The American Civil Liberties Union of New Jersey (ACLU-NJ) and New Jersey Coalition to End Homelessness (NJCEH) raised serious constitutional concerns about a ban on panhandling in Asbury Park in a letter (PDF) sent to Asbury Park Mayor John Moor on January 11, 2019.
The letter, authored by Nicholas Insua, a partner at the law firm McCarter & English, on behalf of the ACLU-NJ and NJCEH, advised the city of potential legal liability if the ordinance, enacted in Oct. 2018, remains in place.
The ACLU-NJ urged city leaders to place an immediate moratorium on the discriminatory ordinance and called for rapid repeal of the policy to ensure that panhandling – or being poor – is not criminalized.
“A ban on panhandling is a misguided punishment for being poor, and it’s unlawful,” said ACLU-NJ Legal Director Jeanne LoCicero. “The ordinance is an unconstitutional attack on free speech that preys on those who are most vulnerable. Whether examined from a legal, policy, fiscal, or moral standpoint, criminalizing any aspect of panhandling is the wrong way to approach a problem.”
The ban targets people experiencing homelessness by outlawing “aggressive” requests for immediate donations of money, making the ordinance unlawfully over-inclusive and imposing distinctions based on content, which the Constitution does not allow.
“Criminalizing someone for asking for help is more than just unconstitutional – it’s inhumane and counterproductive,” said Kate Leahy, Director of Operations and Communications for the NJCEH. “Issuing a ticket or arresting someone for being in need compounds the stigma of poverty and homelessness. Ironically, and tragically, penalizing requests for help worsens the underlying economic hardships that make panhandling necessary in the first place.”
The ordinance targets speech itself rather than unlawful behaviors already covered by existing law. The city’s characterization of an impermissible “aggressive manner” includes any approach that could provoke annoyance or cause an “inconvenience” deemed “unreasonable.”
“Every single panhandling ordinance that has been challenged in federal court, including those similar to Asbury Park’s Ordinance, has been found unconstitutional,” said Insua. “The First Amendment protects peaceful requests for donations in public places, and no ordinance can change our essential liberty.”
In 2014, the ACLU-NJ and McCarter & English filed a lawsuit on behalf of the NJCEH against the City of New Brunswick over two ordinances that criminalized begging and panhandling. Both policies were repealed upon settlement, under an agreement in which the city made a sizeable donation to help people experiencing homelessness.
The ACLU-NJ requested corrective action and a response from Asbury Park (PDF) by January 28, 2019.