The ACLU of New Hampshire has filed a class-action lawsuit challenging the constitutionality of New Hampshire’s decades-old loitering law.
Under that law, people can be charged with a violation if police believe someone’s behavior in a public place “warrants alarm.” That’s a standard the ACLU says is too vague.
The lawsuit argues the loitering law is unconstitutional because it violates the Fourth Amendment’s right to due process and the Fourth Amendment’s right against unreasonable search and seizures.
ACLU of New Hampshire’s Legal Director Gilles Bissonnette spoke with NHPR’s All Things Considered host Julia Furukawa about the lawsuit and how loitering laws have been used in New Hampshire.
Transcript
I have always thought of loitering as standing around [or] hanging out where you aren't supposed to be standing around or hanging out. How does the state of New Hampshire define it?
So New Hampshire has had this loitering law on the books since the early 70s. It was updated or modified in the mid 1980s. And basically what it says is that a person commits a violation of this loitering 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.
The problem that we think exists with that language is that it allows for unfettered discretion for police to stop and cite individuals. I mean, these are phrases that have no definition. And that's exactly what we've seen, unfortunately, in our over-two-yearlong investigation of how this law has been enforced.
Well, let's talk more about that. How, in your opinion, have police been improperly using this loitering law?
This is a law that is repeatedly used in New Hampshire. In any given year, we know that there's around 200 cases in which this law has been charged and we know that many of those individuals are unhoused. We've seen in Manchester, for example, when you look at the dates between July 2021 and December 2024, there are approximately 89 cases disposed in circuit court where Manchester charged a violation. And of those 89 cases, at least 50 involved unhoused individuals. We think that is tremendously significant. So when we see a marginalized group that seems to be disproportionately subjected to a law like this that provides unfettered discretion, that gives us real concern and we think demonstrates why a law like this really needs to be struck down.
There are times in which people are hanging out, possibly suspiciously, in public places. And police could need some power in that situation to enforce a law. So how would you rewrite this law if you could?
Well, I think one of the problems with this law, right, is the standard “warrant alarm for safety of persons or property.” The problem is when you want to criminalize something, you need to do it in a clear and defined way so individuals can conform their conduct to the prohibitions. There may be ways to make that clearer. But what we know is this law isn't clear, right? There's nothing about this language that even requires a crime [that’s] likely to be committed. So I think the problem here is when you have a lack of clarity, it just gives police too much power.
Have you spoken to anyone in law enforcement about what they feel about this?
Well, I'm aware of public statements that have been made since we filed this lawsuit, including from the city of Manchester. I think one of the things that so concerns us is the fact that when you look at many of these cases, where homeless individuals have been charged, it's not the example that you articulated previously of like, that's so clearly suspicious or someone's about to commit a crime. We're talking about, for example, an individual who's outside a corporate office building being cited for loitering, an individual walking in an alleyway, an individual sleeping in front of an entryway of a church, sleeping near the stairs of a parking garage. So, listen, if law enforcement want this power, they need to use it responsibly. And we just haven't seen that in many of the cases that we're able to document.
Editor’s note: The state Attorney General's office said Tuesday it's still reviewing the lawsuit.
