In 2015 the City of Manchester undertook an effort to curb panhandling through the enforcement of a disorderly conduct statute, RSA 644:2, and through the adoption of an ordinance prohibiting the passing of items from the occupant of a vehicle. City police officers received instructions that if a panhandler causes traffic to slow or become impeded while accepting a donation they can be charged with disorderly conduct even if they are not standing or stepping into a public way.
On June 3, 2015 Theresa Petrello was observed standing on the grassy area between the sidewalk and Maple Street near the stop light controlled intersection of Bridge Street. She was soliciting donations holding a sign that said “Veteran.” A police officer observed seven vehicles that had stopped at the red light and gave Petrello donations. Then, while the traffic light was green, a Cadillac came to a complete stop and handed something to Petrello. This caused a Jeep following behind to stop. When the Cadillac resumed its movement the light turned red and the Jeep was unable to make it through the intersection. At no time did Petrello step into the street. The police officer cited Petrello for disorderly conduct because she had caused a vehicle to stop in traffic.
In October of 2015 the City enacted an ordinance that said: “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.” The Ordinance would not apply if a vehicle were located on a private road, private property, or permitted parking area.
Petrello challenged both her disorderly conduct citation and the City ordinance claiming violations of her civil rights protected under the First, Fourth and Fourteenth Amendments. The Court found that Petrello’s conduct was protected speech and that the government’s ability to restrict protected speech in traditional public forums like public streets and sidewalks is very limited. The City disorderly conduct enforcement policy operated 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 in traffic safety. To the extent there was conduct that could constitute “obstructing vehicular traffic,” the responsible party would be the driver of the Cadillac. The Court also ruled unconstitutional and unenforceable the City Ordinance because it also burdens substantially more speech than is necessary to further the City’s legitimate safety interests.
The City was permanently enjoined by the Court from enforcing its disorderly conduct policy on passive panhandlers that do not step into the road. The City was also permanently enjoined from enforcing Manchester City Ordinance § 70.32, entitled “Passing of Items to or from the Occupant of a Motor Vehicle.”