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January 19. 2014 7:02PM

State Civil Liberties Union threatens suit over panhandling law in Rochester

ROCHESTER — The New Hampshire Civil Liberties Union is threatening to sue the city if it does not rescind its new panhandling ordinance.

In a letter sent last month to the city attorney, NHCLU staff attornry Gilles Bissonnette said the ordinance is unconstitutional because it “proscribes a wide range of peaceful conduct” in the entire downtown business district. That abridges the right to free speech, he argued.

The NHCLU lawyer contends the ordinance is “plainly targeted, without any valid basis, at the poor and homeless.” And that, he said, violates the equal protection clause of the 14th Amendment.

Last week, the city council met in non-public session with city attorney Danford Wensley to discuss the letter. City manager Dan Fitzpatrick said he thought it would be “more appropriate” to discuss it privately “under attorney-client privilege.”

While Fitzpatrick said the council did reach some decisions during the private session, he referred the matter to Wensley, who could not be reached for comment.

Police Chief Mike Allen said while the winter weather keeps most people inside, the crackdown on “aggressive” panhandling has been working since it went into effect in July. While he did not participate in the council’s conversation, Allen said police provided the NHCLU with log entries and reports about panhandling dating back to three years before the ordinance went into effect. He said police also provided a second set of reports since it took effect.

While a few of the log entries cite reports of “aggressive panhandling” and people violating “no trespassing orders” since July, Allen said he is not aware of any situations when people have been combative with police or other residents.

Police have only issued warnings to most panhandlers and informed them of the new ordinance, but a few citations were issued since July, according to police records.

Bissonnette said he has been in touch with the city attorney since Tuesday’s meeting. “And we continue to have cooperative discussions about what the next steps may be with respect to the ordinance,” he said.

He said he expects there will be “further consideration” of the issue at the next city council meeting on Feb. 2.

Bissonnette said one problem with the ordinance is that it targets a particular form of peaceful speech in public areas: solicitations for the purpose of “immediately obtaining money or any other object of value.”

“What’s exceptionally difficult about this particular ordinance is that it’s just carving out peaceful panhandling soliciting activity while allowing other forms of speech and solicitation in those same areas,” he said.

That’s what lawyers call a “content-based” restriction on speech, he said. And that is something that is “scrutinized at a much higher level by the courts.”

There has to be a really good reason to restrict such speech and it can’t just be that someone is bothering someone else, Bissonnette said. “When you’re trying to carve out certain types of peaceful speech as being prohibited, while allowing other forms of peaceful speech to be lawful, that is going to create grave constitutional concerns, and that’s really what we’re dealing with here,” he said.

While his Dec. 11 letter set a Jan. 3 deadline for the city to respond, Bissonnette said NHCLU is content for now to continue its “constructive dialogue” with Wensley.

Staff reporter Shawne K. Wickham contributed to this report.


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