Eric Hoffstead, a homeless man, asked a New Rochelle police officer for a dollar, whereupon he was arrested for violating a New York state statute forbidding all begging, including peaceful, non-threatening begging. A search incident to arrest revealed a small quantity of a controlled substance. Hoffstead was charged with begging and drug possession. Through his lawyer, he successfully urged the trial court to dismiss the begging charge on the ground that the begging law was unconstitutional under the First Amendment as made applicable to the states via the Fourteenth, as well as under the New York State Constitution, and that the pipe was inadmissible as the fruit of an invalid arrest.
That decision got some play in the news, in no small part because the D.A. argued that the trial judge was wrong to rely on the 1993 decision of the U.S. Court of Appeals for the Second Circuit in the Loper case, which had found the begging law under which Hoffstead was charged to be unconstitutional. I found out about the case when a NY Times reporter asked me whether that was right. I said it was--decisions of the federal appeals courts and the federal trial courts do not bind the state courts in which they sit, at least not as a matter of precedent--but that I thought the trial judge nonetheless got it right because the law was unconstitutional. In other words, Loper wasn't binding precedent, but it was correct legal analysis: The Supreme Court precedents protecting charitable solicitation as free speech should be understood to protect peaceful begging.
Nevertheless, I realized that there was enough wiggle room in the doctrine for the New York courts to say that begging is not protected speech. I wrote an Op-Ed for the Times in which I said that it would be quite messy if New York's begging prohibition were unenforceable in federal court but enforceable in state court. I argued that the cleanest way to avoid such chaos would be for the state legislature to repeal the law.
One person who read my Op-Ed was Carl Birman, the attorney who represented Hoffstead. He called, we talked, one thing led to another, and for over three years, I provided him with assistance on the appeal, aided in turn by a couple of my very able former students (Neal Hannan and Ryan Fahey) now in private practice. The case was delayed considerably by personnel changes on the appellate court but when we finally won in June, I fully expected that our next stop would be the New York Court of Appeals. I wasn't exactly sure how we would argue to that court that it should deny review in a case invalidating a state law, but I viewed it as a win-win proposition: If the court denied review, that would be great for our client; if the court granted review, we had an excellent set of arguments for a constitutional right to beg that would apply throughout the state and potentially beyond.
But then something unexpected happened. After the D.A. announced that he was seeking review in the NY Court of Appeals, but before our response was due, the New York legislature repealed the begging prohibition along with a number of other provisions of the state's vagrancy law. To my amazement, D.A.'s were among the proponents of repeal, even though police around the state had been using these laws to arrest the homeless. In the interim, and at Carl's urging, I had written a white paper for the state legislature urging repeal (this time aided by another top student, now very able attorney, Silvia Babikian). I have been unable to ascertain whether the white paper had any effect.
Once the begging law had been repealed, there was little reason for the New York Court of Appeals to hear Hoffstead's case--or so we argued in our opposition to the review petition. Yet it took months for the Court finally to deny review, and with each passing day I began to worry that the Court might decide to take the case after all. I half-hoped it would, looking forward to a chance to make what I figured would be good law, even as I knew that Hoffstead's best interests would be served by the Court's accepting our arguments against review. (Here we see the familiar conflict between the cause of a "cause lawyer" and the interests of his client. Ethically bound to pursue the client's interest, we did just that, even as we were aware that the broader cause might be better served by a statewide ruling).
Last week's decision to deny review is mostly an anti-climax but the timing is nonetheless appropriate, coming days before a brutal cold snap brought sub-zero temperatures to much of the Northeast. For readers of this blog, such weather is a nuisance and perhaps a conversation starter. For the likes of Eric Hoffstead, it is a threat to survival. I don't kid myself that begging is any kind of an answer to homelessness. But the criminalization of peaceful begging is a worse answer. As the Second Circuit said in Loper:
Begging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation. Even without particularized speech, however, the presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance.New York's begging prohibition was mostly about suppressing that message of need and was thus rightly deemed a violation of the First Amendment. In these times of strained state and local government finances and manufactured federal austerity, that need may well go unmet, but at least the message has a chance of being heard.