Facing constitutional questions, NH prosecutors drop 'loitering and prowling' case against climate activist

Environmental justice activist Jess Mills was set to stand trial this week in New Hampshire. But days after his lawyer challenged the constitutionality of the law he was charged under, the Concord City Prosecutor’s office dropped the case.

Mills, who lives in Massachusetts, was charged with appearing at a place and at a time “under circumstances that warranted alarm,” under the state’s “Loitering or Prowling” statute. His attorney, Kira Kelley, argued the law is too vague and broad, limits actions protected by the first amendment, and opens the door for race and class prejudice.

Concord prosecutors did not respond to multiple requests for comment before this story was published.

What does 'loitering and prowling' mean?

New Hampshire’s Loitering or Prowling statute says a person violates the law if they “knowingly appear at a place, or at a time, under circumstances that warrant alarm for the safety of persons or property in the vicinity.”

In Mills’ case, he appeared at 3:45 a.m. on a public roadway near the Merrimack Generating Station, a coal plant in Bow that activists have been working to shut down for years.

Julian Jefferson, a professor at the University of New Hampshire’s Franklin Pierce School of Law, said the spirit of the law is about allowing police to have grounds to challenge someone when they’re in a place where they reasonably have no purpose and are causing alarm to a community.

“It’s not used that often," he said, "but when it is used, in my experience, it’s used against people who are homeless or unhoused."

Generally, he said, these kinds of charges don’t turn into a trial, as they were set to in Mills’ case.

It’s similar to laws around criminal trespassing, jaywalking or speeding, Jefferson said, in that they fall under the category of a “pretextual stop.”

“The reality is, an officer really doesn't care about loitering, especially if it's not the subject of a 911 call coming in,” he said. “They're using that because they have this suspicion, but it's not enough to initiate a seizure, so you can use an underlying statute where your real goal is to try to see if this person is up to some other activity that you are interested in.”

Jefferson said New Hampshire’s loitering and prowling law is vague, and its constitutionality is suspect. He pointed to the U.S. Supreme Court case Chicago vs. Morales, in which a “gang congregation” ordinance in Chicago was deemed vague and arbitrary.

“This is the kind of law that is turning the law enforcement officer into the legislature,” he said. “This just provides way too much discretion and also is not specific enough to give an ordinary citizen notice of what is breaking the law and what is not.”

In a legal filing, Kelley argues that New Hampshire's statute is too vague and could encourage law enforcement officers to exercise prejudice. Similar laws have been overturned in other states, like Texas, California, and Florida, they note.

“Here, an operative term is ‘warranting alarm,’ which invites bias against people whose identities have long been prejudicially equated with suspicion and alarm,” Kelley wrote.

Kelley also wrote that the law is too broad, criminalizing actions that are actually legal, and “creates an impermissible chilling effect” on freedom of speech.

“Free speech includes wearing alarming costumes,” they write. “Free speech includes screaming and yelling, which are constitutionally protected notwithstanding being alarming so long as the speaker avoids yelling the carefully articulated exceptions to First Amendment protections.”

Finally, Kelley said the law violates the constitution by having law enforcement officers ask people to incriminate themselves before they are taken into custody.

In an interview, Jess Mills said he was happy not to have the charges hanging over his head, but it's still not a satisfying conclusion.

“I don’t think it will feel that way until I know that no one else is going to be harassed with this statute the way that I have been, and presumably the way that many others have been, with more unfortunate and debilitating consequences," Mills said.

The campaign to shut down Bow’s coal plant

In Mills’ case, evidence disclosed by the state of New Hampshire showed that police were interested in him because they suspected he was affiliated with the No Coal No Gas campaign, according to a press release issued by Kelley’s organization, the Climate Defense Project, along with the Climate Disobedience Center.

That coalition has been trying to shut down the Merrimack Generating Station – the last running coal plant in New England.

The press release also said law enforcement officers were “in close communication” with representatives from the coal plant on the morning Mills was arrested.

Activists with No Coal No Gas have been publicly calling for the closure of Bow’s coal plant for years. Dozens were arrested at the plant in September 2019, and more than 20 people were arrested for trying to block a train from delivering coal in December 2019. In October 2021 advocates, including Mills, gathered for another demonstration that was met with a large police presence and several arrests.

This year, that plant failed to win funding from a program designed to help it run in the future. It’s not yet clear what that means for the future of the plant.

In the press release from the Climate Disobedience Center and the Climate Defense Project, Mills says he doesn’t consider the dismissal of his charges a conclusion.

“The fight will continue until the Loitering and Prowling statute has been struck down and the Merrimack Generating Station closed for good,” he said.