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Petrello v. City of Manchester

United States District Court, D. New Hampshire

September 7, 2017

Theresa M. Petrello
City of Manchester, et al. Opinion No. 2017 DNH 173

          Elliott Berry, Esq.

          Gilles R. Bissonnette, Esq.

          Robert J. Meagher, Esq.

          Michael B. O'Shaughnessy, Esq.

          James G. Walker, Esq.



         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.


         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).


         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. 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 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 anypublic street or sidewalk or the entrance to anypublic building . . . .

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.

         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 Police[1] 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 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.

         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]

         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 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.” 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 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 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 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.


         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 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 ...

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