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Mintz Amicus Brief Filed on Behalf of National Homelessness Law Center Helps Strike Down Massachusetts Anti-Panhandling Law

On December 15, the Massachusetts Supreme Judicial Court issued an important decision effectively striking down a state statute, G.L. c. 85, § 17A,  that criminalized poverty and persons experiencing homelessness by penalizing people for “panhandling,” or asking for money and other valuable donations from vehicles on public roads.

The lawsuit, Massachusetts Coalition for the Homeless & others vs. City of Fall River & others, was filed in March 2019 by the American Civil Liberties Union of Massachusetts and McCarter & English, LLP on behalf of the Massachusetts Coalition for the Homeless and two Fall River residents currently experiencing homelessness, challenging the city’s use of the state statute. According to the lawsuit, Fall River aggressively enforced the unconstitutional law, filing more than 150 criminal complaints against some of the city’s most vulnerable residents in a roughly one-year period.

Mintz filed an amicus brief in the case on behalf of the National Homelessness Law Center, a Washington, D.C.-based nonprofit dedicated to ending and preventing homelessness, highlighting the increasing criminalization of homelessness and poverty in the United States with G.L. c. 85, § 17A and similar statutes. As the brief noted, such laws criminally punish those experiencing poverty and homelessness rather than addressing the root causes of homelessness, including lack of affordable housing and systemic racism.

In the 23-page decision, Associate Justice Elspeth B. Cypher held that G.L. c. 85, § 17A is unconstitutional on its face under the First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of Rights. The decision also acknowledged the amicus brief’s argument that the statute is “a content-based regulation of protected speech in a public forum that cannot withstand strict scrutiny.”

“This is a timely decision in light of heightened income and housing insecurity due to the COVID-19 pandemic,” said Mintz Member and Chair of the firm’s Pro Bono Committee Susan Finegan. “Now, communities throughout the Commonwealth can focus on solving homelessness rather than merely its symptoms.”

“We were honored to partner with the Law Center to support challenges of panhandling laws like the one found unconstitutional here,” said Mintz Associate Courtney Herndon, who was the lead author of the amicus brief. “These statutes, found in states throughout the United States, effectively criminalize poverty and homelessness.”

The Mintz pro bono team that drafted and filed an amicus brief in the case included Ms. Finegan and Ms. Herndon, along with Co-chairs of the firm’s Appellate Practice Group Andrew Nathanson (Special Counsel) and Emily Kanstroom Musgrave (Member), and Associate Nana Liu.