On Aug. 3, U.S. District Court for the District of New Hampshire Judge Paul Barbadoro heard a lawsuit challenging the state’s anti-loitering and anti-prowling law.
The case, which seeks class action status, was filed by the American Civil Liberties Union of New Hampshire in September 2025 on behalf of Robert Clark, who was unhoused when he was detained and threatened arrest by police officers in Concord, N.H., for stopping outside a closed storefront in 2025, according to NHPR.
The law — RSA 644:6, “Loitering or Prowling” — criminalizes “knowingly” appearing at a “place, or at a time, under circumstances that warrant alarm for the safety of persons or property in the vicinity.” According to the N.H. ACLU’s press release, the lawsuit followed a two-year N.H. ACLU investigation.
The state, which is represented by N.H. assistant attorney general Sam Gonyea, is arguing that because Clark has had housing since February of this year, he has “no standing.” Barbadoro has not ruled whether Clark can bring the case.
ACLU legal director Gilles Bissonnette, who is representing Clark, said in an interview that the “fundamental problem with language like” that of the law is that it is “broad and arbitrary, and leaves decisions about stopping individuals and prosecuting them to the arbitrary discretion of the police.”
Laws such as this one are “deeply problematic” because they “leave arrest decisions to the subjective determination of police,” he added.
“People in marginalized community groups can become the victim of police enforcement more than other individuals that would not necessarily be part of marginalized community groups,” Bissonnette explained.
He added that in New Hampshire, the N.H. ACLU found in their investigation that the law unfairly “target[s] unhoused individuals” and is arguing to the court that it violates the Fourth and Fourteenth Amendments, including through being “unconstitutionally vague.”
“It allows individuals to be arrested, charged and convicted for an offense that’s not even tantamount to an actual crime, because it allows individuals to be convicted simply for engaging in behaviors ‘under circumstances that warrant alarm,” a phrase which does not always mean the accused is engaging in criminal behavior, Bissonnette said.
“When you have a statute like this that penalizes individuals who may not even be engaging in actual criminal behavior, you have a problem because when people are arrested, there must be probable cause of criminal behavior,” he explained.
He said that the ACLU of New Hampshire filed a class-action motion because they wanted to “ensure that complete relief” will be delivered to everyone affected by the law.
“We thought it was essential that whatever relief our client gets applies to everyone in the state, in order to ensure that this law, which we think is unconstitutional, is not used and enforced anywhere else in the state.”
New Hampshire, whose state legislature passed the law in 1971, is one of only five states with a similar loitering law, although “many” cities and towns do as well, Bissonnette added. This case is the first time a court has addressed a challenge to the law arguing that it should be completely repealed.
Capt. Mike Schibuola on behalf of the Hanover Police Department wrote in an email statement to The Dartmouth that over the past five years, the department has charged two people under the Loitering and Prowling law — separate incidents both in September 2021. He added that the two people were “suspected ‘window peepers’ and were seen concealing themselves by 3rd party witnesses who then called police.”
“In one case the suspect fled from a person who had seen them hiding and then ran from Hanover officers. The other suspect involved in suspected window peeping was a registered sex offender out of Vermont,” Schibuola wrote.
“The law mandates that law enforcement must provide an opportunity to allow the suspect to dispel any cause for alarm,” he wrote. “So with regard to at least Hanover the law has been productive in keeping our community safe.”
N.H. State Rep. Terry Roy, R-Rockingham, who chairs the N.H. House Criminal Justice and Public Safety Committee, wrote in an email statement to The Dartmouth that achieving “middle ground” between “the right to live” without fear of “threat of criminal actions” and “overbearing government intrusion” is “a challenge.” Citizens “have the right to live their lives free from the threat of criminal actions against their persons and property.” “I am interested to see where the court comes down on the laws as they currently exist and my colleagues and I are prepared to initiate whatever legislative fix is ultimately deemed necessary,” Roy wrote.
He added that while he does “not always agree with the ACLU,” he “appreciate[s] their mission” and is “glad that such organizations exist.”
“The NRA [National Rifle Association] and the ACLU keep America free and our ability to check our government exists only because we have a Constitution that demands it,” he explained. “We must all protect that to the best of our abilities. Discussions about changing or abolishing it [the Constitution] must never be allowed to go unanswered.”
The New Hampshire Department of Justice did not respond to a request for comment.
Eliza Dorton '29 is a reporter from Washington, D.C. and is studying English and public policy. Outside the classroom, she enjoys reading and going on walks.
