeals for the First Circuit.
The U.S Court of Appeals for the First Circuit did grant an injunction against the part of a Worcester ordinance that banned "soliciting any person in public after dark, which shall mean the time from one-half hour before sunset to one-half hour after sunrise."
Lowell's amended ordinance with language concerning aggressive panhandling is almost entirely derived from one of two anti-panhandling ordinances in Worcester.
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