For Media Inquiries Contact: Elliott Berry, New Hampshire Legal Assistance; eberry@nhla.org; 603-668-2900 ext. 2908
CONCORD -- On Thursday, in a 65-page decision, the New Hampshire District Court struck down the City of Manchester’s anti-panhandling ordinance and police practices because they violated the First Amendment.
This lawsuit was brought on behalf of Theresa M. Petrello, an Army and Navy veteran who has panhandled to make ends meet. On June 3, 2015, the Manchester Police Department cited her for disorderly conduct after she, without stepping in a roadway, engaged in peaceful panhandling speech directed at motorists from a public place. Ms. Petrello was represented by Gilles Bissonnette, Legal Director of the ACLU of New Hampshire (ACLU-NH), and Elliott Berry of New Hampshire Legal Assistance (NHLA).
This lawsuit challenged Manchester’s anti-panhandling ordinance, which was enacted on October 6, 2015. This ordinance—which exists in Section 70:32 of Manchester’s City Ordinances and is entitled “Passing of Items to or from the Occupant of a Motor Vehicle”—bans a person from peacefully receiving a charitable contribution from a person in a motor vehicle, even if the recipient is in a public place and is not in a roadway. The Manchester Police issued 7 summonses under this ordinance from March to December 2016.
The Court concluded that the ordinance, on its face, violated the First Amendment because it “burdens substantially more speech than is necessary to further the City’s legitimate safety interests.” As the Court explained, the ordinance was not tailored to roadway safety because: (i) it “bans roadside exchanges that do not obstruct traffic or pose a safety risk”; (ii) it “is geographically over inclusive because it applies citywide”; (iii) it “is under inclusive because it penalizes only pedestrians, not motorists”; and (iv) “the City has less speech-restrictive means available to address its concerns,” like enforcing traffic laws. Thus, the Court concluded, the ordinance unconstitutionally burdened “the protected speech of pedestrians who are not standing in the road and thus not physically obstructing traffic.” The Court noted that Manchester cannot sacrifice the First Amendment for the sake of efficiency.
Similar ordinances have been enacted in Concord, Somersworth, and Rochester. Like the Manchester ordinance, these ordinances are also now unconstitutional, and each of these cities have been asked to cease enforcement of their respective ordinances.
The lawsuit also separately challenged the constitutionality of the Manchester Police Department’s practice of detaining, dispersing, and charging peaceful panhandlers for allegedly “obstructing vehicular traffic on public streets” under New Hampshire’s disorderly conduct statute, even when the panhandlers are in a public place and do not step in the roadway. Between March 2015 and March 2016, at least 10 different Manchester police officers issued a total of 19 summonses against panhandlers who, like Ms. Petrello, did not step in the roadway and were in public places.
As the Court held, this practice violated the First Amendment because it “burdens substantially more speech than necessary to further” the legitimate interest of maintaining traffic safety. The Court explained that this policy operated “as a de facto ban on panhandling” by those who do not step in the road “and thereby chills substantially more speech than necessary to serve the City’s interests.” The Court added that the City has available measures to address public safety other than suppressing speech, which included (i) limiting enforcement of disorderly conduct statute to those who step in the roadway, and (ii) enforcing the statute against motorists who stop in the road at a green light to give charity to a panhandler.
“Today’s decision is a victory for free speech, as well as judicial recognition that cities and towns need to stop criminalizing poverty in violation of the First Amendment,” said Gilles Bissonnette, Legal Director for the ACLU-NH. “In Manchester, panhandlers were and are peacefully soliciting motorists from public places without stepping in the roadway. They were committing no crime. They were engaging in protected speech. Yet, as the Court explained, Manchester was unconstitutionally applying New Hampshire’s disorderly conduct statute and using an anti-panhandling ordinance to detain and prosecute these peaceful individuals.”
“Manchester’s policies were targeting panhandlers who were peaceful, not panhandlers who were alleged to have acted aggressively or to have stepped in the roadway,” said Elliott Berry of NHLA. “These individuals were seeking charity. Instead of charity, Manchester charged them and sent them to court. We are thankful that, earlier this year, Manchester apparently voluntarily stopped these practices, and now a Court has ordered them to do so permanently.”