July 29, 2004

NEWARK, NJ — A Superior Court Judge today ruled that New Jersey municipalities may not restrict use of their parks to town residents.

The ruling, which is the first of its kind in New Jersey, and one of the first in the country, is the result of a lawsuit filed by the American Civil Liberties Union of New Jersey in cooperation with attorneys from the Constitutional Litigation Clinic at Rutgers Law School in Newark.

The ACLU and the Constitutional Litigation Clinic challenged a Borough of Haledon ordinance that restricts use of the public parks to town residents and their accompanied guests. Violation of the ordinance carries a $500 fine and/or a 30-day jail sentence. Many towns throughout New Jersey have similar laws.

Judge Margaret M. McVeigh, a Superior Court judge in Paterson, ruled that the ordinance violated the First and Fourth Amendment rights of non-resident park users.

The Court held that parks serve a unique role in American society, allowing newcomers to become part of the community. "At one time all of us were outsiders," Judge McVeigh said. The way we became part of the community was to watch, listen, learn, and "impart a little bit of ourselves in the process."

Judge McVeigh also found that police had no constitutional means of ascertaining the residency status of a park user. "Residents come in all shapes, sizes, and colors," she said. The ordinance gives "absolutely no neutral criteria to ensure that the governmental intrusion is not the product of the detaining personnel's unfettered discretion," and therefore violates the Fourth Amendment.

"This decision comes at a particularly apt time," said Lenora M. Lapidus, Legal Director of the ACLU of New Jersey. "It would be ironic if, just as New Jersey won bragging rights to Ellis Island, the immigrant gateway to America, the state courts sanctioned the balkanization of New Jersey's towns, allowing them to turn away outsiders. Thankfully that didn't happen today."

The ACLU brought suit on behalf of Hwilda Barkawi, a native of Syria and a resident of Prospect Park, who was arrested and prosecuted for using Haledon's Roe Field Park in 1993, in violation of an earlier version of the town ordinance.

The ACLU and the Constitutional Litigation Clinic represented Barkawi in that criminal case, which led to an appellate court decision invalidating the original ordinance because it did not adequately inform the public that infractions would be punished by penal sanctions. The Borough reenacted the ordinance in 1995, making it clear that violators would be subject to punishment.

Barkawi argued that the revised ordinance violated non-residents' constitutional equal protection and free speech rights as well as their right to be free from unreasonable searches and seizures.

"The Haledon ordinance invited law enforcement officials to ask for identification for no reason, or for impermissible reasons, such as race or ethnicity," said Penny Venetis, the Rutgers professor who argued the case. "Our constitution does not permit police interrogation on either basis."

Barkawi also argued that the ordinance violated New Jersey's public policy against discrimination against non-residents as well as the common law public trust doctrine, which holds that New Jersey's public parks and beaches are held in trust for all residents of the state to enjoy.

"This suit is an important step in fighting the growing national trend of sealing off traditionally public spaces," Venetis added. "This practice is particularly pronounced in suburban communities that want to exclude their less affluent neighbors. We believe that public spaces are for the public at large, not just local residents."

The case is Barkawi v. Borough of Haledon, Docket No. 1-6997-96.