Tucked away from the heat of a reignited public debate on “squeegee kids,” city attorneys are quietly meeting in backrooms to grapple with a decades-old question: Is Baltimore’s anti-panhandling code enforceable to begin with?
Article 19, Subtitle 47 of the city code, which prohibits certain types of soliciting, dates back decades and is a semi-frequent source of controversy, having faced numerous challenges over the years.
One section of the code specifies squeegeeing as a prohibited activity, stating that it is illegal in Baltimore to solicit “from any operator or occupant of a motor vehicle that is in traffic or on a public street, whether in exchange for cleaning the vehicle’s windows or not.”
But with demands to step-up enforcement of the code resurfacing in the wake of the shooting death of Hampden resident Timothy Reynolds, Baltimore Police Commissioner Michael Harrison has said he’s still unclear how to instruct officers to cite that section of the code in a way that doesn’t violate the U.S. Constitution, or put the department at odds with its consent decree with the U.S. Department of Justice.
“We have to figure out a way, with guidance from the attorneys that work for the city to [enforce the soliciting code] in a way that is not unconstitutional and does not erode trust,” Harrison said in an interview with WYPR on Friday afternoon.
Harrison was careful to say that the department’s consent decree doesn’t constrain its officers from enforcing the code and that the discussions with the DOJ over squeegeeing took place in a “regularly scheduled meeting.”
“We took the opportunity to have the conversation about squeegeeing with the judge [overseeing the consent decree] and the Department of Justice,” Harrison told WYPR. “We’re just making sure that whatever we do doesn’t violate the consent decree.”
But he said they are waiting on further input, which he will then pass to his rank-and-file officers. The Baltimore City Law Office did not respond to requests for comment on the legality of the code.
Some former prosecutors and police officers, meanwhile, have criticized the city and police department leadership for their hesitation to enforce the code.
“I do have some issue with: You have a law on the books, and there are some serious safety concerns, but the police are choosing not to enforce it, period,” said Jeremy Eldridge, a former Baltimore prosecutor who now practices as a criminal defense attorney.
Officers could either cite squeegee workers into compliance, or start arresting them, even if they are released at Central Booking, Eldridge suggested. He added that even if the panhandling code isn’t enforced, police could use other laws, such as jaywalking statutes, to curb the activity.
“You can’t just allow this lawlessness to be pervasive, because we are hearing too many instances of assault, harassment, or it just being a safety issue for drivers,” Eldridge said.
But Mike Meyerson, a First Amendment attorney and law professor at the University of Baltimore School of Law, said that the city will have to figure out a way to handle enforcement of the anti-soliciting code itself. Using other laws to accomplish the same goal would be a dicey play, he said, because it would be viewed as merely a pretext to stop a protected activity.
“Unless you’re going to arrest everyone who’s jaywalking, now you’ve got your equal protection violation,” Meyerson said.
Meyerson added that the 2015 U.S. Supreme Court decision Reed vs. the Town of Gilbert [Arizona] clearly established that many soliciting laws are unconstitutional because panhandling is protected First Amendment activity. It’s a precedent that Harrison has alluded to multiple times in his comments from the last week, though he has not referred to the ruling by name.
The Reed ruling, plus a long history of legal challenges to the Baltimore anti-panhandling code dating back to 1993, means that the city is right to be cautious when reviewing how to enforce it, Meyerson said.
“If you understand that the Supreme Court has ruled that soliciting is a form of free speech, then any form of regulation of solicitation is a constitutional concern,” Meyerson said. “Not a violation, but a concern, and that should be dealt with carefully.”
The crux of the Reed ruling, Meyerson said, hinges on the fact that soliciting is speech, and applies only to such activities that take place in a “public forum.” The busy intersections where most squeegeeing takes place would undoubtedly qualify as public forums, he added, but the question becomes whether sitting in a motor vehicle is different than standing on the street.
“I just think that’s fundamentally different,” Meyerson said. “Unlike me on a street when I am walking, when I have a car in front of me and in back of me and I cannot move, I do not want anyone near me. That just seems reasonable, and different from any other kind of soliciting laws that have been struck down.”
If it’s not being enforced, why is the code still on the books?
For the last several years, Baltimore residents have observed, in social media posts and even legal papers, that the panhandling code has gone largely unenforced, leaving some to question why it’s still there in the first place.
David Jaros, a criminal law professor at the University of Baltimore, said there is a long history of City Council members attempting to pass laws that are politically useful without regard for whether the actual language of the law is viable.
“It’s not at all surprising that we would have laws on the books that either are ineffective or even unconstitutional, and there’s no political interest in cleaning them up or getting rid of them,“ Jaros said. “No one wants to look like they are supporting this behavior that the public may find annoying, even it’s constitutionally protected.”
The panhandling code would just be one among a long list of offenses that are no longer charged by police officers in Baltimore, joining prostitution, drug possession, trespassing, and urinating in public, to name a few. The decriminalization of some activities that are technically still illegal has been a running theme since Baltimore State’s Attorney Marilyn Mosby took over in 2015 and declared she would no longer charge those crimes. The police department then fell in line.
Responding to a question about whether she supported enforcement of the anti-panhandling statute on Wednesday, Mosby answered with a resounding no. She told The Baltimore Banner that while her office would still charge serious crimes that resulted out of squeegeeing, such as assaults or murders, she disagreed with any type of criminalization of the act itself, even if it stopped short of charging youth with citations, such as confiscating squeegees and spray bottles. That would only fuel tension between young people and the police, Mosby said.
“You’re going to snatch the spray bottle and create some sort of confrontation with 12-year-old and 13-year-old children and police? I don’t think that is the solution,” Mosby said. “We have got to break down these barriers of distrust … We have far too long relied on police to respond to every ill of society.”
Michael S. Scott, an Arizona State University professor and policing expert who has written a report on panhandling for the DOJ, said that, despite the Supreme Court decision, it’s “reasonably well settled” that police can, in fact, enforce anti-panhandling laws in certain instances. He added that the court decided that even the First Amendment is subject to “time and place restrictions.”
“That is really the legal avenue by which municipalities can prohibit panhandling in certain places at certain times, and certainly in doing so in an aggressive manner,” Scott said.
For Scott, the problem with squeegeeing is that it can be intimidating for people in their cars, because what could be intended as a squeegeeing can also look like the beginning of a carjacking.
“Some people might perceive this as inherently benign behavior. There’s no threat involved, why should anybody be afraid of a person with a squeegee?” Scott said. “That kind of misses the point. It’s not the squeegee itself. It’s not even the individual themselves. It’s the uncertainty that comes with what the person is really asking for, and what they might do.”