Altos Agency

Dec 122014

On December 12, 2014, the American Civil Liberties Union of New Hampshire filed an amicus brief before the New Hampshire Supreme Court in the case Farrelly v. City of Concord, et. al.  In this case, the plaintiff has asserted intentional tort claims against the City of Concord after Concord police officers arrested and prosecuted him pursuant to a statute, RSA 644:4, I(f), that had been struck down by the New Hampshire Supreme Court four years earlier in State v. Pierce, 152 N.H. 790 (2005) as violating the free speech protections of Part I, Article 22 of the New Hampshire Constitution.  The lower court held that the City was entitled to official immunity against the plaintiff’s intentional tort claims because the police officers were unaware that the statute was unconstitutional at the time of the arrest despite being provided this information by their employer.

This case raises an important question as to whether, for a police officer and his employer to obtain official immunity for intentional torts, the officer in question must have acted under a “reasonable belief” that his conduct is authorized by law as required under Part I, Article 14 of the New Hampshire Constitution.  Under this “reasonable belief” standard, (i) the officer must have subjectively believed that his conduct was unlawful, and(ii) that belief must be objectively reasonable when measured against that of a reasonably well-trained officer.  The lower court examined the former and not the latter and, therefore, we argue that its decision did not comply with Article 14 of the New Hampshire Constitution.

As we argue in the brief, the policy considerations of the lower court’s decision to not apply an objectively reasonable standard are significant.  Indeed, the lower court’s ruling, if affirmed, would considerably restrict—if not outright eliminate—the ability of plaintiffs to seek redress for intentional torts in state courts against police officers and municipalities, including intentional torts arising out of clear violations of rights protected under the federal and state constitutions.  Under the lower court’s ruling, a municipality can obtain immunity for an intentional tort simply if the officer in question subjectively believed in the lawfulness of his or her actions, including relying on a statute that clearly has been held unconstitutional but has not been formally repealed.  Such a rule would immunize, based solely on the officer’s subjective beliefs, even objectively improper conduct that no reasonably well-trained officer would ever think is appropriate.  An objective standard, on the other hand, recognizes the axiomatic principle that it has always been the province of the courts, not law enforcement, to determine the reasonableness of an officer’s conduct in ascertaining whether immunity principles apply to violations of fundamental rights.

On December 23, 2015, the New Hampshire Supreme Court affirmed the lower court’s decision.

Cooperating Attorney: Lawrence Vogelman of Nixon, Vogelman, Barry, Slawsky & Simoneau, P.A.

Legal Documents: ACLU-NH Amicus Brief; Farrelly NH Supreme Court Decision

 December 12, 2014  Tagged with:
Nov 042014

We represent a 24-year-old man who is homeless and spent 33 days in jail simply for walking in a park.  In May 2014, Jeff Pendleton was hauled off to jail for walking along a public foot path in the park adjacent to the Nashua public library.

Jeff was arrested for criminal trespass in violation of a verbal “no trespass” order he received a month earlier.  This order banned him from the library and the adjacent park, including its walkways, green space, and benches.  His bail was $100 but he did not have the money so he had to spend the next 33 days in jail.  After his release, the ACLU-NH secured the dismissal of the criminal charge.

Parks are protected places under the First Amendment.  They are places for the public—the poor and affluent alike—to congregate and enjoy.  Jeff had every right to be in the walkway in that park.  Moreover, the verbal “no trespass” order violated his due process rights because it denied him the opportunity to challenge the order.

By letter in early November 2014, the ACLU-NH sought civil relief for these constitutional violations.  On March 13, 2015, the City of Nashua agreed to pay $15,000 to settle Jeff’s claims.

Cooperating Attorney: Lawrence Vogelman of Nixon, Vogelman, Barry, Slawsky & Simoneau, P.A.

Legal Documents: ACLU Letter; Settlement Agreement

 November 4, 2014  Tagged with:
Oct 312014

On October 31, 2014, the ACLU-NH filed a federal lawsuit on behalf of three New Hampshire voters—including one member of the New Hampshire House of Representatives—challenging RSA 659:35(I) on the grounds that it violates the right to free speech under the First Amendment.  This law, which became effective on September 1, 2014, bans a person from displaying a photograph of a marked ballot reflecting “how he or she has voted,” including on the Internet through social media platforms like Twitter, Facebook, and Instagram.  Now, willfully engaging in this form of political speech is a violation-level offense punishable by a fine of up to $1,000.  The law contains no exceptions.

RSA 659:35(I) violates the First Amendment by banning pure political speech on matters of public concern beyond the polling place (including in one’s home) that is not remotely related to the State’s purported interest in enacting the law—namely, addressing vote-buying and voter coercion.  Political speech is essential to a functioning democracy.  The First Amendment does not allow the State to, as it is doing here, broadly ban innocent political speech with the hope that such a sweeping ban will address underlying criminal conduct.

On November 12, 2014, the Plaintiffs filed a motion for a preliminary injunction asking the trial court to prevent enforcement of the law while this lawsuit is pending.  This Motion was consolidated with a hearing on the merits.  On March 27, 2015, the Plaintiffs filed a motion for summary judgment.

On August 11, 2015, the trial court struck down the law and unequivocally concluded that the law violates free speech rights. As the trial court held: “Because [the law] is vastly overinclusive and the Secretary [of State] has failed to demonstrate that less speech-restrictive alternatives will be ineffective to address the state’s concerns [regarding vote bribery and voter coercion], it cannot stand to the extent that it bars voters from disclosing images of their completed ballots.”

The State has appealed the decision to the First Circuit Court of Appeals in Boston.  On April 15, 2016, the ACLU-NH filed its brief before the First Circuit.

On September 28, 2016, the First Circuit agreed with the trial court and held that the law was unconstitutional.   As the First Circuit held: “The restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment …. Ballot selfies have taken on a special communicative value: they both express support for a candidate and communicate that the voter has in fact given his or her vote to that candidate.”  The Court added: “New Hampshire may not impose such a broad restriction on speech banning ballot selfies in order to combat an unsubstantiated and hypothetical danger.  We repeat the old adage: ‘a picture is worth a thousand words.’”

Cooperating Attorney: William E. Christie of Shaheen & Gordon, P.A.

Legal Documents: Pls.’ Amended Verified Complaint; Pls.’ Motion for a Preliminary Injunction; Pls.’ Motion for Summary Judgment; State’s Opposition; Pls.’ Reply; District Court Decision; State’s First Circuit Opening Brief; ACLU First Circuit Responsive Brief; State’s First Circuit Reply; Snapchat Amicus Brief; Reporters Committee Amicus Brief; First Amendment Coalition and Keene Sentinel Amicus Brief; First Circuit Decision; State’s Cert Petition; Rideout Opposition to Cert Petition

 October 31, 2014  Tagged with: ,
Sep 082014

The Education Tax Credit Program allows businesses to reduce their tax liability by receiving an 85 percent tax credit in exchange for donations made to K-12 scholarship organizations, which will pay for tuition at religious and other private schools.  Since there is no state oversight of the schools receiving funds, religious schools will be able to use the donations for religious instruction, indoctrination and religiously-based discrimination.  The New Hampshire Constitution specifically provides that “no person shall ever be compelled to pay towards the support of the schools of any sect or denomination” and that “no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.”  The Complaint challenging the constitutionality of this Program can be found here.

On June 17, 2013, the Strafford County Superior Court held that this tuition tax-credit program violates the New Hampshire Constitution.  The Court explained: “New Hampshire students, and their parents, certainly have the right to choose a religious education.  However, the government is under no obligation to fund ‘religious’ education.  Indeed the government is expressly forbidden from doing so by the very language of the New Hampshire Constitution.”  The Superior Court’s decision can be found here.

The Superior Court’s decision was appealed to the New Hampshire Supreme Court.  Our New Hampshire Supreme Court briefs can be found here and here.  On August 28, 2014, the New Hampshire Supreme Court declined to reach the merits of the case and held that the plaintiffs did not have standing to bring suit.  On September 8, 2014, the plaintiffs submitted a motion for rehearing or reconsideration, which was later denied.

In this case, the NHCLU is partnered with Americans United for Separation of Church and State and the ACLU.

Legal Documents:            Complaint; Superior Court Opinion; Opening Brief Before NH Supreme Court; Reply Brief Before NH Supreme Court; NH Supreme Court Decision; Motion for Rehearing or Reconsideration

 September 8, 2014
Aug 292014

On May 12, 2014, the NHCLU filed a “friend-of-the court” brief on behalf of itself, six other organizations, and four professors at the University of New Hampshire School of Law asking the New Hampshire Supreme Court to end this state’s cruel and unusual practice of sentencing juveniles to life in prison without the possibility of parole (“JLWOP”).

In the U.S. each year, children as young as 13 are sentenced to spend the rest of their lives in prison without any opportunity for release.  To date, approximately 2,570 children have been sentenced to JLWOP in the U.S.  Despite the global consensus that children cannot be held to the same standards of responsibility as adults and recognition that children are entitled to special protection and treatment, the U.S. continues to allow children to be treated and punished as adults.  The U.S. is the only country in the world that engages in this inhumane practice.  Unfortunately, this practice exists in New Hampshire, and there are currently four New Hampshire defendants who have received JLWOP sentences for crimes they committed when they were children.

In 2012, the U.S. Supreme Court in Miller v. Alabama, 567 U.S. __, 132 S. Ct. 2455 (2012), struck down state regimes (like the one in N.H.) that mandates a JLWOP sentence for children convicted of first-degree murder, concluding that this practice violates the Eighth Amendment’s prohibition against “cruel and unusual punishment.”  However, the U.S. Supreme Court in Miller stopped short of categorically finding all JLWOP sentences unconstitutional.

In our amicus brief, we argue two points.  First, we contend that the Miller decision applies retroactively to the four New Hampshire children who were sentenced to JLWOP prior to the issuance of the Miller decision.  Second, we argue that, as a categorical matter, JLWOP sentences violate Part I, Article 33 of the New Hampshire Constitution, which bans “cruel or unusual punishments.”

On August 29, 2014, the New Hampshire Supreme Court held that the Miller decision applies retroactively.

Legal Documents: NHCLU Amicus Brief; Supreme Court Decision

 August 29, 2014  Tagged with:
Aug 202014

On August 20, 2014, the New Hampshire Civil Liberties Union filed a lawsuit in federal court in Concord against the Town of Hudson on behalf of Jeffery Pendleton, a homeless man who resides in the Nashua/Hudson area.  The lawsuit seeks to end Hudson’s unconstitutional practice of detaining, harassing, threatening, dispersing, and citing panhandlers in violation of the First, Fourth, and Fourteenth Amendments to the United States Constitution.  Mr. Pendleton and other panhandlers have a constitutional right to peacefully panhandle in public places without fear of arrest, prosecution, retaliation, and interference by the police.

This lawsuit follows the receipt of documents from the Town of Hudson pursuant to NHCLU Right-to-Know records requests.  What these documents uncovered was disturbing.   From March 2011 to March 2014, at least 12 Hudson police officers in at least 18 separate incidents (13 of which took place from September 2013 onward) instructed panhandlers that panhandling was illegal or that a permit was required to panhandle.  These panhandlers were then told to be “on their way,” and at least two panhandlers – including Mr. Pendleton – were cited and directed to go to court.  However, there is no state or town law that makes panhandling in public places illegal or requires a permit for this form of expressive activity.   Hudson’s practices are also targeted at the poor and homeless, like Mr. Pendleton.  For example, while the Hudson police department has cited Mr. Pendleton for engaging in peaceful solicitation, the police department has decided to allow the Hudson fire department to engage in the same form of solicitation for charity in public places without any repercussions.

On August 27, 2014, the Court issued an agreed-upon injunction banning Hudson’s anti-panhandling practices while the case is being litigated.  On March 4, 2015, the Town of Hudson formally agreed to pay $37,500, be subject to a permanent consent order, and conduct further police training on the terms of the permanent consent order to settle the lawsuit.

Cooperating Attorney: Christopher Cole of Sheehan Phinney Bass + Green PA

Legal Documents:  Complaint; Agreed-upon Injunction; Settlement Agreement; Permanent Consent Order

 August 20, 2014  Tagged with:
Aug 082014

The NHCLU defended several protestors charged with violations of a curfew ordinance and criminal trespass when they set up a twenty-four hour occupation of Veteran’s Park in Manchester.  The NHCLU filed a Motion to Dismiss the charges, arguing that the application of the curfew and trespass laws to the peaceful protest violated the Defendants’ rights to free speech, assembly and revolution under the New Hampshire Constitution.  After a full day hearing, the trial court denied the motion.

Those protesters who were convicted of criminal trespass appealed their case to a jury, which found them guilty.

Those protesters who were impacted by the trial court’s denial of the motion to dismiss the curfew-violation charge — a charge which does not involve a jail sentence — have appealed to the New Hampshire Supreme Court.  The NHCLU’s appellant brief before the Supreme Court can be found here.

In a decision issued on August 8, 2014, the Supreme Court concluded that the criminal trespass convictions did not violate the First Amendment.

Cooperating Attorney: Lawrence Vogelman of Nixon, Raiche, Vogelman, Barry & Slawsky

Legal Documents:            NHCLU Appellant Brief; Supreme Court Decision

 August 8, 2014  Tagged with:
Jul 282014

On July 28, 2014, the ACLU-NH filed an amicus brief before the New Hampshire Supreme Court in the case City of Keene v. James Cleaveland, et al.  In this case, the City of Keene has brought civil claims against individuals who are engaging Keene parking enforcement officials in a non-threatening manner.  The City is also seeking an injunction prohibiting these individuals’ speech that is grossly overbroad and would suppress the ability of these individuals to engage parking enforcement officials peacefully.  As we explained in the brief, this speech is constitutionally protected, and the trial court correctly dismissed the City’s claims.

On June 9, 2015, in a victory for free speech rights, the New Hampshire Supreme Court affirmed the trial court’s decision dismissing the City’s civil causes of action.  The Court explained: “[T]he First Amendment shields the respondents from tort liability for the challenged conduct.  Accordingly, we conclude that the trial court correctly determined that enforcing the City’s tortious interference with contractual relations claim would violate the respondents’ First Amendment rights.”  Accordingly, the Court concluded: “Because we hold that the First Amendment bars the City from pursuing its claim for tortious interference with contractual relations, we also conclude that the First Amendment bars the City from pursuing its claim that the respondents are liable for conspiring to commit the very same tort.”  The Court remanded on the question of whether an equitable remedy was appropriate, but the Court made clear that it expressed “no opinion as to whether the  City’s allegations, if  proven, are sufficient to warrant the trial court’s exercise of its equitable power, or as to whether the particular injunctive relief requested by the City would violate the Federal or State Constitutions.”


Cooperating Attorney: Anthony Galdieri of Nixon Peabody LLP

Legal Documents: NHCLU Amicus Brief; Decision

 July 28, 2014  Tagged with:
Jul 242014

This suit challenges the New Hampshire law which would freeze out students and other mobile domiciliaries from federal and state elections.  The law would require those registering to vote to sign an affidavit agreeing that they are subject to the state’s residency laws—including laws mandating them to obtain a New Hampshire driver’s license and to register their vehicle in New Hampshire.  The registration form attempts to impose onerous and financially burdensome residency requirements as a condition for voting that conflict with the fact that one need only be “domiciled” in New Hampshire under current state law to vote.  The Plaintiffs’ Second Amended Petition is here.

On September 24, 2012, the Strafford County Superior Court preliminarily enjoined the usage of this affidavit language codified by statute, holding that this language “does not pass constitutional muster, and hinders educational efforts related to the election pertaining to qualifications for registering to vote.”  The Court added that the language advances a “confusing expression of the law to be considered by … those prospective voters in the position of the four student petitioners, that is, non-resident persons who otherwise qualify to vote and would not like to register and/or proceed to exercise their voting rights without feeling they are subjecting themselves … to residency law obligations.”  The Superior Court’s decision can be found here.

On March 14, 2014, the ACLU-NH filed a motion for summary judgment asking the Superior Court to issue a final, permanent declaratory judgment holding that this law is unconstitutional.  That motion can be found here.  On July 24, 2014, the Strafford County Superior Court issued an order striking down this law as unconstitutional.  In its decision, the court correctly called the added language “a confusing and unreasonable description of the law” that imposed a chilling effect on the right to vote of those domiciled here.  The State appealed this decision to the New Hampshire Supreme Court.

On May 15, 2015, the New Hampshire Supreme Court affirmed and struck down the law.  The Court concluded: “Because the challenged language is confusing and inaccurate, and because, as the trial court found, it could cause an otherwise qualified voter not to register to vote in New Hampshire, we hold that, as a matter of law, the burden it imposes upon the fundamental right to vote is unreasonable.”

Cooperating Attorneys: Alan J. Cronheim of Sisti Law Offices; William E. Christie and Benjamin Siracusa Hillman of Shaheen & Gordon, P.A.

Legal Documents:            Second Amended PetitionSuperior Court Decision; Motion for Summary Judgment;Permanent Injunction Decision; NH Supreme Court Brief; New Hampshire Supreme Court Decision

 July 24, 2014  Tagged with:
Jul 222014

On July 22, 2014, the ACLU-NH filed a lawsuit on behalf of the Libertarian Party challenging HB1542.  HB1542 is a new state law passed in 2014 that imposes onerous restrictions on third parties by compressing the time period for third parties to collect the number of signatures necessary to get on the ballot.  This law limits voter choice and stacks the deck against candidates who—like roughly 40% of Granite Staters—don’t belong to a major party.

HB1542 addresses the ability of a third party to gain access to the ballot as a recognized political party.  Gaining access to the ballot as a recognized party has real advantages, including the ability to run a slate of candidates and engage in pre-election organizing.  HB1542 states that, when a third party seeks to gain access to the ballot before an election by collecting certified signatures, those signatures “shall be signed and dated in the year of the election.”  In short, HB1542 prohibits third parties from collecting signatures before January 1 of the election year, and they will now only have 7 months to collect the necessary number of signatures (from January 1 to early August).  This compressed time frame will make the task of obtaining ballot access through the party-petitioning process far more difficult—if not impossible—for third parties.

As a Rhode Island federal court concluded in striking down an identical law imposing a January 1 start date, “[s]ociety is best served when political parties outside the two existing major parties play an active, ‘robust’ role in the entire campaign process—not simply appear on the final election ballot.”

On September 22, 2014, the State filed a motion to dismiss the Libertarian Party’s lawsuit.  On October 23, 2014, the Libertarian Party filed its objection to the State’s motion to dismiss.  On December 30, 2014, the State’s motion to dismiss was denied.

On May 6, 2015, the Libertarian Party filed its motion for summary seeking a permanent injunction barring enforcement of HB1542.  On August, 28, 2015, the federal district court upheld HB1542.

The Party appealed to the First Circuit Court of Appeals in Boston.  The Party filed its First Circuit brief brief on February 19, 2016.  On December 2, 2016, the First Circuit affirmed the district court’s decision.

Cooperating Attorneys: William E. Christie and Courtney Michalec Hart of Shaheen & Gordon, P.A.

Legal Documents:            Complaint; Libertarian Party’s Objection to State’s Motion to Dismiss; Decision Denying Motion to Dismiss; Motion for Summary Judgment; Reply Brief; District Court Decision; First Circuit Brief; First Circuit Reply; First Circuit Decision

 July 22, 2014  Tagged with: ,