An unhoused man in Concord is suing New Hampshire over its loitering law, claiming it criminalizes innocent behavior, gives police officers too much discretion and unfairly targets the state’s homeless population.
Robert Clark, 37, has been unhoused since 2012 and sleeps in the woods of Concord. He’s been arrested twice under the law, which bans “loitering and prowling,” and he leads the class-action lawsuit that’s been brought by the American Civil Liberties Union of New Hampshire.
The lawsuit argues that this section of the law, which bans people from knowingly appearing somewhere under circumstances “that warrant alarm for the safety of persons or property in the vicinity,” discriminates against and allows police to “harass and arbitrarily punish unhoused people.”
“Police shouldn’t have the power to harass and arrest any person for any reason, but New Hampshire’s loitering law allows them to do just that,” said Gilles Bissonnette, the ACLU’s legal director and Clark’s attorney. “Criminalizing unhoused individuals in our communities for simply existing in public spaces does nothing to solve the root causes of homelessness or create real solutions to our state’s housing crisis.”
Many of the people arrested on loitering and prowling charges are unhoused, according to an investigation by the ACLU.
In Concord, for example, during a two-year period from the summer of 2021 to 2023, a circuit court threw out 23 loitering cases brought by the Concord Police Department. Ten of those involved unhoused people, according to the ACLU.
The lawsuit, filed in the federal district court of New Hampshire, alleges that the state law is unconstitutionally vague and violates the Fourth and Fourteenth Amendments, which outline the right to due process and to not be subject to “unreasonable searches and seizures” by the government.
It’s too easy for people to accidentally violate the law while engaging in unavoidable, harmless conduct, the lawsuit said, and the law gives too much discretion to police officers over what constitutes cause for alarm.
Concord has repeatedly cleared encampments throughout the city over the past several years; most recently in August, city police swept Healy Park, displacing 30 people.
In New Hampshire, more than 2,400 people experienced homelessness in 2023, according to a report from the Coalition to End Homelessness.