Alderman looks to change rule he says 'handcuffs' police efforts to move homeless off public property

Jul. 30—A Manchester alderman is asking fellow board members to eliminate language from a city ordinance he believes hinders efforts by local police to remove homeless individuals from public property.

Alderman at Large Joe Kelly Levasseur says Manchester city ordinance 130.13 (A), which prohibits camping on public property without advance written permission, never should have been amended to say police will enforce the prohibition "only when the individual is on public property and there is an available overnight shelter."

"We need to stop handcuffing our police with respect to removing vagrants from public property," Levaseur said. "We never should have added this language to our own ordinance. I am hoping we can now fix this mistake."

Manchester Police Chief Allen Aldenberg said Sunday he supports the idea behind Levaseur's request.

Levasseur is asking aldermen to strike the verbiage "and there is an available overnight shelter" and related language from the ordinance so it simply reads, "The Manchester Police shall enforce this camping section only when the individual is on public property."

"It would make the job of the Manchester police a lot easier," said Aldenberg. "A lot of times when there is a bed and other services available and this is pointed out to people, they don't take advantage of it."

Levasseur's request goes before the Aldermanic Committee on Public Safety, Health & Traffic at 5:30 p.m. Monday at City Hall

Levasseur says there is already a state statute on the books, 236:58 Camping Restricted, that says, "No person shall pitch a tent or place or erect any other camping device or sleep on the ground within the public right-of-way or on public property unless permission is received from the governing board of the governmental authority having jurisdiction over such public right-of-way or property."

"A woman with two kids put up a tent at city hall last month," Levasseur said. "When they were removing her she cited a city ordinance that states the city cannot do so unless there is a bed available. I learned that our police officers, under this ordinance cannot hand out citations, for public camping, if no beds are available."

Aldenberg said when and if citations are issued, "most" fines are never paid.

The city ordinance was amended in 2021 on advice from the city solicitor's office, to help protect the city from lawsuits and in response to a 2018 ruling by the Ninth Circuit Court of Appeals in Martin v. City of Boise, Levasseur said.

In that ruling, the court determined a city cannot charge someone with a crime or give them a ticket for sleeping in a public space if there's a lack of shelter beds — in effect, if there's nowhere else for them to go.

The judges ruled charging someone with a crime for sleeping outside when they have no other choice is a violation of the Eighth Amendment, and qualifies as cruel and unusual punishment.

Since that ruling, Martin v. Boise has been referenced in almost every legal challenge to camping bans.

"That case (Martin v. Boise) has no bearing on our own federal district, or this state and city," Levasseur said. "If the ACLU wants to fight us on this, then we need to fight back to stop people from camping in public places and help our officers do their jobs."

In 2020, state officials cited NH RSA 236:58 Camping Restricted to have homeless campers removed from the Hillsborough County Superior Court grounds in Manchester.

Signs were posted warning campers they had 10 days to vacate the lawns outside the courthouse; after that, state police oversaw the clearing of dozens of people from the grounds.

In January, Manchester officials moved ahead with efforts to evict residents of a sidewalk homeless encampment along Manchester and Pine streets after a Hillsborough County Superior Court judge ruling cleared the way.

A request for a temporary restraining order blocking the city's plan was brought by ACLU-NH, an encampment resident and a homeless advocate.

Judge John Kissinger ruled in favor of the city, stating that restraining orders, whether temporary or permanent, are emergency measures that should not be applied "unless there is an immediate danger of irreparable harm" to the parties seeking relief.

The judge cited the city ordinance prohibiting camping on public property without advance written permission and allows police to disband an illegal encampment when there is available overnight shelter.

"Considering the grave risks to public health and safety posed by the ongoing presence of the encampment on public sidewalks in downtown Manchester and the availability of safe alternatives for the people living in the encampment, a temporary restraining order is not justified," Judge Kissinger wrote in the decision.