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Court strikes down Manchester panhandling ordinance

By SHAWNE K. WICKHAM
New Hampshire Sunday News

September 08. 2017 11:51AM
DAVID LANE/UNION LEADER FILE A panhandler holds a sign soliciting donations from vehicles stopped at the traffic light at Bridge and Beech streets in Manchester. 

A federal judge in Concord has struck down Manchester’s panhandling ordinance — and police department policies of enforcing it — as unconstitutional.

The ACLU of New Hampshire and New Hampshire Legal Assistance filed a civil lawsuit in U.S. District Court last year against the city on behalf of a female veteran who was arrested for panhandling here in 2015.

The lawsuit challenged a 2015 ordinance enacted by the Board of Mayor and Aldermen in response to citizen complaints about “aggressive” panhandlers. Modeled after an ordinance previously adopted in Concord, it states: “No person shall knowingly distribute any item to, receive any item from, or exchange any item with the occupant of any motor vehicle when the vehicle is located in the roadway.”

On June 3, 2015, a Manchester police officer cited Theresa M. Petrello, a veteran of both the Army and Navy, for disorderly conduct after several drivers stopped to hand her money while she was standing with a sign reading “veteran” on Maple Street. She never stepped into the street, according to court documents, but one vehicle had to wait for another while the driver handed her a donation.

The charge against Petrello was later dropped and she stopped panhandling in the city, according to the documents.

But Petrello sued Manchester both for the ordinance and for the police policy of cracking down on panhandlers using the state disorderly conduct law.

In a 64-page order, Judge Landya McCafferty permanently barred the city from enforcing its ordinance — and from enforcing the disorderly conduct law against “passive panhandlers ... who do not step into the road or otherwise physically obstruct traffic.”

McCafferty wrote that the ordinance “burdens substantially more speech than is necessary to further the City’s legitimate safety interests.” She noted it would apply not only to panhandlers, but to individuals handing out leaflets.

A panhandler accepts cash from a passing motorist near the Interstate 93 on ramp on Candia Road in Manchester on Friday. (DAVID LANE/UNION LEADER)

The judge said the citywide ordinance was “geographically overinclusive.” If Manchester had targeted specific locations with a “demonstrated” record of safety problems related to roadside exchanges, she said — such as the I-293 off-ramp near the Mall of New Hampshire — it likely would survive First Amendment scrutiny.

But she also said the city ordinance is “underinclusive,” in that “it penalizes only the pedestrian, not the motorist, involved in a roadside exchange.”

Elliott Berry from New Hampshire Legal Assistance applauded the judge’s “very thoughtful and thorough” decision. “What I’m happiest about is that it removes one more tool that municipalities use to make life even more difficult for poor and homeless people,” he said.

Asked if the city plans to appeal, Emily Rice, interim city solicitor, said, “We’re going to take a very, very careful look at the judge’s lengthy and complex decision and then make a determination once we’ve had the opportunity to fully review and analyze it.”

The 1st Circuit Court of Appeals would hear an appeal of the case. But that same court in 2015 ruled unconstitutional a Portland, Maine, ordinance designed to discourage panhandling in that city.

“No person shall stand, sit, stay, drive or park on a median strip ... except that pedestrians may use median strips only in the course of crossing from one side of the street to the other,” it read.

Three individuals filed suit, claiming the ordinance restricted their speech. A federal court ruled in their favor, and the city of Portland appealed, but the 1st Circuit Court of Appeals ruled for the plaintiffs on Sept. 11, 2015.

“The City may have been motivated by a perfectly understandable desire to protect the public from the dangers posed by people lingering in median strips,” the court wrote. “But the City chose too sweeping a means of doing so, given the First Amendment interest in protecting the public’s right to freedom of speech.”

In her order, McCafferty said Manchester has other measures available to promote public safety and prevent traffic obstructions.

“For instance, the City could limit enforcement to panhandlers who step into the road and obstruct traffic,” she wrote. “Or, the City could enforce the statute against motorists who stop in the road at a green light, thereby causing a traffic obstruction.”

The ruling also has implications for Concord, Somersworth and Rochester, which all have similar ordinances.

The ruling was welcome news to a man named George who frequently stands on Candia Road with a sign reading, “Homeless. Need work. Please help. Thank you.” (He refused to give his last name for this article.)

He said the issue isn’t about panhandling but about freedom and people’s rights. “I call it asking for help, but back in the day it used to be called begging when Jesus used to walk the earth,” he said. “You try to stop people from helping other people, what kind of society are you going to have?”

swickham@unionleader.com


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