Petrello v. City of Manchester

• Decision Date: 07 September 2017
• Docket Number: Civil No. 16-CV-008-LM
• Citation: 2017 DNH 173
• Parties: Theresa M. Petrello v. City of Manchester, et al.
• Court: U.S. District Court — District of New Hampshire

2017 DNH 173

Theresa M. Petrello v. City of Manchester, et al.

Civil No. 16-CV-008-LM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

September 7, 2017

ORDER

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.

STANDARD OF REVIEW

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).

BACKGROUND

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 mostappropriate 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 any public street or sidewalkor the entrance to any public 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 Police¹ 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. AndCaptain 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...