Photo Credit. A no loitering, no soliciting, no panhandling sign in a shopping center in Fortuna, California by Ellin Beltz https://commons.wikimedia.org/wiki/File:No_Loitering_Fortuna.jpg Licensed under CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0/ No changes were made.

Overview

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Project”) seeks to get New Jersey municipalities to repeal loitering ordinances that should have been–but were not–repealed when the New Jersey Code of Criminal Justice was enacted in 1979. The Project has successfully had loitering ordinances repealed in

Alloway Township (Salem County)
Andover Township (Sussex County)
Belleville Township (Essex County)
Belmar Borough (Monmouth County)
Bernardsville Borough (Somerset County)
Bogota Borough (Bergen County)
Butler Borough (Morris County)
Delran Township (Burlington County)
Edgewater Park Township (Burlington County)
Elmer Borough (Salem County)
Elmwood Park Borough (Bergen County)
Flemington Borough (Hunterdon County)
Franklin Borough (Sussex County)
Guttenberg Town (Hudson County)
Highland Park Borough (Middlesex County)
Highlands Borough (Monmouth 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)
Mount Ephraim Borough (Camden 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)
Secaucus Town (Hudson County)
Tabernacle Township (Burlington County)
Wanaque Borough (Passaic County)
Washington Township (Warren County)
West Milford Township (Passaic County)
West New York Town (Hudson County)
Westampton Township (Burlington County)
Winslow Township (Camden County)
Woodstown Borough (Salem County)
Woolwich Township (Gloucester 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Clicking on any of the links above will open a PDF file of the repealed ordinance and information concerning the repeal.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.

Suppose that 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.” Municipal ordinances, however, generally do not contain any such protections. Take, for example, the Butler Borough ordinance, now repealed, that simply declared that it is per se illegal for a person to “loiter . . . in such a manner as to obstruct 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 why 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 along with other, more recent implementing memos here). Unfortunately, some courts still allowed defendants to plead guilty to loitering offenses several years after the Directive was issued.

For an example of a municipal court that routine allows such downgrades, see my article on the Cumberland Salem Joint Municipal Court.

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.”