Issue Presented: What does the word “accost” mean?

Holding: If you’re poor and homeless, it means nothing more than to “address” or “speak first.”

CAL Observes: Marc Mitchell stood in Times Square next to two milk crates and asked passing pedestrians to “Help the Homeless.” Upon learning that most of the donation proceeds went to one homeless person in particular (Marc Mitchell), an officer arrested him under New York’s “fraudulent accosting” statute, which makes it a misdemeanor to “accost[] a person in a public place with intent to defraud [that person] of money or other property by means of a trick, swindle or confidence game.”

Judge Garcia, writing for the majority, did his best Clarence Thomas impression by citing to a bunch of old dictionaries to define “accost” in the weirdest, most unnatural way possible. “To accost,” the majority held, means “to address” or “to speak to first.” That archaic definition—not the normal definition of “accost” that would involve some degree of aggressive or persistent confrontation (also found in old dictionaries)—covered Mitchell’s conduct because he “spoke first to pedestrians by calling out to them” and “block[ed] the sidewalk” with his two milk crates, throwing into chaos the otherwise orderly, efficient flow of pedestrian traffic in Times Square at theater hour.

An out-of-touch Court of Appeals has, for no good reason, made it easier for police to criminalize homelessness and poverty. Has Judge Garcia been to Times Square? It is always full of people doing exactly what Mitchell was doing, including, as Judge Rivera noted in her dissent, “the Salvation Army Officer who positions a bucket in front of a store and rings a bell asking for donations to help the needy, the peace activist who stands in front of an entrance to Central Park who calls for an end to war and for civil disobedience, or the person who stands in the middle of the block holding a sign asking for food because they are hungry.” This is to say nothing of the bright billboards and flashy advertisements that “accost” us (and often seek to “trick” us) every day, everywhere in the City, and especially in Times Square. This decision, in addition to being insensitive to an already vulnerable and marginalized community, takes an approach that, as Judge Rivera noted, is “perilously close to criminalizing speech protected by the First Amendment.”