United States District Court, D. New Hampshire
Theresa M. Petrello
City of Manchester, et al. Opinion No. 2017 DNH 173
Elliott Berry, Esq.
R. Bissonnette, Esq.
J. Meagher, Esq.
Michael B. O'Shaughnessy, Esq.
G. Walker, Esq.
MCCAFFERTY UNITED STATES DISTRICT JUDGE.
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.
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).
Efforts to Curb Panhandling in Manchester
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.
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.
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.
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.
first email, sent on February 5, 2015, by Lieutenant Reardon
In an effort to address the numerous issues resulting from
those who use the roadways for unlawful purposes- to include
utilizing the DOC as your first charging option outlined
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.
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.
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 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
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.
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.
Reardon confirmed in his deposition that Officer Brandreth
was following department policy when he issued the summons to
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?
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.
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.
June 3, 2015 Summons
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. 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.
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.
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
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.
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.
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.
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
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.
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.
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).
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
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.
Monell Claims (Counts I-III)
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