Keene, n.h.
On Dec. 23, the state’s highest court upheld an earlier ruling that the city’s request for an injunction against the Robin Hooders — who followed Keene parking enforcement officers and put coins in expired meters — is unconstitutional, violating their First Amendment rights.
It’s another — and perhaps final — blow for a city-led legal fight that has spanned years. The city has long argued the Robin Hooders’ actions constitute harassment.
According to city officials, the actions include verbal abuse of officers throughout their shifts, behavior that over the years led one officer to quit and another to seek counseling.
In 2013, the city of Keene brought a civil lawsuit against six of the protesters, seeking to impose a buffer zone around the parking officers that would prevent the Robin Hooders from approaching.
That suit was eventually narrowed to two protesters, Ian Freeman and Garret Ean, after the other four were found to have little to no involvement in the alleged harassment. After the city initially proposed a 50-foot gap between parking officers and protesters, the proposed buffer zone eventually was scaled back to 10 feet.
But in a 2015 ruling, Cheshire County Superior Court Judge John C. Kissinger Jr. found that the buffer zones failed to adequately balance the First Amendment rights of the protesters against the city’s interest in protecting its employees.
Kissinger held that a buffer zone injunction is too severe and categorical, and that other, more targeted legal remedies could be sought by the city against the alleged harassment instead.
The Robin Hooders have previously asked in court why Keene officials haven’t pursued a city ordinance or criminal charges against them.
Kissinger also found that much of the alleged behavior took place before October 2013, when the city first filed the lawsuit, and that in the years since the legal proceedings, the practice had died down.
Freeman, whose behavior allegedly had been more aggressive, had largely stopped the practice; Ean was continuing the protests but was “generally non-combative and unobtrusive,” Kissinger wrote in his ruling.
This month, the state Supreme Court upheld Kissinger’s ruling.
“Based upon the factual record before it, (Cheshire County Superior Court) exercised its equitable discretion to deny the proposed injunction,” according to a copy of the Supreme Court judgment.
Rob Dietel, an attorney with Concord’s Gallagher, Callahan & Gartrell and one of two lawyers representing the city throughout the proceedings, disagreed with Kissinger’s approach.
“We felt consistently that the court’s balancing of the facts here doesn’t account for the day-to-day experience of the parking enforcement officers,” he said earlier this week, citing the harassment allegations.
Dietel also said the injunctive relief the city had proposed had been proportional and appropriate.
“The city proposed a very common-sense solution,” he said, speaking on the proposed injunctions against Freeman and Ean. “What’s ironic about this case is that the city proposed the most narrow solution, and the response of the Robin Hooders has persistently been to pursue broader measures like an ordinance or criminal charges.”
But Jon Meyer, an attorney for Manchester-based Backus, Meyer & Branch LLP who has represented the Robin Hooders since the beginning, said he was happy with the decision.
He took the case pro bono out of a belief that the injunctions sought by the city were unprecedented and would have a chilling effect on free speech and the right to protest, he said.
“This is the only case that I know about where a public body has sought a buffer zone creating a spatial restriction against those engaging in political protest — completely unprecedented,” he said. “If the city had been successful, it would have been a first.”
Meyer also argued that while there may have been emotional stress on the part of the city employees, the Robin Hooders had never put the employees at physical risk.
“The city claimed that there was a safety interest here in terms of traffic safety, employee safety and so on, but our position, based on the evidence, is that there was no real safety issue here,” he said.
It’s unclear whether the city will seek to advance an appeal of the case to a federal court.
A representative for the mayor’s office on Wednesday said the office has not had a chance to review the four-page court order and could not comment until it had been publicly posted on the state Supreme Court website.
The court generally uploads its decisions and orders at the end of every month, although attorneys for both parties receive copies of the decisions beforehand, according to a court spokeswoman.