Petrello v. City of Manchester, et al.
Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Theresa M. Petrello
v. Civil No. 16-cv-008-LM Opinion No. 2017 DNH 173 City of Manchester, et al.
O R D E R
Theresa M. Petrello brings suit against the City of
Manchester, New Hampshire (“City”) alleging violations of her
First, Fourth, and Fourteenth Amendment rights as a result
of actions taken by the City while she was panhandling.
Specifically, Petrello challenges the decision of Manchester
Police Officer Ryan J. Brandreth to charge her with disorderly
conduct—even though she solicited donations passively, without
ever stepping into the road. Petrello also challenges a City
ordinance making it unlawful to distribute items to or receive
items from the occupant of a car located on a public road. The
court previously granted Officer Brandreth’s motion for judgment
on the pleadings on qualified-immunity grounds (doc. no. 26),
leaving the City as the only defendant remaining in the case.
Petrello and the City have filed cross motions for summary
judgment. On May 9, 2017, the court heard oral argument on the
motions. STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In reviewing the record, the court construes all
facts and reasonable inferences in the light most favorable to
the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013). On cross motions for summary judgment, the
standard of review is applied to each motion separately. See
Fadili v. Deutsche Bank Nat’l Tr. Co., 772 F.3d 951, 953 (1st
Cir. 2014).
BACKGROUND
I. Efforts to Curb Panhandling in Manchester
In recent years, the City and the Manchester Police
Department (“MPD”) have stepped up their enforcement efforts to
curtail panhandling in the City. In January 2015, then
Manchester Police Chief David Mara requested a meeting with the
City Solicitor’s Office to discuss a “new plan of action”
related to panhandlers. See doc. no. 28-8 at 3 of 3. That same
month, Captain James Soucy of the Community Policing Division
issued a report stating that a “growing number of complaints
from area businesses and citizens alike generated a push to deal
with the ever growing number of Panhandlers in the city.” Doc.
2 no. 28-2 at 3 of 6. Captain Soucy’s report stated that the
Community Policing Division was “tasked with coming up with a
solution to this problem.” Id. Captain Soucy placed two
officers in charge of communicating with the City Solicitor’s
Office so there would be greater “clarity” in terms of the MPD’s
approach to panhandling. Doc. no. 28-1 at 5 of 24.
According to Captain Soucy, he had been studying the issue
of panhandling from the moment he took command of the Community
Policing Division. See id. at 4 of 24. He discussed his
initiatives during “regular meetings with the chief [of police],
the assistant chief, command meetings.” Id. Indeed, according
to Captain Soucy, the issue of how to deal with panhandlers had
been discussed “ad nauseam” by officers at the MPD since Captain
Soucy joined the force in 1992. Id. at 12 of 24.
In early 2015, Captain Soucy asked Lieutenant Stephen
Reardon, who worked in the MPD’s Legal Division, to research
laws that officers could use to combat unlawful conduct
associated with panhandling. The MPD was concerned with
reducing two types of panhandlers: those who simply held a sign
soliciting a donation (referred to as “passive”) and those who
walked into the road or took other action to solicit a donation
(referred to as “aggressive”). See doc. no. 28-3 at 5 of 30;
doc. no. 28-1 at 4 of 24. Lieutenant Reardon looked at the
state motor vehicle and criminal codes to determine the most
3 appropriate statutes to address panhandlers “entering the
roadway, stopping traffic, obstructing traffic, doing things of
that nature.” Doc. no. 28-3 at 7 of 30. And, he consulted the
City Solicitor’s Office as part of his research.
Lieutenant Reardon trained his focus on the Disorderly
Conduct statute, RSA 644:2, which, in relevant part, prohibits
conduct that “[o]bstructs vehicular or pedestrian traffic on any
public street or sidewalk . . . .” RSA 644:2, II(c). As a
result of Lieutenant Reardon’s research, the MPD sent two emails
to MPD officers, one on February 5 and the other on July 2,
2015, advising officers to use RSA 644:2, II(c) as a charging
option against panhandlers. Captain Soucy stated that the MPD
wanted “to make an arrest that had some teeth to it.” Doc. no.
28-1 at 9 of 24.
The first email, sent on February 5, 2015, by Lieutenant
Reardon stated:
In an effort to address the numerous issues resulting from those who use the roadways for unlawful purposes— to include Panhandling—please consider utilizing the DOC as your first charging option outlined below.
644:2 Disorderly Conduct. — A person is guilty of disorderly conduct if: I. He knowingly or purposely creates a condition which is hazardous to himself or another in a public place by any action which serves no legitimate purpose; or II. He or she: (c) Obstructs vehicular or pedestrian traffic on any public street or sidewalk or the entrance to any public building . . . .
4 Doc. no. 28-6 at 2 of 3 (emphases in original) (hereinafter,
“February 5 email”). According to Lieutenant Reardon, his job
description included issuing “policy directives” to the MPD
officers. Doc. no. 28-3 at 3 of 30. Captain Soucy confirmed
that Lieutenant Reardon had authority to send this email to the
officers without first obtaining Captain Soucy’s approval. Doc.
no. 28-1 at 9 of 24. Although Lieutenant Reardon had authority
to send the February 5 email, the record reveals that Captain
Soucy assisted Lieutenant Reardon in drafting it.
Although the February 5 email did not contain an explicit
directive to charge passive panhandlers, Captain Soucy later
testified in his deposition that this email was drafted after
discussions with the City Solicitor’s Office to address concerns
over passive panhandlers whom Captain Soucy described as
follows:
[P]anhandlers [who] didn’t step into the roadway and . . . stayed on the curbing and/or the grass or whatnot, and didn’t impede the flow of traffic by stepping in the roadway and stopping traffic physically with their person, but their actions were causing vehicles or the flow of traffic to be impeded.
Id. at 10 of 24. Captain Soucy confirmed during his deposition
that the Disorderly Conduct statute was considered a “first
charging option” because it could be applied to passive
panhandlers, not just those who stepped into the road. Id. at
13 of 24.
5 Less than five months after the February 5 email, on July
2, 2015, Captain Soucy sent an email to all MPD officers
containing an express directive regarding charging passive
panhandlers with obstructing traffic under RSA 644:2, II(c).
The email had the subject line “Panhandlers” and advised
officers:
Simply put, if a Panhandler does any of the following — you may use these options:
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Theresa M. Petrello
v. Civil No. 16-cv-008-LM Opinion No. 2017 DNH 173 City of Manchester, et al.
O R D E R
Theresa M. Petrello brings suit against the City of
Manchester, New Hampshire (“City”) alleging violations of her
First, Fourth, and Fourteenth Amendment rights as a result
of actions taken by the City while she was panhandling.
Specifically, Petrello challenges the decision of Manchester
Police Officer Ryan J. Brandreth to charge her with disorderly
conduct—even though she solicited donations passively, without
ever stepping into the road. Petrello also challenges a City
ordinance making it unlawful to distribute items to or receive
items from the occupant of a car located on a public road. The
court previously granted Officer Brandreth’s motion for judgment
on the pleadings on qualified-immunity grounds (doc. no. 26),
leaving the City as the only defendant remaining in the case.
Petrello and the City have filed cross motions for summary
judgment. On May 9, 2017, the court heard oral argument on the
motions. STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In reviewing the record, the court construes all
facts and reasonable inferences in the light most favorable to
the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013). On cross motions for summary judgment, the
standard of review is applied to each motion separately. See
Fadili v. Deutsche Bank Nat’l Tr. Co., 772 F.3d 951, 953 (1st
Cir. 2014).
BACKGROUND
I. Efforts to Curb Panhandling in Manchester
In recent years, the City and the Manchester Police
Department (“MPD”) have stepped up their enforcement efforts to
curtail panhandling in the City. In January 2015, then
Manchester Police Chief David Mara requested a meeting with the
City Solicitor’s Office to discuss a “new plan of action”
related to panhandlers. See doc. no. 28-8 at 3 of 3. That same
month, Captain James Soucy of the Community Policing Division
issued a report stating that a “growing number of complaints
from area businesses and citizens alike generated a push to deal
with the ever growing number of Panhandlers in the city.” Doc.
2 no. 28-2 at 3 of 6. Captain Soucy’s report stated that the
Community Policing Division was “tasked with coming up with a
solution to this problem.” Id. Captain Soucy placed two
officers in charge of communicating with the City Solicitor’s
Office so there would be greater “clarity” in terms of the MPD’s
approach to panhandling. Doc. no. 28-1 at 5 of 24.
According to Captain Soucy, he had been studying the issue
of panhandling from the moment he took command of the Community
Policing Division. See id. at 4 of 24. He discussed his
initiatives during “regular meetings with the chief [of police],
the assistant chief, command meetings.” Id. Indeed, according
to Captain Soucy, the issue of how to deal with panhandlers had
been discussed “ad nauseam” by officers at the MPD since Captain
Soucy joined the force in 1992. Id. at 12 of 24.
In early 2015, Captain Soucy asked Lieutenant Stephen
Reardon, who worked in the MPD’s Legal Division, to research
laws that officers could use to combat unlawful conduct
associated with panhandling. The MPD was concerned with
reducing two types of panhandlers: those who simply held a sign
soliciting a donation (referred to as “passive”) and those who
walked into the road or took other action to solicit a donation
(referred to as “aggressive”). See doc. no. 28-3 at 5 of 30;
doc. no. 28-1 at 4 of 24. Lieutenant Reardon looked at the
state motor vehicle and criminal codes to determine the most
3 appropriate statutes to address panhandlers “entering the
roadway, stopping traffic, obstructing traffic, doing things of
that nature.” Doc. no. 28-3 at 7 of 30. And, he consulted the
City Solicitor’s Office as part of his research.
Lieutenant Reardon trained his focus on the Disorderly
Conduct statute, RSA 644:2, which, in relevant part, prohibits
conduct that “[o]bstructs vehicular or pedestrian traffic on any
public street or sidewalk . . . .” RSA 644:2, II(c). As a
result of Lieutenant Reardon’s research, the MPD sent two emails
to MPD officers, one on February 5 and the other on July 2,
2015, advising officers to use RSA 644:2, II(c) as a charging
option against panhandlers. Captain Soucy stated that the MPD
wanted “to make an arrest that had some teeth to it.” Doc. no.
28-1 at 9 of 24.
The first email, sent on February 5, 2015, by Lieutenant
Reardon stated:
In an effort to address the numerous issues resulting from those who use the roadways for unlawful purposes— to include Panhandling—please consider utilizing the DOC as your first charging option outlined below.
644:2 Disorderly Conduct. — A person is guilty of disorderly conduct if: I. He knowingly or purposely creates a condition which is hazardous to himself or another in a public place by any action which serves no legitimate purpose; or II. He or she: (c) Obstructs vehicular or pedestrian traffic on any public street or sidewalk or the entrance to any public building . . . .
4 Doc. no. 28-6 at 2 of 3 (emphases in original) (hereinafter,
“February 5 email”). According to Lieutenant Reardon, his job
description included issuing “policy directives” to the MPD
officers. Doc. no. 28-3 at 3 of 30. Captain Soucy confirmed
that Lieutenant Reardon had authority to send this email to the
officers without first obtaining Captain Soucy’s approval. Doc.
no. 28-1 at 9 of 24. Although Lieutenant Reardon had authority
to send the February 5 email, the record reveals that Captain
Soucy assisted Lieutenant Reardon in drafting it.
Although the February 5 email did not contain an explicit
directive to charge passive panhandlers, Captain Soucy later
testified in his deposition that this email was drafted after
discussions with the City Solicitor’s Office to address concerns
over passive panhandlers whom Captain Soucy described as
follows:
[P]anhandlers [who] didn’t step into the roadway and . . . stayed on the curbing and/or the grass or whatnot, and didn’t impede the flow of traffic by stepping in the roadway and stopping traffic physically with their person, but their actions were causing vehicles or the flow of traffic to be impeded.
Id. at 10 of 24. Captain Soucy confirmed during his deposition
that the Disorderly Conduct statute was considered a “first
charging option” because it could be applied to passive
panhandlers, not just those who stepped into the road. Id. at
13 of 24.
5 Less than five months after the February 5 email, on July
2, 2015, Captain Soucy sent an email to all MPD officers
containing an express directive regarding charging passive
panhandlers with obstructing traffic under RSA 644:2, II(c).
The email had the subject line “Panhandlers” and advised
officers:
Simply put, if a Panhandler does any of the following — you may use these options:
Action: Panhandler causes traffic to slow or become impeded when accepting donations — even if they’re not standing or step into a public way
Officer’s Charge with DOC 644:2(c) Obstructing Option: vehicular traffic on any public street
See doc. no. 28-9 at 37 of 39 (hereinafter “July 2 email”).
According to Captain Soucy, he intended the July 2 email to
“provide the officers with a simple reading or simple
interpretation of what they could and couldn’t do based on what
the city solicitors had advised us.” Doc. no. 28-1 at 15 of 24.
Although he had no specific recollection of talking to the
Chiefs of Police1 or the City Solicitor’s Office about the July 2
email, Captain Soucy’s memory was clear that the July 2 email
was consistent with the “city solicitor’s view.” Id. And
1 Following the retirement of Chief Mara in the summer of 2015, Enoch F. Willard became Chief of Police in Manchester.
6 Captain Soucy admits that he conveyed that “view” to the MPD
officers. Id.
MPD Sergeant Matthew Larochelle, a former shift supervisor
who led daily roll-call meetings with patrol officers, testified
at his deposition that the February 5 and July 2 emails were
“directive[s] on how to legally handle” issues related to
panhandling. Doc. no. 28-29 at 13 of 19. Sergeant Larochelle
explained that MPD shift supervisors discussed such e-mail
directives with the officers during daily roll-call meetings.
See id. at 14 of 19. Captain Soucy also testified that
panhandling was “frequently” discussed with the officers during
roll-call meetings. See doc. no. 28-1 at 12 & 15 of 24.
Between the February 5 and July 2 emails, the MPD issued
six summonses under RSA 644:2 to passive panhandlers, including
the June 3 summons Officer Brandreth issued to Petrello, which
is the subject of this lawsuit. Officer Brandreth testified at
his deposition that he relied on the information in the February
5 email when he charged Petrello with disorderly conduct. See
doc. no. 42-2 at 7 of 18. When asked about guidance or
directives he had received from his superiors, Officer Brandreth
explained: “Basically one course of conduct for us is if someone
doesn’t step into the roadway and you can’t issue a pedestrian
in the roadway motor vehicle summons, you could go the
disorderly conduct violation route.” Id. at 6-7 of 18.
7 Lieutenant Reardon confirmed in his deposition that Officer
Brandreth was following department policy when he issued the
summons to Petrello:
Q. So is it fair to say, I mean, this reflected, you know—this reflected department policy as to how to use the disorderly conduct statute against a panhandler who is engaging in disorderly conduct?
A. Right.
Q. Okay. I take it when you send these out these types of documents the expectation is that officers will comply with guidance that’s provided, correct?
A. Yes, ideally, yes.
Doc. no. 28-3 at 10 of 30.
Officer Brandreth was not the only officer who acted
pursuant to “the recommended policy,” id. at 19 of 30, before it
appeared as an explicit directive in the July 2 email. Between
March 27, 2015 and the July 2 email, four other officers issued
five summonses to panhandlers who, like Petrello, did not step
into the road to solicit or collect a donation. Following the
July 2 email, the MPD issued 13 additional summonses under RSA
644:2 to passive panhandlers who did not step into the road.2
2 Between March 2015 and March 2016, the MPD issued a total of 19 summonses to panhandlers who, like Petrello, did not step into the road. See doc. no. 37-2. At least 10 different MPD officers were involved in issuing these 19 summonses. In two of these 19 instances, the “Good Samaritan” driver who stopped a car in the road to give money to the panhandler was also issued a summons for “Stopping/Standing/Parking.” Id. at 106 & 110 of 111.
8 II. June 3, 2015 Summons
On June 3, 2015, Petrello was passively soliciting
donations in a public place in Manchester. Specifically,
Petrello was standing on the grassy area between the road and
sidewalk on the west side of Maple Street, south of Bridge
Street.3 Petrello held a sign that said “Veteran” with smaller
writing underneath it. See doc. no. 28-16 at 5 of 15. Petrello
never stepped into the road to either solicit or collect
donations.
Officer Brandreth was on patrol at a nearby Seven-Eleven
store and noticed Petrello panhandling with her back to the
traffic light. Officer Brandreth saw about seven motorists
stopped at a red light hand Petrello items. Then, while the
traffic light was green, a Cadillac driving northbound on Maple
Street came to a complete stop and handed something to Petrello.
Petrello took the item from the driver, but she did not step
into the road. When the Cadillac stopped, a Jeep driving behind
the Cadillac was forced to stop. The Cadillac then drove
through the intersection, but the light turned red and the Jeep
was unable to make it through the intersection. If the Cadillac
had not stopped at the green light, then the Jeep would have
3At that location, Maple Street is a two-lane, one-way street with traffic heading northbound.
9 made it through the intersection while the light was still green
and would not have had to wait for the next green light.
Officer Brandreth approached Petrello and told her that she
could stand on the side of the road when traffic was stopped,
but she could not stop cars that were driving on the road.
Petrello responded that she did not stop anyone. Officer
Brandreth obtained Petrello’s driver’s license and discovered
that she had been issued a summons on May 5, 2015, for being a
pedestrian in the roadway. Officer Brandreth then issued
Petrello a summons to appear in Manchester District Court on
July 9, 2015, for one count of disorderly conduct “for
obstructing vehicular traffic” in violation of RSA 644:2, II(c).
Id. at 6 of 15. When Petrello asked Officer Brandreth how she
was being disorderly, Officer Brandreth responded:
Based on your behavior, OK, by being out here with the sign panhandling for money, having a car stop and then not allowing that second car who was not able to get through the intersection that it should have, OK, because they had a green light. So you’re stopping that person’s whole day, that second person. They had to wait for a whole other light cycle change, OK. So we don’t want people doing that anymore, OK. I understand you can be out here on the side of the road, that’s fine.
Doc. no. 28-18. While he was leaving, Officer Brandreth told
Petrello, “So if you can, don’t stop any other cars.” Id.
Petrello responded, “I don’t stop them at all. I’m on the side
of the road here. I don’t stop them. But you have a good day.”
10 Id. On August 31, 2015, the charge against Petrello was nolle
prossed.
Petrello stopped panhandling in Manchester after the charge
against her was nolle prossed. She continued to panhandle “off
and on” in Hooksett and Derry until July 2016. Doc. no. 28-15
at 5 & 11-12 of 12.
III. Manchester Ordinance
In March 2015, the Manchester Board of Mayor and Aldermen
began considering a proposed city ordinance, section 70.32,
entitled “Passing of Items to or from the Occupant of a Motor
Vehicle,” to address panhandling in the City (the “Ordinance”).
The Ordinance was modeled after an ordinance passed by the City
of Concord with nearly identical language. The Ordinance’s
stated purpose was “to promote the health safety and welfare of
the citizens traveling by vehicle in the City.” See doc. no.
30-5 at 2 of 33. The Ordinance stated: “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.” Id. The Ordinance
would not apply if a vehicle were located on a private road,
private property, or permitted parking area. Id.
On March 13, 2015, before the Board of Mayor and Aldermen
formally proposed the Ordinance, Lieutenant Reardon spoke with
11 the Chief of the Concord Police Department about the Concord
ordinance. Lieutenant Reardon reported his findings to Chief
Mara. On March 17, Alderman Joyce Craig sent a memo to the
Board of Mayor and Aldermen’s Committee on Administration with
the subject line “Panhandling Ordinance.” See id. at 1 of 33.
Alderman Craig attached to the memo a copy of the proposed
Ordinance, a copy of the Concord ordinance, and a New Hampshire
Union Leader article about the Concord ordinance. In the memo,
Alderman Craig stated:
This ordinance has been reviewed by City Solicitor Clark as well as Chief Mara. Over the years, the City of Manchester has experienced an increase of panhandlers, sometimes aggressive, in the City. Police officers have been actively enforcing state statutes to decrease panhandling. Adoption of this ordinance will provide officers with another tool to ensure public safety.
Id. The Committee on Administration discussed the Ordinance at
its April 21, 2015 meeting and unanimously recommended that the
Board of Mayor and Aldermen approve it.
In April 2015, Captain Soucy issued a Community Policing
Division report, which stated in relevant part:
After discussions with the City of Concord NH on the adoption of their new Panhandling Ordinance, our administration began discussing a similar approach to adopting an ordinance. The culmination of these efforts resulted in our Board of Mayor and Alderm[e]n adopting a similar ordinance here in Manchester. The City Solicitor’s office has been tasked with reviewing and finalizing the ordinance, which targets both the panhandler AND the motorist who exchange or receive any item between each other. Our hope is to have an
12 additional tool in the way of this new ordinance to help curb the panhandler activity which ultimately impedes the free flow of traffic and at times, places the motorists and panhandler at risk of injury.
Doc. no. 28-12 at 5 of 6.
On May 5, 2015, the full Board of Mayor and Aldermen
considered the Ordinance. Manchester Mayor Ted Gatsas stated
that “[w]e have an awful situation with this panhandling. If
you said to me what are the most calls we get in our office
right now it is about panhandlers.” Doc. no. 30-5 at 14 of 33.
During the meeting, several members of the Board expressed free
speech concerns related to the Ordinance. Alderman Garth
Corriveau stated that “if this went into a court they would look
at the minutes of this meeting and say everyone is talking about
panhandling so of course it is about panhandling.” Id. at 16 of
33. Deputy City Solicitor Thomas Arnold said that the Ordinance
was designed to regulate conduct, not speech, and that it must
be uniformly applied. Id. He stated that “[y]ou can’t apply
this ordinance solely to a panhandler. You have to apply it to
everyone because you are regulating the conduct not the speech.”
Id. Additionally, Chief Mara, who was present at the meeting,
said, “I think there is a real problem right now with the issue
of people stepping out and stopping traffic, motorists, as well
as the people that are panhandling.” Id. at 13 of 33. He
explained that “[a]nybody that is out there we have to treat
13 them the same. We can’t just focus in on panhandlers.” Id. at
14 of 33. The Board of Mayor and Aldermen voted to approve the
Ordinance. The City ultimately enacted the Ordinance on October
6, 2015. See Manchester, N.H., Code of Ordinances § 70.32
(2015).
In March 2016, Legal Division Captain Maureen Tessier
became aware that the City had enacted the Ordinance and
informed MPD officers that they could enforce the Ordinance.
The MPD’s understanding was that the Ordinance was intended to
apply to both motorists and pedestrians. Between March and
December 2016, the MPD issued seven summonses under the
Ordinance to six individuals—all panhandlers. In December 2016,
following Lieutenant Reardon’s deposition in this case and
consultation with the City Solicitor’s Office, the MPD decided
to cease enforcing the Ordinance until the conclusion of this
litigation. In January 2017, the MPD informed its officers to
refrain from enforcing the Ordinance.
DISCUSSION
In her second amended complaint, Petrello brings five
claims against the City under 42 U.S.C. § 1983, three based on
the June 3, 2015 summons and two challenging the Ordinance. See
doc. no. 9. In her objection to the City’s motion for summary
judgment, Petrello voluntarily dismisses Count V, her equal
14 protection claim concerning the Ordinance. See doc. no. 38 at 1
n.1. The parties move separately for summary judgment on Counts
I-IV. At oral argument, the parties agreed that there are no
genuine issues of material fact and the remaining claims raise
only questions of law that should be resolved on summary
judgment. The court first addresses Petrello’s Monell claims
based on the June 3, 2015 summons before turning to her First
Amendment challenge to the Ordinance.
I. Monell Claims (Counts I-III)
In Counts I-III, Petrello alleges that the City established
an unconstitutional policy or custom regarding panhandlers,
which Officer Brandreth enforced against Petrello in violation
of her First, Fourth, and Fourteenth Amendment rights.
Specifically, Petrello challenges the enforcement of a policy
that charges panhandlers who, like Petrello, never step into the
road while panhandling. Petrello does not challenge the
enforcement of RSA 644:2, II(c) with respect to panhandlers who
step into the road while panhandling.
A. Existence of a City Policy or Custom
Petrello alleges that the MPD developed and implemented a
policy or custom, attributable to the City, to charge
panhandlers for allegedly “obstructing vehicular traffic on
public streets” in violation of New Hampshire’s disorderly
15 conduct statute, see RSA 644:2, II(c), even when the panhandlers
do not step into the road. Doc. no. 9 at ¶ 7.
Municipalities “can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief” for alleged
constitutional violations arising from “a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers” or a “governmental ‘custom’
even though such a custom has not received formal approval
through the body’s official decisionmaking channels.” Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). “Monell is a
case about responsibility.” Pembaur v. City of Cincinnati, 475
U.S. 469, 478 (1986). Under § 1983, municipalities cannot be
held liable for the constitutional violations of their employees
based on a respondeat superior theory of liability. Monell, 436
U.S. at 691. Rather, “municipalities can be liable for
constitutional violations only if the violation occurs pursuant
to an official policy or custom.” Welch v. Ciampa, 542 F.3d
927, 941 (1st Cir. 2008). Thus, a plaintiff who brings a § 1983
action against a municipality must identify a “policy” or
“custom” attributable to the municipality that was the cause of
and the “moving force” behind the injury alleged. Haley v. City
of Boston, 657 F.3d 39, 51 (1st Cir. 2011) (quoting Bd. of
Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403-04 (1997)).
16 In her summary judgment motion, Petrello argues that MPD
officials with final policymaking authority for the City
established an official “policy” to enforce RSA 644:2, II(c)
against panhandlers who do not step into the road. In the
alternative, Petrello argues that the MPD developed a “custom”
of enforcing RSA 644:2, II(c) against such passive panhandlers.4
The City contends that this alleged policy cannot support a
Monell claim because only the Manchester Chief of Police has
authority to make final police department policy for the City
and the Chief did not approve the policy in this case.
To prove the existence of an official policy under Monell,
a plaintiff can show that “the alleged constitutional injury was
caused by a formal decision of a municipal legislative body or
by a person with final policymaking authority.” Welch, 542 F.3d
at 941 (internal citations omitted). “Authority to make
municipal policy may be granted directly by a legislative
enactment or may be delegated by an official who possesses such
authority, and of course, whether an official had final
policymaking authority is a question of state law.” Pembaur,
475 U.S. at 483; cf. St. Louis v. Praprotnik, 485 U.S. 112, 126
(1988) (“If . . . a city’s lawful policymakers could insulate
4 Petrello also initially raised a “failure to train” claim against the City, see City of Canton v. Harris, 489 U.S. 378, 388 (1989), but she subsequently withdrew that claim at oral argument.
17 the government from liability simply by delegating their
policymaking authority to others, § 1983 could not serve its
intended purpose.”). “In a § 1983 suit based on an official
policy promulgated by officials with final policymaking
authority, attribution to the municipality is easily
established.” Baron v. Suffolk Cty. Sheriff’s Dep’t, 402 F.3d
225, 236 (1st Cir. 2005) (citing Pembaur, 475 U.S. at 480).
Even in the absence of an official policy formally adopted
by a final policymaker, a municipality can still be held liable
for an unconstitutional custom or practice that is “so well
settled and widespread that the policy making officials of the
municipality can be said to have either actual or constructive
knowledge of it yet did nothing to end the practice.” Baron,
402 F.3d at 236-37 (quoting Bordanaro v. McLeod, 871 F.2d 1151,
1156 (1st Cir. 1989)); see also Praprotnik, 485 U.S. at 130
(noting that a municipality can be liable when “a series of
decisions by a subordinate official manifested a ‘custom or
usage’ of which the supervisor must have been aware”). “A
municipality can be held liable if its police chief is a
policymaker and acquiesces in a police custom or policy as to
which he has actual or constructive knowledge.” Kinan v. City
of Brockton, 876 F.2d 1029, 1035 (1st Cir. 1989).
The Manchester Chief of Police has final policymaking
authority to make police department policy for the City. See
18 Rossi v. Town of Pelham, 35 F. Supp. 2d 58, 73 (D.N.H. 1997)
(citing RSA 105:2-a). There is evidence that suggests that the
Chief may have delegated final policymaking authority on the
issue of panhandling to Captain Soucy, which would warrant
Monell liability based on departmental “policy,” but that
question is properly resolved by a jury. The record is
insufficient for the court to rule in Petrello’s favor on this
question as a matter of law. On the question of “custom or
practice,” however, the record is sufficient to find as a matter
of law that that the City is the responsible actor here.
In a typical case where a plaintiff tries to establish a
police department’s custom or practice under Monell, there is no
documentary evidence, or “paper trail,” that contains an express
directive to the officers to do the very thing which the
plaintiff alleges is unconstitutional. Nor is there typically a
set of depositions from the key officers involved in which they
unanimously agree that the challenged conduct occurred pursuant
to an official directive. But, this is precisely the kind of
evidence the jury would hear in this case.
First, while it is not clear that the Chief of Police
delegated final policymaking authority to Captain Soucy or
Lieutenant Reardon, it is clear that they both viewed their
roles as policymakers for the City on the issue of panhandling.
Captain Soucy made clear that he discussed questions of policy
19 on panhandling with the Chief and the Assistant Chief at
“command meetings.” Doc. no. 28-1 at 4 of 24. Captain Soucy
described conversations about panhandling occurring “ad nauseam”
within the MPD, including during roll-call trainings. Id. at 12
of 24. And both Captain Soucy and Lieutenant Reardon included
the City Solicitor’s Office in the discussions that led to the
decision in February 2015 to enforce the Disorderly Conduct
statute against the “passive” panhandlers. On this record, it
is difficult to imagine that the Chief lacked constructive
knowledge of the decision in February 2015 to charge “passive”
panhandlers, like Petrello, who did not step into the road.
Second, the evidence is undisputed that when Officer
Brandreth summonsed Petrello, he was not acting as some sort of
“rogue officer” who was relying on his own interpretation of the
Disorderly Conduct statute. Lieutenant Reardon confirmed that
Officer Brandreth’s issuance of the summons to Petrello
“reflected department policy as to how to use the disorderly
conduct statute against a panhandler who is engaging in
disorderly conduct.” Doc. no. 28-3 at 10 of 30; see also id. at
19 of 30 (testifying that Officer Brandreth was “following the
recommended policy” when he charged Petrello with disorderly
conduct). And, Officer Brandreth testified that he was acting
pursuant to the guidance contained in the February 5 email when
he issued the summons to Petrello. See doc. no. 42-2 at 7 of
20 18. Indeed, Lieutenant Reardon, who was tasked with issuing
“policy directives” to MPD officers, doc. no. 28-3 at 3 of 30,
sent the February 5 email to the officers, including Officer
Brandreth, with “the expectation . . . that officers will comply
with the guidance” that it provided. Id. at 10 of 30.
Third, even though Captain Soucy’s July 2 email post-dated
Petrello’s summons, that email provides direct evidence to
support a finding that it was the custom or practice of the MPD
to enforce the disorderly conduct statute against passive
panhandlers like Petrello. The July 2 email directs officers to
do precisely what Officer Brandreth did in Petrello’s case.
Finally, the record contains evidence of multiple incidents
of officers acting pursuant to the custom or practice. Between
March 2015 and March 2016, the record reveals that at least 10
different MPD officers were involved in issuing a total of 19
summonses to panhandlers who, like Petrello, did not step into
the road. Thus, the incidents were widespread and they involved
many different officers.
In sum, the record reveals that Chiefs Mara and Willard—
final policymakers for the City—either knew or should have known
about this MPD custom or practice, yet did nothing to end it.
More importantly, there is nothing in the record to suggest that
Chief Mara or Willard in any way disapproved of this custom.
The totality of this record supports only one reasonable
21 conclusion: the City is responsible for a custom or practice of
charging passive panhandlers, like Petrello, with disorderly
conduct under RSA 644:2, II(c) (hereinafter, “MPD Policy”).
Because the City does not dispute, nor could it on this record,
that the MPD Policy was the cause of and the “moving force”
behind Officer Brandreth’s decision on June 3, 2015 to issue the
summons to Petrello, see Bordanaro, 871 F.2d at 1156, the court
holds that Petrello has satisfied the threshold test for Monell
liability.5
The City is liable under Monell, however, only if Officer
Brandreth’s actions violated Petrello’s constitutional rights.
Petrello claims violations of her First, Fourth, and Fourteenth
Amendment rights. Taking the claims out of sequential order,
the court deals first with Count II, Petrello’s claim that her
First Amendment rights were violated.
B. First Amendment Claim (Count II)
Both the City and Petrello move for summary judgment on
this claim. For the reasons that follow, the City’s motion is
denied and Petrello’s motion is granted.
5 It is undisputed that Officer Brandreth acted pursuant to Lieutenant Reardon’s February 5 email and “recommended policy” when he issued the summons to Petrello. See doc. no. 28-3 at 19 of 30; doc. no. 42-2 at 7 of 18.
22 1. City’s Motion
The City argues that it is entitled to summary judgment on
this claim because the court previously granted Officer
Brandreth qualified immunity. The court granted Officer
Brandreth qualified immunity on Petrello’s First Amendment
claim, however, because “as of June 3, 2015, there was no
clearly established law prohibiting an officer from issuing a
summons to a panhandler whom he reasonably believed was
obstructing traffic.” Petrello v. City of Manchester, No. 16-
cv-008-LM, 2017 WL 1080932, at *6 (D.N.H. Mar. 21, 2017). In so
ruling, the court did not reach the underlying issue of whether
Officer Brandreth violated Petrello’s First Amendment rights
when he gave her the disorderly conduct summons under RSA 644:2,
II(c).
“Unlike individual defendants, municipalities are not
entitled to qualified immunity.” Walden v. City of Providence,
596 F.3d 38, 55 n.23 (1st Cir. 2010); see also Owen v. City of
Independence, 445 U.S. 622, 638 (1980). Thus, “it is not
impossible for a municipality to be held liable for the actions
of lower-level officers who are themselves entitled to qualified
immunity.” Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st
Cir. 1997).
Citing Joyce, the City argues that it is entitled to
summary judgment because the law was not clearly established
23 when Officer Brandreth gave her the summons and, therefore, the
City could not have been deliberately indifferent to Petrello’s
First Amendment rights. The City’s argument is misplaced.
In Joyce, the plaintiff brought several claims against
police officers who entered her home without a search warrant
and also sued the town under § 1983, alleging that the town’s
failure to properly train and supervise its police officers
caused the officers to unlawfully enter her home. See id. The
First Circuit concluded that the individual officers were
entitled to qualified immunity because “the unsettled state of
the law made it reasonable to believe” their conduct was
constitutional. Id. Based on that conclusion, the First
Circuit held that the town could not be liable under § 1983 for
failing to properly train and supervise its police officers
because the town “could not have been deliberately indifferent
to citizens’ rights in failing to teach the officers that their
conduct was unconstitutional.” Id. (internal quotation marks
and citation omitted).
Unlike the plaintiffs in Joyce, Petrello does not allege
that the City is liable under § 1983 for failing to train and
supervise its police officers. In fact, Petrello disclaimed her
failure to train theory at oral argument. Rather, Petrello
alleges that the MPD Policy itself is unconstitutional, which
24 caused Officer Brandreth to violate her First Amendment rights.
This distinction is important.
“If the allegation against the municipality involves a
failure to train, the plaintiff must put forth evidence of a
failure to train that amounts to ‘deliberate indifference to the
rights of persons with whom the police come into contact.’”
Fletcher v. Town of Clinton, 196 F.3d 41, 55 (1st Cir. 1999)
(quoting City of Canton, 489 U.S. at 388). In such a case, “a
finding that the law was not clearly established may foreclose
municipal liability for failure to train.” Id. at 56 (citing
Joyce, 112 F.3d at 23). However, when a plaintiff claims that a
municipal policy itself is unconstitutional, “resolving [the]
issues of fault and causation is straightforward.” Brown, 520
U.S. at 404; see also Haley, 657 F.3d 51-52 (describing the
different standard for establishing failure to train claims);
Rossi, 35 F. Supp. 2d at 78 n.1 (“[F]or a municipal policy that
is either facially unlawful or directs unlawful conduct,
plaintiffs need not further establish ‘deliberate
indifference.’” (citing Pembaur, 475 U.S. at 479)).
Without a failure to train claim, Petrello’s case is
distinguishable from Joyce. In short, a municipality can be
held accountable for violations of federal law regardless of
whether the relevant federal law was clearly established at the
time the municipality committed the violation. Municipal
25 liability is not foreclosed simply because the relevant law was
not clearly established when Officer Brandreth charged Petrello
with disorderly conduct. Cf. Askins v. Doe, 727 F.3d 248, 254
(2d Cir. 2013) (“Municipalities are held liable if they adopt
customs or policies that violate federal law and result in
tortious violation of a plaintiff’s rights, regardless of
whether it was clear at the time of the adoption of the policy
or at the time of the tortious conduct that such conduct would
violate the plaintiff’s rights.” (citing Owen, 445 U.S. at 656-
57)). Accordingly, the court DENIES the City’s motion for
summary judgment on Count II.
2. Petrello’s Motion
In her summary judgment motion, Petrello contends that
Officer Brandreth’s actions pursuant to the MPD Policy violated
her First Amendment rights. “The First Amendment, applicable to
the States through the Fourteenth Amendment, prohibits the
enactment of laws ‘abridging the freedom of speech.’” Reed v.
Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) (quoting U.S.
Const. amend. I). The court’s First Amendment analysis begins
with a three-part inquiry designed to ascertain the type of
speech at issue, the location of the speaker, and the nature of
the government regulation. See Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 797 (1985). Once the court
26 defines the nature of the speech, forum, and regulation at
issue, the court then applies the appropriate level of scrutiny
to the regulation.
Generally speaking, government regulations that restrict
protected speech in a traditional public forum receive the
highest scrutiny if they are directed at the content of speech;
such restrictions are presumptively unconstitutional. See Reed,
135 S. Ct. at 2226. Government regulation aimed at conduct, or
restrictions on the time, place, or manner of speech in a
traditional public forum receive a more deferential, but still
demanding form of review. See Cutting v. City of Portland, 802
F.3d 79, 86-87 (1st Cir. 2015). In short, the government’s
ability to restrict protected speech in traditional public
forums like public streets and sidewalks is “very limited.”
United States v. Grace, 461 U.S. 171, 177 (1983); see also
Cutting, 802 F.3d at 83 (“Given the role such places
historically have played in fostering public discussion and
debate, the government’s authority to regulate speech within
such places is especially limited.”).
Here, there is no dispute that Petrello was engaged in
protected speech in a traditional public forum. To determine
the level of scrutiny to apply, the court must determine whether
the MPD Policy was content based or content neutral.
27 a. Content Based or Content Neutral
“Government regulation of speech is content based if a law
applies to particular speech because of the topic discussed or
the idea or message expressed.” Reed, 135 S. Ct. at 2227.
First, courts must decide “whether a regulation of speech ‘on
its face’ draws distinctions based on the message a speaker
conveys.” Id. (citation omitted). Second, a facially neutral
law will be deemed content based if the law “cannot be
‘justified without reference to the content of the regulated
speech’” or was “adopted by the government ‘because of
disagreement with the message [the speech] conveys.’” Id.
(alteration in original) (quoting Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989)). On the other hand, “a regulation
that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some
speakers or messages but not others.” Ward, 491 U.S. at 791
(1989). “Government regulation of expressive activity is
content neutral so long as it is justified without reference to
the content of the regulated speech.” Id. (internal quotation
marks omitted).
Because the MPD implemented the MPD Policy to curtail
panhandling, as opposed to a broader category of speech,
Petrello urges that the MPD Policy is thereby necessarily
content based. The MPD Policy does not, however, direct
28 officers to enforce RSA 644:2, II(c) based on the content of a
speaker’s message. The February 5 and July 2 emails reference
panhandlers, but not in terms of any message the panhandler is
conveying, such as requests for donations. Cf. McLaughlin v.
City of Lowell, 140 F. Supp. 3d 177, 187 (D. Mass. 2015).
Rather, the MPD Policy calls on individual officers to decide
whether the presence of a panhandler causes an obstruction of
traffic at an intersection.
Officer Brandreth’s conduct was perfectly consistent with
this content-neutral approach. Officer Brandreth did not issue
Petrello the summons because he, or anyone else, disagreed with
the content of her speech. The record contains nothing to
suggest that Officer Brandreth even considered the message being
conveyed. He issued Petrello the summons only after he
witnessed a car stop to hand her money at a green light, which
in turn caused a second car to stop and thereby miss the green
light. In the end, however, the court need not resolve the
question of whether the MPD Policy is content based, because it
does not survive scrutiny as a content-neutral regulation. See
Rideout v. Gardner, 838 F.3d 65, 72 n.4 (1st Cir. 2016).
b. The MPD Policy is Not Narrowly Tailored
Analyzed as a content-neutral restriction, the MPD Policy
does not survive intermediate scrutiny. “Content-neutral
29 restrictions are subject to intermediate scrutiny, which demands
that the law be ‘narrowly tailored to serve a significant
governmental interest.’” Rideout, 838 F.3d at 71-72 (quoting
Ward, 491 U.S. at 791). To survive intermediate scrutiny, the
restriction must “not burden substantially more speech than is
necessary to further the government’s interest.” Cutting, 802
F.3d at 87 (internal quotation marks omitted). The government
bears the burden of proving that a speech restriction is
narrowly tailored. See United States v. Playboy Entm’t Grp.,
Inc., 529 U.S. 803, 816 (2000).
RSA 644:2, II(c) makes it unlawful to “[o]bstruct[]
vehicular or pedestrian traffic on any public street or sidewalk
or the entrance to any public building.” The statute—and the
MPD Policy applying the statute—are clearly intended to promote
public safety and ensure the free flow of traffic, which the
court recognizes are significant and legitimate government
concerns. See, e.g., McCullen, 134 S. Ct. at 2535; Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994); Cutting,
802 F.3d at 86. However, the MPD Policy burdens substantially
more speech than necessary to further those legitimate
interests.
On these facts, where a panhandler, like Petrello, remains
on the grass and never steps into the road, it is difficult to
understand how charging that person with obstructing traffic
30 serves the City’s interest in promoting traffic safety.
Petrello stood on the sidewalk passively holding a sign; she did
not physically obstruct the flow of traffic on the street.
While the traffic stoppage would not have occurred but-for
Petrello’s panhandling, it was the driver of the Cadillac, the
“Good Samaritan,” who ignored the traffic signal, stopped in the
road while the light was green, and caused the Jeep to miss the
green light. To the extent there was conduct that could
constitute “obstructing vehicular traffic,” the responsible
party would be the driver of the Cadillac.
During his deposition, Officer Brandreth confirmed that he
charged Petrello with disorderly conduct because the driver of
the Cadillac stopped at a green light in response to her speech
and caused “the traffic to back up . . . .” See doc. no. 42-2
at 7 & 11 of 18. It is undisputed that Petrello faced criminal
charges based on a third party’s reaction to her protected
speech. This is not a narrowly tailored approach to addressing
traffic safety problems. Cf. Stahl v. City of St. Louis, 687
F.3d 1038, 1041 (8th Cir. 2012) (“The fact that a person only
violates the ordinance if his or her action evokes a particular
response from a third party is especially problematic because of
the ordinance’s resulting chilling effect on core First
Amendment speech.”); Forsyth Cty. v. Nationalist Movement, 505
31 U.S. 123, 134 (1992) (“Listeners’ reaction to speech is not a
content-neutral basis for regulation.”).
Further, Petrello had no control over the timing of the
traffic light. If the light had stayed green for a few seconds
longer, the Jeep presumably would have made it through the
intersection and Officer Brandreth would not have charged
Petrello with obstructing traffic. If the traffic light had
been red when the driver of the Cadillac stopped and handed
Petrello money, Officer Brandreth would not have given her a
summons. Under either scenario, Petrello’s conduct would have
been the same: she would have been standing by the side of the
road holding her sign, never stepping into the road. Under
these circumstances, Petrello can ensure that Officer Brandreth
will not charge her with disorderly conduct only if she leaves
the sidewalk and stops panhandling. In this way, the MPD Policy
operates as a de facto ban on panhandling (by those like
Petrello who do not step into the road) and thereby chills
substantially more speech than necessary to serve the City’s
interests.
The City has other available measures to address its
legitimate interests in promoting public safety and preventing
traffic obstructions. For instance, the City could limit
enforcement to panhandlers who step into the road and obstruct
traffic. Or, the City could enforce the statute against
32 motorists who stop in the road at a green light, thereby causing
a traffic obstruction. See RSA 644:2, II(c); see also RSA
265:69 (prohibiting stopping, standing, or parking a vehicle on
the roadway). Either approach to enforcement would serve the
City’s interests and would not sweep so broadly as to capture
the passive panhandler.
While it may be easier to stop stationary panhandlers than
motorists, the City may not use convenience or efficiency as a
proxy for the narrow tailoring test. Rather, “[t]o meet the
requirement of narrow tailoring, the government must demonstrate
that alternative measures that burden substantially less speech
would fail to achieve the government’s interests, not simply
that the chosen route is easier.” McCullen, 134 S. Ct. at 2540;
see also id. (“A painted line on the sidewalk is easy to
enforce, but the prime objective of the First Amendment is not
efficiency.”).
For these reasons, the MPD Policy is not narrowly tailored
and Officer Brandreth’s enforcement of the MPD Policy violated
Petrello’s First Amendment right to free speech. The City is
therefore liable for Officer Brandreth’s enforcement of this
unconstitutional custom or practice. Accordingly, the court
GRANTS Petrello’s motion for summary judgment on Count II.
33 c. Relief
Petrello seeks declaratory and injunctive relief against
the City, as well as compensatory damages for the City’s
violation of her First Amendment rights.
Petrello asks the court to permanently enjoin the City from
charging panhandlers, including Petrello, for obstructing
vehicular traffic under RSA 644:2, II(c), when the panhandlers
do not step into the road. Petrello seeks a tailored injunction
based on the circumstances presented in this case. See Dayton
Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (“Once a
constitutional violation is found, a federal court is required
to tailor the scope of the remedy to fit the nature and extent
of the constitutional violation.” (internal quotation marks
omitted)).
A plaintiff seeking a permanent injunction must
demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
Petrello has satisfied each of these factors and demonstrated
that a permanent injunction is appropriate in this case.
34 First, Petrello has shown irreparable injury because
enforcement of the MPD Policy violated her First Amendment
rights. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss
of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”). Second,
Petrello has inadequate remedies at law to compensate for the
loss of her First Amendment rights and to protect those rights
should she panhandle in the future. See Legend Night Club v.
Miller, 637 F.3d 291, 302 (4th Cir. 2011) (“[M]onetary damages
are inadequate to compensate for the loss of First Amendment
freedoms.” (citing Joelner v. Vill. of Wash. Park, 378 F.3d 613,
620 (7th Cir. 2004))); Nat’l People’s Action v. Vill. of
Wilmette, 914 F.2d 1008, 1013 (7th Cir. 1990) (“[I]njunctions
are especially appropriate in the context of first amendment
violations because of the inadequacy of money damages.”).
Moreover, continued enforcement of the MPD Policy may have a
chilling effect on the First Amendment rights of panhandlers in
the City. Third, the balance of hardships weighs in Petrello’s
favor, as the deprivation of First Amendment rights and
preventing the unconstitutional enforcement of a statute
outweigh any burden that a narrowly tailored injunction may
impose on the City. Cf. Legend Night Club, 637 F.3d at 302-03
(state “is in no way harmed by issuance of an injunction
that prevents the state from enforcing unconstitutional
35 restrictions” (citing Joelner, 378 F.3d at 620)). Finally,
protecting First Amendment rights is in the public interest.
Accordingly, the court GRANTS Petrello’s requests for
declaratory relief and a permanent injunction prohibiting the
City from enforcing RSA 644:2, II(c) against passive panhandlers
under the circumstances presented in this case.
Finally, Petrello seeks compensatory damages for the City’s
violation of her First Amendment rights. See Memphis Cmty. Sch.
Dist. v. Stachura, 477 U.S. 299, 307 (1986) (“[T]he basic
purpose of § 1983 damages is to compensate persons for injuries
that are caused by the deprivation of constitutional rights.”
(internal quotation marks and emphasis omitted)). With respect
to Petrello’s First Amendment claim, the only issue remaining
for trial is the appropriate measure of damages resulting from
the June 3, 2015 incident.
C. Fourth Amendment Claim (Count I)
In Count I, Petrello alleges that Officer Brandreth, acting
pursuant to the MPD Policy, violated her “clearly established
right to be free from unreasonable seizures by detaining her
without reasonable suspicion that she was committing a crime and
issuing her a summons without probable cause that she had
violated RSA 644:2(II)(c).” Doc. no. 9 at ¶ 72. The court
previously found that Officer Brandreth was entitled to
36 qualified immunity on Count I because he had at least “arguable
probable cause” to charge Petrello with violation-level
disorderly conduct and “an arguable basis for reasonable
suspicion, a lower standard than probable cause, for an
investigative stop.” Petrello, 2017 WL 1080932, at *4-5 & n.5.
As the court explained, “[q]ualified immunity ‘requires a
somewhat lesser showing’ than probable cause . . . .” Id. at *3
(quoting Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004)); see
also Glik v. Cunniffe, 655 F.3d 78, 88 (1st Cir. 2011)
(“Officers are entitled to qualified immunity so long as the
presence of probable cause is at least arguable.” (internal
quotation marks omitted)). Though the court held that Officer
Brandreth was immune from individual liability, the court did
not address whether he violated Petrello’s Fourth Amendment
rights, such that the City is liable under Monell.
Petrello contends that she did not obstruct or impede
traffic because she never stepped into the road. As such, she
argues that Officer Brandreth lacked reasonable suspicion to
conduct an investigatory stop and probable cause to give her a
summons under RSA 644:2, II(c). The City argues that Officer
Brandreth had at least reasonable suspicion to stop Petrello.
The Fourth Amendment prohibits “unreasonable searches and
seizures.” U.S. Const. amend. IV. “A Fourth Amendment seizure
occurs when a police officer ‘has in some way restrained the
37 liberty of a citizen’ through ‘physical force or show of
authority.’” United States v. Camacho, 661 F.3d 718, 725 (1st
Cir. 2011) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).
“The protections of the Fourth Amendment apply not only to
traditional arrests, but also to those brief investigatory stops
generally known as Terry stops.” Id. at 724.
Here, Officer Brandreth conducted an investigatory stop; he
briefly detained Petrello when he inquired about her panhandling
and obtained her license. A “police officer may briefly detain
an individual for questioning if the officer ‘reasonably
suspects that the person apprehended is committing or has
committed a crime.’” Id. at 726 (quoting Arizona v. Johnson,
555 U.S. 323, 323 (2009)); see also Eldredge v. Town of
Falmouth, 662 F.3d 100, 106 (1st Cir. 2011) (“An investigatory
stop, commonly known as a Terry stop, requires only articulable
facts giving rise to a reasonable suspicion that a suspect may
be involved in criminal activity.” (internal quotation marks
omitted)). “[R]easonable suspicion requires more than a mere
hunch but less than probable cause.” United States v. Ruidiaz,
529 F.3d 25, 29 (1st Cir. 2008). The court must therefore
determine whether Officer Brandreth had a “reasonable,
articulable suspicion” that Petrello had committed or was about
to commit a crime. Id. at 28.
38 Officer Brandreth observed Petrello standing adjacent to
the road soliciting donations. He saw a Cadillac stop at a
green light and hand Petrello a donation, which in turn forced
the Jeep to stop and miss the green light. Based on that
sequence of events, Officer Brandreth observed what he thought
was, or was about to be, a violation of RSA 644:2, II(c).
Considering the totality of the circumstances, the court finds
that Officer Brandreth had reasonable suspicion to believe that
Petrello may have been engaging in or was about to engage in
conduct that would cause an obstruction of vehicular traffic in
violation of RSA 644:2, II(c). As such, Officer Brandreth did
not violate Petrello’s Fourth Amendment rights when he briefly
detained her to conduct an investigatory stop.
Petrello further alleges that issuance of the summons
itself was an unreasonable seizure because Officer Brandreth did
not have probable cause to believe that she had committed a
crime. Petrello contends that the summons constituted a
restraint on her liberty because it required her to attend court
on a future date. In its order granting Officer Brandreth
qualified immunity, the court did not address whether his
issuance of the summons constituted a separate seizure for
Fourth Amendment purposes. The court now answers that question
in the negative: the summons requiring Petrello to attend court
at a future date was not a Fourth Amendment seizure, nor did it
39 elevate the investigatory stop, which required only reasonable
suspicion, to a detention requiring probable cause.
In Britton v. Maloney, 196 F.3d 24, 29-30 (1st Cir. 1999),
the First Circuit held that the issuance of a criminal summons
alone, absent an arrest or other detention, did not constitute a
seizure for Fourth Amendment purposes. In Britton, the
plaintiff received a summons in the mail to appear in court on
criminal charges, but he was not arrested or detained. See 196
F.3d at 29. The charges against Britton were ultimately
dismissed at a subsequent hearing. Id. Britton brought a claim
for malicious prosecution under the Fourth Amendment, arguing
that the summons alone constituted an unreasonable seizure
because it threatened him with arrest if he failed to appear in
court. See id.
The court rejected Britton’s claim because his criminal
prosecution “did not impose any restrictions on his liberty
other than the legal obligation to appear in court at a future
date.” Id. The court explained that the issuance of a summons
does not constitute a Fourth Amendment seizure “simply because
it threatens a citizen with the possibility of confinement if he
fails to appear in court.” Id. at 30 (emphasis in original).
The First Circuit concluded:
Absent any evidence that Britton was arrested, detained, restricted in his travel, or otherwise subject to a deprivation of his liberty before the
40 charges against him were dismissed, the fact that he was given a date to appear in court is insufficient to establish a seizure within the meaning of the Fourth Amendment.
Id.
In DiBella v. Borough of Beachwood, 407 F.3d 599 (3d Cir.
2005), the Third Circuit made clear that a police officer’s in-
person issuance of a summons was not a seizure for Fourth
Amendment purposes. In DiBella, the defendants were handing out
literature to pedestrians, bicyclists, and drivers stopped at a
traffic light. See 407 F.3d at 600. A police officer
approached the defendants and told them to leave the area. Id.
When they refused, the officer issued them summonses for defiant
trespass. Id. After the criminal charges against them were
dismissed on appeal, the defendants brought a § 1983 claim for
malicious prosecution predicated on the Fourth Amendment. Id.
at 600-01. The Third Circuit rejected the malicious prosecution
claim, holding that the defendants were not seized for Fourth
Amendment purposes. See id. at 602-03. The court explained
that the defendants “were only issued a summons; they were never
arrested; they never posted bail; they were free to travel; and
they did not have to report to Pretrial Services.” Id. at 603.
Based on the reasoning in Britton and in DiBella, the court
holds that Officer Brandreth’s issuance of the summons did not
constitute a separate Fourth Amendment seizure and did not
41 elevate the investigatory stop to a detention requiring probable
cause. Cf. Burg v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010)
(“[T]he issuance of a pre-arraignment, non-felony summons
requiring a later court appearance, without further
restrictions, does not constitute a Fourth Amendment seizure.”);
Bielanski v. Cty. of Kane, 550 F.3d 632, 642 (7th Cir. 2008)
(“[A] summons alone does not equal a seizure for Fourth
Amendment purposes. To hold otherwise would transform every
traffic ticket and jury summons into a potential Section 1983
claim.”).
In sum, Officer Brandreth did not violate Petrello’s Fourth
Amendment rights because, as discussed above, he had reasonable
suspicion to briefly detain her. Accordingly, the court GRANTS
the City’s motion for summary judgment on Count I.
D. Fourteenth Amendment Claim (Count III)
In Count III, Petrello alleges that the MPD Policy, and
Officer Brandreth’s application of the policy, violated her
Fourteenth Amendment right to equal protection. She argues that
the MPD Policy discriminates against panhandlers, who are
disproportionately poor and homeless, and bears no rational
relationship to the City’s stated goal of addressing public
safety. The City argues that it is entitled to summary judgment
because Petrello has offered no evidence of discrimination.
42 “The Fourteenth Amendment’s Equal Protection Clause
prohibits a state from treating similarly situated persons
differently because of their classification in a particular
group.” Mulero-Carrillo v. Román-Hernández, 790 F.3d 99, 105-06
(1st Cir. 2015).
To establish an equal protection claim, a plaintiff needs to allege facts showing that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.
Davis v. Coakley, 802 F.3d 128, 132-33 (1st Cir. 2015) (internal
quotation marks and citations omitted). “An individual is
‘similarly situated’ to others for equal protection purposes
when ‘a prudent person, looking objectively at the incidents,
would think them roughly equivalent and the protagonists
similarly situated.’” Id. at 133 (quoting Barrington Cove Ltd.
P’ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st
Cir. 2001)). “Some evidence of actual disparate treatment is a
‘threshold requirement’ of a valid equal protection claim.”
Ayala—Sepúlveda v. Municipality of San Germán, 671 F.3d 24, 32
(1st Cir. 2012) (citation omitted). To meet that requirement,
Petrello must “identify and relate specific instances where
persons situated similarly in all relevant aspects were treated
differently,” to show that she was “singled out for unlawful
43 oppression.” Id. (emphasis in original) (internal quotation
marks omitted). She has not done so.
Petrello has failed to show that the MPD treated similarly
situated “non-panhandlers” differently than it treated her. She
merely speculates that the MPD observed “non-panhandlers”
engaged in roadside speech similar to Petrello’s panhandling,
such as campaigning politicians or protesters, and did not
charge those individuals with disorderly conduct. Despite
Petrello’s speculation, the record contains no evidence that MPD
officers observed and failed to charge any similarly situated
“non-panhandlers.” Absent actual evidence of disparate
treatment, Petrello has failed to establish the threshold
requirement of an equal protection claim. Accordingly, the
court GRANTS the City’s motion for summary judgment on Count
III.
II. First Amendment Challenge to the Ordinance (Count IV)
In addition to her three Monell claims stemming from the
June 3, 2015 incident, Petrello brings a First Amendment
challenge to the Ordinance. In Count IV, Petrello contends that
the Ordinance violates the First Amendment, both on its face and
as applied.
The Ordinance states: “No person shall knowingly distribute
any item to, receive any item from, or exchange any item with
44 the occupant of any motor vehicle when the vehicle is located in
the roadway.” Manchester, N.H., Code of Ordinances §
70.32(C)(1). The Ordinance defines “item” as “[a]ny physical
object.” 70.32(B). The Ordinance defines “roadway” as “[a]ll
public roads open to motorized vehicles within the city
exclusive of private roads, private property and areas in which
parking is permitted in the city.” Id.. The Ordinance contains
several exceptions:
“This section shall not apply to the distribution, receipt or exchange of any item with the occupant of a motor vehicle on private property or in a permitted parking area.” 70.32(C)(2).
“This section shall not apply to any law enforcement officer acting in the scope of his or her official duty.” 70.32(D).
“This section shall not apply to the distribution, receipt, or exchange of any item with the occupant of a motor vehicle located in the roadway in order to assist the occupant after a motor vehicle accident, with a disabled motor vehicle or where the occupant is experiencing a medical emergency.” 70.32(E).
The language of the Ordinance is straightforward: it
prohibits an individual from passing an item to or receiving an
item from the occupant of a car on a public road. The Ordinance
is silent on the location of the pedestrian who passes or
receives the item. Thus, regardless of whether a pedestrian is
standing in the street, the sidewalk, a traffic median, or a
45 driveway, she violates the Ordinance by exchanging an item with
the occupant of a vehicle located on the street.6
Before addressing the merits of her First Amendment
challenge, the City argues that Petrello lacks standing to bring
this claim.
A. Standing to Challenge the Ordinance
“Article III of the Constitution limits the jurisdiction of
federal courts to ‘Cases’ and ‘Controversies.’” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting
U.S. Const., Art. III, § 2). To establish Article III standing,
a plaintiff must show:
(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000).
The City asserts that Petrello lacks standing to challenge
the Ordinance because she has not suffered an injury in fact.
“[A]llegations of possible future injury are not sufficient” to
6 For simplicity, the court refers to the conduct prohibited by the Ordinance—distributing any item to, receiving any item from, or exchanging any item with the occupant of a motor vehicle located in the road—collectively as a “roadside exchange.”
46 constitute injury in fact. Clapper v. Amnesty Int’l USA, 133 S.
Ct. 1138, 1147 (2013) (internal quotation marks omitted).
However, an “allegation of future injury may suffice if the
threatened injury is ‘certainly impending,’ or there is a
‘substantial risk that the harm will occur.’” Susan B. Anthony
List, 134 S. Ct. at 2341 (quoting Clapper, 133 S. Ct. at 1150
n.5).
The City argues that Petrello has not suffered an injury
because she was never charged with violating the Ordinance and
has not panhandled in Manchester since the Ordinance was
enacted. While it is true that Petrello was never cited for
violating the Ordinance, “the threatened enforcement of a law”
may create an Article III injury. Id. at 2342. Thus, Petrello
may have standing to challenge the Ordinance although she was
not subject to “an actual arrest, prosecution, or other
enforcement action” under the Ordinance. Id.
In the First Amendment context, the First Circuit has
recognized that “two types of injuries may confer Article III
standing without necessitating that the challenger actually
undergo a criminal prosecution.” Mangual v. Rotger-Sabat, 317
F.3d 45, 56 (1st Cir. 2003). The first is when “the plaintiff
has alleged an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed
by [the] statute, and there exists a credible threat of
47 prosecution.” Id. at 56-57 (alteration in original) (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298).
The second is when the plaintiff “is chilled from exercising her
right to free expression or forgoes expression in order to avoid
enforcement consequences.” Id. at 57 (quoting N.H. Right to
Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir.
1996)). “In both of these situations, the plaintiff’s standing
‘hinge[s] on the existence of a credible threat that the
challenged law will be enforced.’” Reddy v. Foster, No. 14-cv-
299-JL, 2016 WL 1305141, at *5 (D.N.H. Apr. 1, 2016) (alteration
in original) (quoting N.H. Right to Life, 99 F.3d at 14), aff’d,
845 F.3d 493 (1st Cir. 2017); cf. N.H. Right to Life, 99 F.3d at
14 (“[A]s long as a credible threat of prosecution exists, a
litigant has standing to mount a pre-enforcement challenge to
the facial constitutionality of a statute on the basis that her
First Amendment rights arguably are being trammelled.”).
Here, Petrello has alleged an intention to engage in
panhandling conduct that plainly implicates First Amendment
interests. During her deposition, Petrello explained:
I would [panhandle], because you know, I hate to say it, $1,500 is not a lot to live on. By the time I am done with my rent, groceries, my electric, my phone, my internet, I am practically broke by the end of the month. So yes, I would. Right now, I have got $20 in my bank account. . . .
48 As of this moment right now, I have no plans on going out, but if that ordinance is removed and I am able to legally go out, then yes, I would go out.
Doc. no. 28-15 at 12 of 12. In other words, Petrello has
alleged that she would panhandle again in Manchester if not for
the threat of being charged under the Ordinance. And, because
the Ordinance prohibits the physical exchange of money between a
panhandler and a motorist on the road, Petrello’s intended
conduct is proscribed by the Ordinance. Although Petrello has
not panhandled in Manchester since the Ordinance was enacted,
she continued to panhandle intermittently in Hooksett and Derry
between December 2015 and July 2016. Thus, the record
demonstrates that the Ordinance has chilled Petrello from
exercising her right to panhandle in Manchester.
Further, the court finds a credible threat that the
Ordinance will be enforced against Petrello in the future.
Prior to the MPD’s decision to cease enforcing the Ordinance,
the MPD issued seven summonses to panhandlers for violating the
Ordinance between March and December 2016. As such, the MPD has
a demonstrated record of enforcing the Ordinance against
panhandlers engaging in roadside exchanges. Additionally,
before the Ordinance was enacted, Petrello twice received
summonses while engaging in the very conduct that the Ordinance
now bans. Therefore, there is a “substantial risk” that
Petrello will be charged under the Ordinance if she panhandles
49 again in Manchester. See Susan B. Anthony List, 134 S. Ct. at
2341. Accordingly, Petrello has Article III standing to
challenge the Ordinance.
B. Analysis of Petrello’s First Amendment Claim
Having concluded that Petrello has standing, the court now
turns to the merits of her First Amendment challenge.7 In
deciding whether the Ordinance is constitutional, the court
applies the same framework used above in analyzing Petrello’s
challenge to the MPD Policy. That is, the court must determine
the type of speech at issue, the location of the speaker, and
the nature of the regulation, and then apply the appropriate
level of judicial scrutiny.
1. The Ordinance Restricts Protected Speech
Like the MPD Policy, the Ordinance is a restriction on
protected speech. By prohibiting pedestrians from handing items
to motorists, the Ordinance plainly bars individuals from
engaging in First Amendment-protected activities such as
leafletting. See, e.g., McCullen, 134 S. Ct. at 2536; Schenck
7 Petrello asserts both “facial” and “as-applied” challenges to the Ordinance. While a facial challenge seeks to strike down a law in its entirety, an as-applied challenge seeks relief only to the extent that the law has been applied in a plaintiff’s particular case. See Doe v. Reed, 561 U.S. 186, 194 (2010). Because the court finds that the Ordinance, on its face, violates the First Amendment, the court does not address Petrello’s as-applied challenge.
50 v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 377 (1997);
Grace, 461 U.S. at 176; Martin v. City of Struthers, 319 U.S.
141, 143 (1943).
Moreover, the physical exchange of money is an integral
component and the ultimate purpose of panhandling, which is
expressive activity protected by the First Amendment. See,
e.g., Vill. of Schaumburg v. Citizens for a Better Env’t, 444
U.S. 620, 632 (1980); cf. Citizens United v. FEC, 558 U.S. 310,
336 (2010) (“Laws enacted to control or suppress speech may
operate at different points in the speech process.”). Where the
physical exchange of money is intertwined with solicitation
speech, it is entitled to First Amendment protection. Cf. Speet
v. Schuette, 726 F.3d 867, 876 (6th Cir. 2013) (“Schaumburg does
not suggest that the physical exchange of money may be isolated;
it is ‘intertwined’ with speech that the First Amendment
protects.”).
2. The Ordinance Restricts Speech in Public Forums
Like the MPD Policy, the Ordinance regulates speech in
traditional public forums. The pedestrian involved in a
roadside exchange is necessarily located on or adjacent to the
street, such as a sidewalk or median. As discussed above,
public streets and sidewalks constitute traditional public
51 forums, where the government’s authority to regulate speech is
“especially limited.” Cutting, 802 F.3d at 83.
3. The Ordinance is Content Neutral
As the Ordinance regulates protected speech in a public
forum, the court must next determine whether the Ordinance is
content based or content neutral. Petrello argues that the
Ordinance is content based because it targets panhandling
speech. The City argues that, like the regulation in Cutting,
the Ordinance is content neutral because it bans conduct
regardless of the content of the speech.
In Cutting, the First Circuit struck down a regulation that
made it unlawful to “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.” See 802 F.3d at 82. The City of Portland, Maine passed
the regulation to address public safety concerns related to
panhandling. See id. at 81-82. Portland had enforced the
regulation against just five people, all panhandlers. Id. at
82. Although the regulation had been enforced exclusively
against panhandlers, the court found that the regulation was
content neutral because it “restrict[ed] speech only on the
basis of where such speech [took] place.” Id. at 85. The First
Circuit explained that the regulation did “not take aim at—or
52 give special favor to—any type of messages conveyed in such a
place because of what the message says.” Id. (citing Reed, 135
S. Ct. at 2227). Thus, the First Circuit inquired whether the
regulation, on its face, was narrowly tailored to serve a
significant governmental interest.
Similar reasoning applies here. Although the MPD has only
enforced the Ordinance against panhandlers, the Ordinance, on
its face, does not regulate a particular type of speech or
target a specific subject matter. The Ordinance applies
generally to all exchanges involving the occupant of a motor
vehicle when that vehicle is located on the road. For example,
the Ordinance prohibits not only roadside panhandling and
leafletting, but also exchanges involving a taxi driver, mail
carrier, pizza delivery driver, or ice cream truck located on
the road. In enforcing the Ordinance, the MPD does not need to
consider the content of the speech being conveyed or, more
literally, the type of item being exchanged. The Ordinance does
not take aim at a particular type of message “because of what
the message says.” Id.
Moreover, the City enacted the Ordinance because “persons
who distribute any item to, receive any item from or exchange
any item with the occupant of a motor vehicle upon a roadway
present a threat to the free and safe flow of motor vehicle
traffic.” 70.32(A). Members of the Board of Mayor and Aldermen
53 indicated that safety concerns related to roadside conduct like
panhandling were the genesis for proposing the Ordinance, and
the Ordinance’s stated purpose is to “promote the health,
safety, and welfare of the citizens traveling by vehicle in the
City.” Id. Thus, the record reveals that the City enacted the
Ordinance for public safety reasons, specifically, to promote
the free flow of motor vehicle traffic. For these reasons, the
court finds that the Ordinance is a content-neutral restriction
on expressive activity.8 Cf. Watkins v. City of Arlington, 123
F. Supp. 3d 856, 866-67 (N.D. Tex. 2015)(ordinance prohibiting
pedestrians in the road from soliciting or distributing items to
occupants of vehicles stopped at traffic lights was content
neutral); Traditionalist Am. Knights of the Ku Klux Klan v. City
of Desloge, No. 4:13-CV-810 NAB, 2016 WL 705128, at *4 (E.D. Mo.
Feb. 23, 2016) (ordinance prohibiting exchanges between
pedestrians in the roadway and occupants of vehicles on the
roadway was content neutral because it applied to the exchange
of any item “without regard for communicative content”).
8 Whether the Ordinance is viewed as a restriction on conduct that incidentally burdens speech, see United States v. O’Brien, 391 U.S. 367, 376-77 (1968), or a time, place, and manner restriction, the court applies intermediate scrutiny to this content-neutral restriction. See Cutting, 802 F.3d at 83 n.4, 86-87 (applying intermediate scrutiny to a regulation “styled as a restriction only on conduct” that implicated the First Amendment).
54 4. The Ordinance is Not Narrowly Tailored
Like her challenge to the MPD Policy, Petrello’s First
Amendment challenge to the Ordinance hinges on whether the
Ordinance is “narrowly tailored to serve a significant
governmental interest.” Rideout, 838 F.3d at 72 (quoting Ward,
491 U.S. at 791). As with the MPD Policy, the government has a
significant and legitimate interest in protecting public safety
and promoting the free flow of traffic on streets. See, e.g.,
McCullen, 134 S. Ct. at 2535; Cutting, 802 F.3d at 86. The
Ordinance, which restricts interactions between pedestrians and
vehicles on the road, is intended to serve those interests.
To be narrowly tailored, however, the Ordinance must not
burden substantially more speech than is necessary to further
those interests. A “content-neutral restriction on speech in a
traditional public forum is facially unconstitutional if it does
not survive the narrow tailoring inquiry, even though that
ordinance might seem to have a number of legitimate
applications.” Cutting, 802 F.3d 79, 86-87 (citing McCullen,
134 S. Ct. 2518). “Thus, the seemingly tailored aspects of an
untailored restriction on speech in a traditional public forum
do not automatically save such a restriction from facial
challenge.” Id. (citing McCullen, 134 S. Ct. at 2534).
The Ordinance fails the narrow tailoring inquiry for four
main reasons: (1) the Ordinance bans roadside exchanges that do
55 not obstruct traffic or pose safety risks; (2) the Ordinance is
geographically overinclusive because it applies citywide; (3)
the Ordinance is underinclusive because it penalizes only
pedestrians, not motorists; and (4) the City has less speech-
restrictive means available to address its concerns.
First, the Ordinance, on its face, bans all roadside
exchanges in Manchester, regardless of whether those
interactions obstruct traffic or otherwise create public safety
issues. For example, the Ordinance prohibits a panhandler on
the sidewalk from accepting money from a motorist at a red
light, even though the interaction does not obstruct traffic or
endanger the public. Likewise, a leafletter standing on the
sidewalk violates the Ordinance when she hands a flyer to a
motorist stopped in the street, even though the brief exchange
does not create a traffic safety problem. Importantly, the
Ordinance burdens the protected speech of pedestrians who are
not standing in the road and thus not physically obstructing
traffic. Courts have upheld regulations prohibiting pedestrians
from standing in the street to solicit donations or distribute
items where those regulations explicitly allowed pedestrians to
stand on the sidewalk and engage in such activity. See, e.g.,
Watkins, 123 F. Supp. 3d at 868-69; Traditionalist Am. Knights
of the Ku Klux Klan v. City of Desloge, 775 F.3d 969, 976-79
(8th Cir. 2014). The Ordinance, however, penalizes pedestrians
56 who are safely standing on the sidewalk. Cf. Reynolds v.
Middleton, 779 F.3d 222, 231 (4th Cir. 2015) (ordinance
prohibiting “all roadside leafletting and solicitation, even
where those activities would not be dangerous,” failed narrow
tailoring) (emphasis in original). As such, the Ordinance bans
roadside exchanges irrespective of whether that ban advances the
City’s interests.
Similarly, the City has failed to demonstrate citywide
issues related to roadside exchanges justifying the Ordinance’s
wholesale, citywide ban on them. The Ordinance, like the
regulation at issue in Cutting, is geographically overinclusive.
In Cutting, the record established that only a handful of
medians in Portland posed a public safety danger. See 802 F.3d
at 89. Portland, however, passed an ordinance prohibiting
people from standing on all median strips in the city. Id. The
First Circuit held that the regulation was geographically
overinclusive, explaining that “[a]bsent evidence about whether
the City’s other median strips present the same or a similar
danger, we have no basis for concluding that a substantial
number of them do.” Id. Likewise, here, the City has not
provided any evidence that a citywide ban on roadside exchanges
is necessary to address public safety concerns.
Other courts have reached the same conclusion under similar
circumstances. In Reynolds, the Fourth Circuit explained that a
57 regulation prohibiting people on roads and medians from
distributing handbills, soliciting contributions, and selling
merchandise to vehicle occupants was not narrowly tailored to
address a limited safety problem. See 779 F.3d at 231.
The Amended Ordinance applies to all County roads, regardless of location or traffic volume, and includes all medians, even wide medians and those beside traffic lights and stop signs. The Ordinance thus prohibits all roadside leafletting and solicitation, even where those activities would not be dangerous. The County’s evidence, however, established, at most, a problem with roadway solicitation at busy intersections in the west end of the county. Given the absence of evidence of a county-wide problem, the county-wide sweep of the Amended Ordinance burdens more speech than necessary, just as the statute in McCullen—a statewide statute aimed at a problem in one location—burdened more speech than necessary.
Id. (emphasis in original). In Comite de Jornaleros de Redondo
Beach v. City of Redondo Beach, 657 F.3d 936, 940 (9th Cir.
2011), the Ninth Circuit struck down an anti-solicitation
regulation that prohibited “stand[ing] on a street or highway
and solicit[ing], or attempt[ing] to solicit, employment,
business, or contributions from an occupant of any motor
vehicle.” The court found that the regulation was
geographically overinclusive and failed narrow tailoring. See
Redondo Beach, 657 F.3d at 948-50.
The Ordinance applies citywide to all streets and sidewalks in the City, yet the City has introduced evidence of traffic problems only with respect to a small number of major streets and medians. The City has offered no evidence to justify extending its
58 solicitation ban throughout the City in such a sweeping manner. Because the burden rests on the City to submit evidence in support of its position, we cannot simply assume that the City’s other streets, alleys, and sidewalks allegedly suffer from similar solicitation-related traffic problems.
Id. at 949.
The same reasoning applies here. The Ordinance prohibits
roadside exchanges on every public street in Manchester, from
quiet residential roads to busy intersections, despite the fact
that there is almost no evidence in the record that roadside
exchanges in the City actually obstruct traffic or endanger the
public. In fact, there is evidence of only one accident in
Manchester that involved a roadside exchange.9
Unlike the defendants in Cutting, Reynolds, and Redondo
Beach, the City has not established that roadside exchanges pose
safety risks at even a handful of busy streets or intersections
in Manchester. The City compiled no relevant data and conducted
no studies prior to passing the Ordinance. Rather, the City
simply modeled the Ordinance after a nearly identical ordinance
passed by the City of Concord. As such, the City adopted a
sweeping ban on expressive activity to address traffic flow and
9 In its objection to Petrello’s summary judgment motion, the City attaches an affidavit of Captain Tessier noting that between 2014 and 2016 there were 247 “pedestrian accidents” in the City. See doc. no. 39-2. The City, however, has provided no evidence connecting any of those accidents to roadside exchanges.
59 safety problems that—on this record—do not exist, or, at best,
are limited to only a few streets or intersections in
Manchester.10 Due to the lack of evidence in the record of
citywide problems related to roadside exchanges, the only
reasonable conclusion is that the Ordinance burdens
substantially more speech than is necessary to further the
City’s interests. See Ward, 491 U.S. at 799 (“Government may
not regulate expression in such a manner that a substantial
portion of the burden on speech does not serve to advance its
goals.”).
Third, the Ordinance is underinclusive in that it penalizes
only the pedestrian, not the motorist, involved in a roadside
exchange. Despite the MPD’s understanding that the Ordinance
was intended to be enforceable against motorists as well as
pedestrians, the plain language of the Ordinance penalizes only
pedestrians who pass items “with the occupant of any motor
vehicle when the vehicle is located in the roadway.”
10For example, there is at least some evidence in the record of safety concerns at the Interstate 293 off-ramp near the Mall of New Hampshire. See, e.g., doc. no. 28-1 at 11 of 24; doc. no. 28-5 at 8 of 18; doc. no. 28-29 at 12 of 19. If the City had pinpointed specific locations in Manchester with a demonstrated record of safety problems related to roadside exchanges and limited its regulation accordingly, such a regulation would likely survive First Amendment scrutiny. Cf. Cutting, 802 F.3d at 89-90.
60 70.32(C)(1). The Ordinance does not address or penalize the
motorist involved in a roadside exchange.
The City’s stated purpose for passing the Ordinance was to
promote public safety because “persons who distribute any item
to, receive any item from or exchange any item with the occupant
of a motor vehicle upon a roadway present a threat to the free
and safe flow of motor vehicle traffic.” 70.32(A). But if a
pedestrian on the sidewalk presents “a threat to the free and
safe flow of motor vehicle traffic,” id., then the motorist who
physically stops in the road to pass or receive an item
certainly presents that very same threat. The Ordinance,
however, does not penalize the motorist. To promote public
safety and ensure the free flow of traffic, such a regulation
would address not just pedestrians, but motorists as well. The
Ordinance’s failure to do so raises serious concerns with
respect to the narrow tailoring analysis. Cf. Reed, 135 S. Ct.
at 2232 (holding that underinclusive sign regulation failed
strict scrutiny); Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656,
1670 (2015) (“Underinclusivity creates a First Amendment concern
when the State regulates one aspect of a problem while declining
to regulate a different aspect of the problem that affects its
stated interest in a comparable way.” (emphasis omitted));
Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 87 (1st Cir.
2004) (“[W]here the government states that it rejects something
61 because of a certain characteristic, but other things possessing
the same characteristic are accepted, this sort of
underinclusiveness raises a suspicion that the stated neutral
ground for action is meant to shield an impermissible motive.”).
Fourth and finally, the City has less speech-restrictive
means at its disposal to address legitimate public safety and
traffic flow concerns. The City can enforce existing speech-
neutral traffic laws to further its safety interests. For
example, when a motorist stops in the road to give an item to a
pedestrian and thereby impedes the free flow of traffic, the MPD
could cite the motorist for obstructing vehicular traffic. See
RSA 644:2, II(c); see also RSA 265:69 (prohibiting stopping,
standing, or parking a vehicle on the roadway). When a
pedestrian steps into the travelled portion of the road to
accept a donation, thereby creating a public safety hazard, the
MPD could charge the pedestrian for walking in the road. See
RSA 265:39, I (“Where sidewalks are provided it shall be
unlawful for any pedestrian to walk along and upon an adjacent
roadway.”); RSA 265:40, I (“No person shall stand on the
travelled portion of a roadway for the purpose of soliciting a
ride, employment, business or contributions from the occupant of
any vehicle.”).
Thus, the City has several options under existing New
Hampshire law to address roadside exchanges that cause public
62 safety or traffic flow issues. In fact, the record shows that
the MPD was successfully enforcing these laws to prevent unsafe
roadside exchanges that, for example, involved panhandlers
walking between cars on the road.
For the reasons outlined above, the record reveals that the
Ordinance burdens substantially more speech than is necessary to
further the City’s legitimate safety interests. In passing the
Ordinance, the City “sacrificed speech for efficiency, and, in
doing so, failed to observe the close fit between ends and means
that narrow tailoring demands.” Cutting, 802 F.3d at 92
(internal quotation marks and alteration omitted). Thus, the
Ordinance, on its face, violates the First Amendment.
Accordingly, the court GRANTS Petrello’s motion for summary
judgment on Count IV.
5. Relief
Petrello seeks declaratory and injunctive relief against
the City. For the same reasons stated with respect to the
injunction under Count II, Petrello has demonstrated that a
permanent injunction is appropriate under Count IV. See eBay
Inc., 547 U.S. at 391. Accordingly, the court GRANTS Petrello’s
requests for declaratory relief and a permanent injunction
against the enforcement of Manchester City Ordinance § 70.32.
63 CONCLUSION
For the foregoing reasons, Petrello’s motion for summary
judgment (doc. no. 27) is GRANTED as to Counts II and IV and
DENIED as to Counts I and III. The City’s motion for summary
judgment (doc. no. 30) is GRANTED as to Counts I and III and
DENIED as to Counts II and IV. Count V is dismissed.
IT IS FURTHER ORDERED THAT:
(1) The City of Manchester’s policy of enforcing RSA 644:2, II(c) against passive panhandlers who do not step into the road or otherwise physically obstruct traffic, is hereby DECLARED to be unconstitutional in violation of the First Amendment of the United States Constitution;
(2) The City of Manchester is hereby PERMANENTLY ENJOINED from enforcing RSA 644:2, II(c) against passive panhandlers, including Petrello, who do not step into the road or otherwise physically obstruct traffic;
(3) Manchester City Ordinance § 70.32, entitled “Passing of Items to or from the Occupant of a Motor Vehicle,” is hereby DECLARED to be unconstitutional on its face in violation of the First Amendment of the United States Constitution;
(4) The City of Manchester is hereby PERMANENTLY ENJOINED from enforcing Manchester City Ordinance § 70.32; and
(5) Trial will be held as scheduled on the issue of Petrello’s compensatory damages with respect to Count II.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
September 7, 2017
64 cc: Elliott Berry, Esq. Gilles R. Bissonnette, Esq. Robert J. Meagher, Esq. Michael B. O’Shaughnessy, Esq. James G. Walker, Esq.
2017 DNH 173 (Petrello v. City of Manchester, et al.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.