The New
Jersey Libertarian Party's Preempted Ordinance Repeal Project (“the
Project”) seeks to get New Jersey municipalities to repeal loitering ordinances
that should have been--but were not--repealed when the New Jersey Code of
Criminal Justice was enacted in 1979.
The Project has successfully had loitering ordinances repealed in
Andover
Township (Sussex County)
Belmar
Borough (Monmouth County)
Butler
Borough (Morris County)
Delran
Township (Burlington County)
Elmer
Borough (Salem County)
Elmwood
Park Borough (Bergen County)
Flemington
Borough (Hunterdon County)
Guttenberg
Town (Hudson County)
Highland Park Borough
(Middlesex County)
Long
Branch City (Monmouth County)
Lyndhurst
Township (Bergen County)
Madison
Borough (Morris County)
Manasquan
Borough (Monmouth County)
Mansfield
Township (Burlington County)
Maplewood
Township (Essex County)
Millstone
Township (Monmouth County)
Netcong
Borough (Morris County)
Newton
Town (Sussex County)
Oldmans
Township (Salem County)
Perth
Amboy City (Middlesex County)
Pilesgrove
Township (Salem County)
Ramsey
Borough (Bergen County)
Wanaque
Borough (Passaic County)
West
Milford Township (Passaic County)
Westampton
Township (Burlington County)
Woodtown
Borough (Salem County)
Clicking on any of the links above will open a PDF
file of the repealed ordinance and information concerning the repeal.
Why oppose Loitering laws?
Some loitering ordinances prohibit people from “hanging
around” or “loafing” in public places.
Other ordinances prohibit “hanging around” of “loafing” in such a manner
as to “create or cause to be created a danger of a breach of the peace,” or to
“create any disturbance or annoyance to the comfort and repose of any
person.” The Libertarian Party opposes
loitering laws because they do not define a “real crime” (i.e. one where there
is an identifiable victim) but rather provides police with a mechanism to
arrest, harass or disperse persons whose presence they find objectionable.
Why are loitering laws illegal in New Jersey?
Fortunately, loitering ordinances are, except in a
few narrow cases, invalid in New Jersey because the Legislature, when enacting
the Criminal Code in 1979, specifically decided to not include those types of
prohibitions within the Code out of concern that “vagrancy and loitering
statutes have long suffered from constitutional infirmity and have been
criticized as inviting official harassment and discriminatory enforcement.” See
State
v. Crawley, 90 N.J. 241, 247 (1982).
It follows, therefore, that no municipality is allowed to locally
prohibit loitering and vagrancy when the Legislature has decided to
decriminalize them. Id. at 251.
My town’s loitering ordinance prohibits loitering
only if the loiterer is also doing something else, such as obstructing the free
passage of pedestrians. Why does the
Libertarian Party oppose my town’s loitering law?
When the Legislature passed N.J.S.A. 2C:33, which
is part of the Criminal Code enacted in 1979, it wisely recognized that laws
intending to control “street behavior” could also violate or chill a person’s
First Amendment rights to assemble, peacefully protest or speak out on public
issues.
So, the Legislature set up a very carefully drafted
set of laws that struck a balance between public assembly and expression rights
and the government’s need for peace and good order on the streets.
In so doing, the Legislature decided that its set
of laws had to be universal and invalidated any local own ordinances that also
attempted to regulate street behavior. No municipality, which is subordinate to
State, is permitted to strike a different balance between these competing
interests by passing an ordinance.
Your town’s ordinance prohibits loitering that
could “obstruct the free passage of pedestrians or vehicles.” This provision, in the hands of an
unscrupulous mayor or police chief, could be used as a pretext to prevent
peaceful citizens from assembling in front of a local government building to
protest against taxes or upon some other public issue. That’s the reason that this ordinance’s
statutory counterpart—N.J.S.A. 2C:33-7 (see Footnote1 below)—requires the police
to accommodate free expression and assembly rights. Under the statute, the police must first try to limit the size of
the crowd or move it to a different location.
And, in order to prove a violation of the statute, the prosecution must
prove that the obstruction was done “purposely or recklessly.” The ordinance, however, does not contain any
such protections. The ordinance simply
declares that it is per se illegal for a person to “loaf” around on a Township
sidewalk in a manner that “caus[es] or is likely to cause” an obstruction to
“the free passage of pedestrians or vehicles.”
Do you see how much more discretion the police have
under the ordinance as opposed to the statute?
Do you understand why giving the police this expansive discretion concerns
Libertarians and others who seek to safeguard citizens’ free speech and
assembly rights?
For more information on this topic, see State
v. Paserchia, 356 N.J. Super. 461
(App.Div.2003
Do towns readily repeal their loitering ordinances
when asked?
Unfortunately, many New Jersey municipalities have
kept their pre-1979 loitering, vagrancy, “peace and good order” and similar ordinances
on the books despite knowing (or at least they should know) that they
are invalid. Getting municipalities to
repeal these invalid ordinances is often not as easy and straightforward as it
may appear. The Project has found that elected
municipal officials sometimes know, or at least suspect, that some of their
ordinances are invalid but are afraid to question them lest they be regarded as
“soft on crime.” Or, perhaps, more
insidiously, they wish to keep these ordinance on the books so that the local
police can use them to harass those who have committed no actual crime, but
who, by their very presence, cause the police or other people to feel
uneasy.
Are there other reasons that loitering ordinances
ought to be repealed?
In West Milford, we found that the municipal court
was allowing defendants to plead “guilty” to the preempted loitering ordinance
instead of facing trial on statutory crimes.
This plea deal benefits the defendant because a loitering conviction,
unlike a statutory offense, is not recorded on his or her permanent criminal
record in Trenton. All the defendant
needs to do is plead guilty and pay a fine—often several hundreds of
dollars—into the Township’s treasury.
The arrangement also benefits the court because
defendants who face the more serious consequences related to statutory
offenses, e.g. imprisonment, community service, motor vehicle points, getting a
criminal record, etc., often demand trials.
Since trials are expensive and time consuming, allowing defendants to avoid trials by paying large sums of money
is an attractive alternative to holding trials for defendants on the charged
offenses.
The loser, however, is justice.
Suppose, for example, that a person is charged with
“simple assault” on another person in violation of N.J.S.A. 2C:12-1. For a first offense of this charge, a
defendant enjoys a “presumption of non-incarceration,” meaning that the
defendant typically will pay a fine and not serve time in jail. (Reference: N.J.S.A. 2C:44-1(e) and State
v. LeSane, 227 N.J.Super. 276 (Law Div.1987)) However, on a second assault
conviction, that presumption disappears and the defendant is more likely to be
incarcerated. This is how it should
be—people who repeatedly commit violent acts against others should be severely
punished.
But, if a municipal prosecutor allows an assault
defendant to plead guilty to a preempted municipal ordinance violation, no
assault conviction is recorded, and the defendant still gets to enjoy the
“presumption of non-incarceration” the next time he or she assaults someone.
Isn’t it against the rules for a prosecutor to let
a violent offender plead guilty to a non-violent offense, such as loitering?
This system of downgrading offenses was severely
limited by a 1998 Directive issued by then Attorney General Peter Verniero.
(Download the Directive here). Unfortunately, some courts--the West Milford
Court is one example—still allowed defendants to plead guilty to loitering
offenses several years after the Directive was issued.
For more information, please contact the Project’s
Chairman John Paff.
Footnote1:
N.J.S.A.
2C:33-7 states: “Obstructing Highways and Other Public Passages. a. A
person, who, having no legal privilege to do so, purposely or recklessly
obstructs any highway or other public passage whether alone or with others,
commits a petty disorderly persons offense. "Obstructs" means renders
impassable without unreasonable inconvenience or hazard. No person shall be
deemed guilty of recklessly obstructing in violation of this subsection solely
because of a gathering of persons to hear him speak or otherwise communicate,
or solely because of being a member of such a gathering.
b. A
person in a gathering commits a petty disorderly persons offense if he refuses
to obey a reasonable official request or order to move:
(1)
To prevent obstruction of a highway or other public passage; or
(2) To
maintain public safety by dispersing those gathered in dangerous proximity to a
fire or other hazard.
An
order to move, addressed to a person whose speech or other lawful behavior
attracts an obstructing audience, shall not be deemed reasonable if the obstruction
can be readily remedied by police control of the size or location of the
gathering.”