Robert Clark was walking through Concord around 1 a.m. when he stopped outside a closed convenience store on South Main Street to check an ashtray for a leftover cigarette.
Two Concord police officers on bicycles detained him, ran his name through their system, and warned him that standing outside a closed business could get him arrested for loitering.
They told him to leave, then watched until he did.
It’s the kind of encounter Clark, who was 37 and unhoused at the time, described in a lawsuit filed in the U.S. District Court for the District of New Hampshire in September 2025. He said he faced similar treatment repeatedly during his years being homeless in Concord while police enforced the state’s loitering law.
During Monday’s hearing, Judge Paul Barbadoro considered Clark’s federal case against New Hampshire Attorney General John Formella.
The lawsuit states that the loitering statute is unconstitutionally vague and violates the Fourth and Fourteenth Amendments by denying due process and allowing the government to conduct unreasonable searches and seizures, and that it disproportionately targets the homeless population.
The law states: “A person commits a violation if he knowingly appears at a place, or at a time, under circumstances that warrant alarm for the safety of persons or property in the vicinity.”
Reasons for alarm can be running from police, concealing their identity, possession of tools that could be used in a burglary, or inspecting the entrances to a building.
The law also has a caveat.
“Prior to any arrest under this section, unless flight or other circumstances make it impossible, a law enforcement official shall afford the actor the opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and give an account for his presence and conduct,” the law states. “Failure to identify or account for oneself, absent other circumstances, however, shall not be grounds for arrest.”
Clark is represented by attorneys from the American Civil Liberties Union of New Hampshire.
“This law has a compounding effect, because it enables police to stop and do pat-down searches for weapons. It’s used to kind of hunt and fish for criminal activity that maybe suspected,” Gilles Bissonnette, ACLU’s legal director and Clark’s attorney, said in an interview. “What we’re dealing with and what laws like this do is just create overpolicing of this community.”
The hearing opened with Sam Gonyea, assistant attorney general representing Formella, arguing that Clark lacks standing to sue because he has no active criminal charges pending against him.
Gonyea pushed back on the ACLU’s characterization of police enforcement patterns, disputing the claim that the law is primarily enforced against homeless people.
Throughout the proceedings, Clark, now 38, sat in the back corner of the gallery, watching quietly with a pen and paper in hand.
Clark has been arrested and charged at least twice under the loitering law since becoming homeless in Concord in 2012. In one instance, he was suspected of smoking fentanyl in a parking lot, but he was arrested under the loitering statute rather than a drug charge, according to court records. Clark is also on the sex offender registry for possessing child pornography in 2009.
Clark has since found housing in Franklin, N.H., and has been living there for seven months.
Judge Barbadoro heard arguments and has not yet ruled on whether Clark has standing to bring the case.
The broader question before the court is whether the law’s language, left open to interpretation by individual officers, unfairly targets the state’s homeless population and ends up criminalizing innocent, everyday behavior.
“I agree that I face a lower chance of facing this statute than the homeless population,” said Barbadoro.
In court, Barbadoro asked Gonyea directly about the state’s interpretation of the phrase “warrant alarm” in the state loitering law.
Gonyea responded that that’s equivalent to “reasonable suspicion.” Barbadoro said if that’s the state’s interpretation, “you have a very serious Fourth Amendment problem.”
Police can arrest people only on probable cause, which is a higher legal standard than reasonable suspicion.
Bissonnette said the state’s argument that Clark lacks standing because he now has housing shouldn’t hold up. He still faces the same threat of enforcement each time he returns to Concord.
Statewide pattern
The ACLU sees the issue as extending far beyond Clark’s individual case and is now seeking to have the lawsuit certified as a class action. Following a two-year investigation using court data, the organization found that police in New Hampshire have repeatedly used the law to harass and punish people who have no permanent housing.
“It creates a cycle where this community is continually overpoliced,” said Bissonnette. “If they try to evade police because they don’t want to be overpoliced, that then becomes a basis for a stop and a potential citation and maybe even an arrest under this law.”
Since the homeless population is more concentrated in urban areas, where access to resources and services is greater, loitering law arrests occurred more extensively in cities than towns.
Between July 1, 2021 and June 30, 2023, the 6th Circuit Court District Division dismissed 23 loitering cases brought by the Concord Police Department.
Ten of those cases, or 43%, involved unhoused individuals, according to the ACLU.
Between July 1, 2021 and December 31, 2024, the circuit court disposed of 89 cases in which the Manchester Police Department charged a loitering violation. Of those 89 cases, at least 50, or 56%, involved the city’s homeless.
Bissonnette called New Hampshire’s loitering law an “outlier.” The law has been in effect since 1971, but the Granite State is one of just five, along with Delaware, Florida, Arkansas and Georgia, that still use language dating back to the 1960s.
“This is an incredibly vague law that has massive consequences for individuals who were arrested, who were hauled into court, who were subject to searches as a result,” Bissonnette said. “So that makes this a lawsuit in our view all the more important.”
