City will press on with street cam plan; ACLU says doing so is ‘committing crime’

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“Eye in the Sky” street cam was temporarily installed on Elm Street in Dec. 2018. File Photo/Carol Robidoux

MANCHESTER, NH — A Hillsborough County Superior Court judge has refused to issue an injunction preventing the city from installing surveillance cameras on Elm Street that will send a live feed to police department dispatchers who will view it monitor it 24-hours-a-day.

Judge Tina L. Nadeau, in a nine-page order issued Monday,  also ruled that two of the four people who sought the injunction — Carla Gericke, a Manchester activist who led a protest against the cameras  last April outside City Hall and John “Brinck” Slattery, a city resident who is communications director of a technology start-up company in the city — have standing to bring suit because they own property in the city and are taxpayers.

The other two petitioners, former New Hampshire State Representative Neal Kurk of Weare, who drafted the law in 2006,  and Holly Beene Seal, who resides in the city, are not city taxpayers and, therefore, the judge ruled, do not have standing to bring a lawsuit.  Their cases were dismissed.

While an injunction was not issued, Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire who represented the petitioners, said the case will proceed to trial.

“In today’s decision, the court states that the city will be committing a crime when its planned surveillance cameras inevitably capture motorists’ identifying information. Thus, if implemented, the cameras will inevitably expose the city to criminal liability,”  Bissonnette said.  “While we are disappointed with the court’s decision to not issue an order immediately stopping the placement of surveillance cameras on Elm Street, we urge the city to cease its plan to install these surveillance cameras that, as the court noted, will inevitably cause the city to commit a crime. The department should heed this warning from the court. In the meantime, today’s decision is only preliminary, and the case will proceed.”

Bissonnette pointed to Nadeau’s order in which she said the court “agrees with petitioners that the simple act of a government employee recognizing a vehicle or its occupants, without taking additional steps such as running a license plate through dispatch, constitutes a violation of the statute as written.  The court further agrees that it is virtually inevitable that in reviewing the footage generated by the cameras, a government actor will, given enough time, recognize someone in a car on Elm Street even if by accident”— an act which is a crime under the statute, according to the ACLU-NH.

The judge also said, however, that the surveillance cameras capturing identifying information about the petitioners’ vehicles as they drive along Elm Street is not illegal.   It would only become illegal if a dispatcher or other government employee recognized the occupants.

A quirk in the law makes it legal for the public, under Right-to-Know, to view the footage and recognize individuals on it and illegal for police,  according to the court order.

Mayor Joyce Craig was pleased with the ruling issued Monday.

“Through modern approaches to fighting crime, the Manchester Police Department’s efforts are making our city a better and safer place,” she said.  “The security cameras offer our police department yet another tool to increase public safety downtown and throughout the city.”

The law at issue was passed by the New Hampshire Legislature in 2006.  

The judge noted that the statute says, in part, “surveillance” means the act of determining the ownership of motor vehicle or the identity of motor vehicle’s occupants on the public ways of the state or its political subdivisions through the use of camera that by itself or in conjunction with other devices or information can be used to determine the ownership of motor vehicle or the identity of motor vehicle’s occupants. ll. Neither the state of New Hampshire nor its political subdivisions shall engage in surveillance on any public ways of the state or its political subdivisions. V. Any person violating the provisions of this section shall be guilty of violation if natural person, or guilty of misdemeanor if any other person.”

Police obtained approval from the Board of Mayor and Alderman to install the highly sophisticated video cameras, which cost about $14,500 in the area of City Hall.

Bissonette, at a July hearing, argued that that violates the privacy rights of people inside motor vehicles whose images would be captured along with the vehicles’ license plates which, under state law, is prohibited.

Peter Chiesa, a deputy Manchester city solicitor, said the city has no intention to record motorists.  The cameras would be pointed at storefronts and sidewalks, where there is no expectation of privacy.

Police plan to set up three permanent cameras near City Hall looking north and south on Elm Street with a live feed to dispatchers who will monitor them 24 hours a day, seven days a week.  

Chief Carlo Capano told the aldermen the recordings would be kept for 14 days and be used to help police investigate incidents such as lewdness and drug use along Elm Street.  He said there will be no facial recognition software and no license plate readers in use.

According to court documents, the city wants to buy the cameras, which can zoom in for close-ups and do surveillance in total darkness, for $14,424 from PELMAC Industries.