ACLU-NJ Defends NJ Man Ticketed For Flying Trump Flags

April 21, 2016
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ACLU-NJ Defends NJ Man Ticketed For Flying Trump Flags

West Long Branch man was ticketed under unconstitutional ordinance for flying flags that said “Trump” and “Make America Great Again” more than 30 days before election

The ACLU of New Jersey and Eric D. Sherman, a partner with New York-based law firm Pryor Cashman, have teamed up to defend the rights of a man who was ticketed under an unconstitutional West Long Branch ordinance for flying flags supporting Donald Trump.

Joseph Hornick was cited under a policy that forbids the display of political signs until 30 days before an election. Hornick’s flags read, “Trump – Make America Great Again!”

“I am a proud, passionate Donald Trump supporter, and I would be willing to pay any fine in exchange for my free speech, or even serve jail time if it comes to that – but as an American, I shouldn’t have to pay that kind of price for expressing my beliefs,” said Joseph Hornick, a longtime West Long Branch resident. “I shouldn’t be punished for exercising my constitutional right to free speech. I’m not breaking the law by flying my Trump flags; rather, the borough is breaking the law by having this unconstitutional ordinance on the books.”

“My Trump flags are not coming down. And now, I’m even more determined to keep them flying,” Hornick added.

West Long Branch, in Monmouth County, first ticketed Hornick on March 25 for flying his Trump flags after Hornick had communicated with the police department about theft and vandalism of his banners. When police officers arrived, they cited Hornick under an ordinance restricting when political signs can be displayed. Generally, the First Amendment does not allow blanket bans on certain types of speech, even for limited durations, especially when it’s based on content.

“There’s no ordinance that can overrule the Constitution,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero. “It doesn’t matter whether it’s a lawn sign or a flag – you have the right to express your political beliefs every day of the year, no matter how close it is to Election Day. West Long Branch needs to realize that unless it takes this policy off the books, it’s violating the Constitution.”

New Jersey holds its primary election for the presidential nomination on June 7, which means that West Long Branch’s unconstitutional policy would ban the display of political signs until May 9. Violating the ordinance, according to the town, could carry a $2,000 fine or 90 days in jail.

“Joe Hornick has every right to fly his Trump flags, and West Long Branch has every responsibility to let him,” said attorney Eric D. Sherman, who represents Hornick. “We should not let stand those laws that restrict free speech, especially political speech in an election year. Such laws violate the Constitution and offend our notions of what it means to be an American.”

Hornick has a municipal court appearance that is now scheduled for May 18.

“Year after year, we are informed of unlawful sign restrictions, and we need to threaten suit to get towns to act,” said ACLU-NJ Legal Director Ed Barocas. “Towns throughout New Jersey need to review their sign ordinances to make sure they don’t include unlawful restrictions. It is time to make our ordinances constitutional again.”

The ACLU-NJ has successfully challenged restrictions on the timing of political signs in the past, including through the representation of a Ron Paul supporter who was prohibited from displaying his sign by the Borough of Hawthorne, in Passaic County, in 2008.

Student’s Political Tweets Not Bullying, School Officials Rule

March 8, 2016
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Fair Lawn High School student had been under investigation for Twitter posts criticizing Israel

NEWARK – A Fair Lawn High School student’s controversial Twitter posts did not constitute bullying, according to a determination by school investigators. A letter from the school’s principal notifying the family of the decision said an investigation found that the incident involved “peer conflict” but did not meet the standard for harassment, intimidation or bullying under New Jersey state law.

The ACLU of New Jersey, which represented 16-year-old Bethany Koval and her family, applauded the decision as a victory for free speech. However, the organization warned that Koval’s case exemplifies an overly broad application of New Jersey’s anti-bullying law, which requires a high standard that was not met here for activity to qualify as bullying.

The investigation was spurred by tweets Koval published during the school’s winter break that were sympathetic to Palestinians in the context of the Israeli-Palestinian conflict. Another student told the school administration that she felt threatened by the posts, prompting the charges of bullying. A media firestorm inflamed the situation and brought many to the defense of Koval, who also goes by Benny. The rush of support caused the hashtag #IStandwithBenny to trend on Twitter at one point. After her and her family’s ordeal, Koval has temporarily removed herself from Twitter.

“I am grateful for this ruling that posting my political opinions online was not considered bullying and for the fact that my speech didn’t deserve official censorship,” Bethany Koval said. “The manner in which the bullying law was used in my case was not in the spirit of free speech. It’s unfortunate that such a noble law in principle was used to justify something as troubling as chilling students’ speech.”

“I would be lying if I said this experience didn’t change me,” Bethany Koval added. “I have always believed that independent thought should be encouraged above all else, especially for impressionable students who are just discovering how to use their rights. If I hadn’t documented the incident online and garnered so much support, I might have been intimidated into silence. Through it all — in-person and online harassment, losing family and friends, a 90-person rally at the high school in support of the bullying charges, vandalization of our home, and the impact of everything on my outlook — my views have only grown stronger, and my voice, louder.”

On Jan. 6, Koval was called to the school’s main office, where Fair Lawn High School Assistant Principal Frank Guadagnino showed her a printout of her tweets, saying they could get her in trouble at school. Given the severe consequences that can accompany a finding of harassment, intimidation or bullying under New Jersey law, Koval asked for a lawyer before agreeing to sign any statements, a request that Koval said was not honored.

Koval criticized the Israeli government on Twitter, but Koval protected her classmates’ anonymity on her public social media accounts when they engaged her in discussions about the Israeli-Palestinian conflict. Koval posted on Twitter that students were talking “smack” about her because of anti-Israel Tweets. A school friend asked for their names on Twitter, but Bethany instead said she would message the student privately; Bethany’s schoolmate ultimately didn’t know the names. Toward the end of the Israel-focused Twitter conversation, Bethany said she was “sooooo glad that pro-Israel girl from my school unfollowed me!” and went on to criticize Israel with the remaining characters of the tweet, never naming any individuals.

Under New Jersey’s current anti-bullying law, passed in 2010 and updated in 2012, schools have an obligation to investigate any report of harassment, bullying or intimidation, letting individual principals determine whether those reports meet a certain threshold. If a student is found to have engaged in harassment, intimidation or bullying, the consequences can be severe, including suspension and expulsion.

“Bethany’s case shows how the anti-bullying law can be misused to stifle free expression, far from its intent to meaningfully address harassing behavior,” said ACLU-NJ Senior Staff Attorney Alexander Shalom, who helped the Koval family during the school’s investigation. “In some cases, the anti-bullying law is being read so broadly that perfectly constitutional free speech can easily be placed under a microscope, contrary to the spirit of the law. It’s not going to be the bland, inoffensive speech that tests the strength of the First Amendment; it’s going to be the words that spark controversy and inflame people’s passions. Students shouldn’t have to fear that their thoughts on politics, or anything else, could be taken out of context and have them branded as a bully, especially when the consequences can be so serious.”

According to New Jersey law, a student’s behavior rises to the level of harassment, bullying or intimidation if it is motivated by a real or perceived personal characteristic and substantially interferes with the operation of the school or the rights of other students. Additionally, the actions would have to be ones where a reasonable person would expect them to harm a student emotionally or physically, or they would have to insult or demean a student or group of students or create a hostile environment for a student. Schools receive grades for their anti-bullying efforts, which they must post on their websites. School employees can be held accountable for not investigating bullying.

“I cannot tell you how relieved my family is for this investigation to be over and for the school to have determined that Bethany’s speech wasn’t harassment, intimidation, or bullying,” said Debra Koval, Bethany’s mother. “I feel like my daughter’s rights have been vindicated now that she’s no longer under suspicion for being something that’s the opposite of who she is. I hope the school’s finding sends the message once and for all that expressing your opinions, even when they conflict with deeply held beliefs, is not something that deserves to be punished.”

“I am extremely grateful to Fair Lawn High School Principal James Marcella for his understanding and direction,” Debra Koval added. “I am extremely grateful as well to advocate David Stein for his steadfast support for Bethany’s free speech even while holding different views from hers, and to the ACLU-NJ for its help through this ordeal.”

In its annual reports, the New Jersey Anti-Bullying Task Force has identified the vagueness of the statute as problematic. Additionally, it has recommended allowing principals to first determine if the facts as presented would constitute bullying before proceeding with an investigation.

Free Speech Victory for Man Who Flipped Off Cop in Unmarked Car

February 16, 2016
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NEWARK – Prosecutors dismissed charges against a Bergen County man who was cited for disorderly conduct after showing his middle finger to an aggressive driver who turned out to be a police officer in an unmarked car. In a vindication of free speech rights, the New Milford municipal prosecutor dismissed the charges against William Martin, who was represented by the ACLU of New Jersey.

“When I received a summons, I felt that my free speech rights were under attack for nothing more than expressing my frustration with someone whose driving had put people at risk,” Martin said. “I’m relieved to know that the town of New Milford recognized it wasn’t worth prosecuting me for expressing my frustration.”

Martin received a disorderly conduct summons in New Milford, Bergen County, after flipping the bird to an officer in an unmarked car. On the narrative portion of the ticket (PDF) the officer wrote, “Behaved or exhibited disorderly conduct, specifically by extending his left arm out the driver’s side window and raise his left middle finger [at the officer].” Legal precedent has firmly established that a raised middle finger, even one directed toward a police officer, is an act of speech protected under the First Amendment.

“Enforcing manners rather than public safety is a poor use of police resources,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero, who represented Martin. “Our client expressed his frustration using a peaceful, silent gesture that is protected by the First Amendment. In this case, an officer chose to initiate and escalate an encounter instead of just ignoring it. It might be rude to flip off a police officer, but it isn’t a crime.”

In the incident leading up to the summons, Martin was followed closely by an unmarked passenger car while on an errand. The driver began to tailgate Martin’s vehicle, and Martin became concerned. Martin tapped his brakes lightly as a signal for the driver to stop following so closely. As Martin slowed to make a turn into the bank, the driver behind him stopped just inches from Martin’s bumper.

Shaken by the situation, Martin lowered his window and stuck out his middle finger. The driver followed him into the parking lot, activated the unmarked police car’s grill lights, and blocked Martin’s car.

Martin was prosecuted under a municipal disorderly conduct ordinance that is so broad as to be virtually unenforceable. The ordinance, which puts a blanket prohibition on any behavior deemed a disturbance, is much more punitive than state law, which requires that the action be an intentional, materially harmful disturbance.

“This experience really made me question what I thought I knew about my rights,” Martin added. “It was extremely upsetting for the police to punish me for an understandable response to an aggressive driver. I felt powerless. Now that the prosecutor has dismissed the charges, I feel like I’ve been vindicated.”

The ACLU of Pennsylvania won a case in 2009, Hackbart v. Pittsburgh, that affirmed the constitutional rights of a man in circumstances nearly identical to Martin. Hackbart was attempting to parallel park when a driver blocked the space he was backing into. When Hackbart gave him the finger, the officer in the unmarked car cited him based on an anti-obscenity law. U.S. District Court Judge David Cercone ruled that the police violated his rights by citing him with disorderly conduct for showing the officer his middle finger.

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ACLU-NJ Defends West New York Man Arrested After Filming Police

December 22, 2015
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The ACLU of New Jersey has filed a lawsuit (PDF) against the West New York Police Department on behalf of a man who was arrested in violation of his First Amendment right to free speech after filming police officers arresting two teenagers.

The ACLU-NJ is challenging Cesar Sanchez’s arrest on charges of obstructing the administration of law based on Sanchez’s filming of the police and his refusal to provide identification. The First Amendment allows people to film the police unobtrusively. The municipal prosecutor in West New York has already dropped the charges against Sanchez, having determined that no probable cause existed to justify the arrest.

“It’s a strange experience to expect to spend an evening at home after work and instead wind up in jail, all for doing something that the Constitution protects,” said Sanchez. “I’m filing this lawsuit so no one else in West New York has their freedom taken away for exercising their First Amendment right to film the police to begin with.”

When Sanchez, a West New York resident, saw police forcefully arresting two teenagers on his way home from work in July, he pointed his cellphone camera and hit record. The officers unlawfully ordered him to put away his phone. He initially demurred but complied when one of the officers approached him. However, when the police asked for identification, he opted to exercise his legal right to refuse. The police then arrested him, in retaliation for filming the scene lawfully and for declining to show his identification despite the police’s lack of justification to request it.

The lawsuit explains that West New York has a duty to create affirmative policies allowing filming of police and to properly train its officers that filming the police in public is a legal, constitutionally protected activity. Sanchez has asked in his filing for the town to take steps to proactively establish protections for people peacefully filming officers in public. Currently, West New York has no policies on its books affirming the right of people to film police.

“Cellphone cameras have become a common tool for holding police accountable, but unfortunately, the knowledge that it’s perfectly legal to film officers in public hasn’t spread as rapidly,” said ACLU-NJ attorney Rebecca Livengood, who represents Sanchez. “Officers already know that cellphone cameras have become the new normal, and now they need to accept that people have the right to use their devices to film police.”

Earlier this year, the ACLU of New Jersey released Mobile Justice, a smartphone application available on Apple and Android devices that allows users to record police interactions and send them to the ACLU to monitor for possible rights violations. The app also informs users of their rights when interacting with police.

“We the people may know our rights, but the police must uphold those rights for democracy to work,” said Livengood. “West New York needs to adopt a policy that promises the public that the police will respect our freedoms, even the ones – or especially the ones – that they would prefer we not exercise.”

In 2012, the ACLU-NJ won a successful settlement on behalf of Khaliah Fitchette, a Newark teenager who was held in a police car and arrested after filming police officers while she was riding a city bus.

The complaint is captioned Sanchez v. Town of West New York. Mobile Justice is available for free on Android and Apple iOS platforms.

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ACLU-NJ Scores Assembly Members on Key Civil Liberties Votes

October 28, 2015
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New Jersey General Assembly

NEWARK - On the most important civil liberties issues facing the 216th Legislature, a majority in the General Assembly voted with the ACLU of New Jersey at least 90 percent of the time.

The first-ever ACLU-NJ legislative scorecard tracks the records of Assembly members on 13 key issues votes during the legislative session that began Jan. 2014. In the run-up to the Nov. 3 election, in which Assembly members are at the top of the ticket, the ACLU-NJ is releasing a scorecard of those votes to educate the public at large as well as its 20,000 members and donors who live in every single legislative district in the state. The information can be found online at https://www.aclu-nj.org/scorecard. It includes a table showing how every Assembly member voted on the issues and allows users to learn details about the scored bills, compare Assembly members’ voting records, find out who made the Honor Roll, and look up scores for legislative districts and an interactive map of New Jersey.

“The good news is that most Assembly members vote for civil liberties and civil rights most of the time. The bad news is that our elected officials aren’t always there when it counts, like with the bill to allow transgender New Jerseyans access to birth certificates that reflect their true gender,” said Ari Rosmarin, ACLU-NJ Public Policy Director. “With this kind of sound information, civil rights voters can hold elected officials accountable because they know where their representatives stand on the key issues of the day when they go to the polls.”

Of the hundreds of bills the Legislature considered, the ACLU-NJ identified 13 votes as the most central to civil rights and civil liberties, including legislation to:

  • End solitary confinement for juveniles.
  • Require the Port Authority to abide by open records and open meeting laws.
  • Reform the state’s broken bail system.
  • Rein in the use of drones and restrict the purchase of surplus military equipment by law enforcement.
  • Expand medical parole to prisoners in need of 24-hour medical attention.
  • Allow transgender New Jerseyans to obtain a birth certificate that matches their gender identity.
  • Permit those with a terminal illness, with the assistance of a doctor, end their lives in a compassionate manner.
  • Create greater transparency in public funds used to rebuild after Superstorm Sandy.
  • Prohibit employers from asking first-round job applicants about criminal histories.
  • Expand opportunities for individuals to expunge their criminal records.

Out of New Jersey’s 80 Assembly members, 32 – or 40 percent – made the ACLU-NJ’s Honor Roll, with ratings of 100 percent.

The lowest rating belonged to Assemblyman Gregory McGuckin (R-Brick) at 38 percent. Eight other members of the Assembly scored below 50 percent and also earned a spot on the ACLU-NJ’s less-than 50 percent list.

“Above all, this scorecard is a tool for public accountability. We created it to allow New Jerseyans to learn where their lawmakers stand on key issues involving our rights and freedoms,” said ACLU-NJ Executive Director Udi Ofer. “We’re here to ensure those who have taken a stand for our fundamental civil rights continue to act in defense of our rights and liberties, and we’re here to put pressure on those who need a refresher in what it means to defend the rights of the people. Our goal is for every elected official to achieve a 100 percent rating. Even more importantly, our goal is for every resident of New Jersey to know where their representatives stand.”

The ACLU-NJ will continue to monitor important votes as the Legislature returns for its biennial lame-duck session after the election and before the 217th Legislature is convened in January. An updated scorecard, including scores for the Senate, will mark the end of the legislative term.

Visit https://www.aclu-nj.org/scorecard to read the scorecard online, look up legislative districts, compare Assembly members on an interactive map of New Jersey, and learn about the details of the scored bills in more detail.

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Court Upholds Right to Challenge NYPD Surveillance Program

October 13, 2015
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The American Civil Liberties Union of New Jersey today applauded a court decision today that ensures the right of Muslim New Jerseyans to challenge the New York Police Department surveillance program that appeared to target them based solely on their religious beliefs. The decision issued by the U.S. Court of Appeals for the Third Circuit sided with individuals, associations, and businesses represented by Muslim Advocates and the Center for Constitutional Rights, and reinstated the case in which the ACLU-NJ and Rutgers School of Law-Newark Constitutional Rights Clinic filed a friend of the court brief on behalf of numerous civil rights organizations. The opinion rejected a lower court opinion issued in February 2014 that had erroneously held that the plaintiffs had no standing to sue and accepted at face value the government’s unsupported rationale for the spying.

As explained by the Court: “What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight — that ‘loyalty is a matter of the heart and mind, not race, creed, or color.’”

The following statement is from Edward Barocas, Legal Director of the ACLU of New Jersey.

Edward Barocas

“The ACLU-NJ commends the Court of Appeals for the Third Circuit for reinstating the case against the NYPD’s discriminatory spying program. It appears the agency spied on Muslim individuals, mosques, and Muslim-owned businesses based solely on religion. Our Constitution forbids such discriminatory actions.

“Widespread discriminatory policies against religious and ethnic minorities have occurred before in our country, but we look back on such actions with regret, as we will here. The opinion today rightly overturned a ruling that would have denied individuals the right to challenge patently unconstitutional discrimination. When the government profiles an entire group of people based solely on a characteristic such as ethnicity or religion, affected individuals are due their day in court, which will now happen. We look forward to the next steps in this important case.”

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As Governor, Presidential Candidate Christie Earned Low Marks

June 30, 2015
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New Jersey Governor Chris Christie

ACLU-NJ Report Card Reflects Poor Performance in First Term

NEWARK – As New Jersey Governor Chris Christie prepares to announce his candidacy today for president of the United States, the American Civil Liberties Union of New Jersey (ACLU-NJ) reissued its report card on his first term in office.

Christie earned a grade of D+ for his record on civil liberties and civil rights. Now into his second term, Christie not only continues his poor performance, but raises new concerns about his record on key matters of constitutional rights.

“As Americans begin to consider candidates for the presidency, it is vitally important that they are informed about their candidates’ records on constitutional rights and freedoms,” said ACLU-NJ Executive Director Udi Ofer. “We hope that this guide will help voters become more informed about Governor Christie’s stance on key civil liberties and civil rights issues.”

The ACLU-NJ report card graded Christie on 12 crucial civil rights and liberties matters: freedom of expression, freedom of religion, separation of church and state, voting rights, women’s rights, immigrants’ rights, privacy, LGBT rights, criminal justice and drug policy, transparency, separation of powers, and economic justice.

“Governor Christie’s record on civil liberties and civil rights has been a poor one,” said Ofer. “Some of his most frustrating moments have been those times when he paid lip service to the protection of rights but failed to back up words with actions. For gay and lesbian New Jerseyans seeking to marry, sick patients in need of medical marijuana, or New Jerseyans seeking to learn basic information about their state government, the Christie administration has been a failure.”

Christie’s lowest grades were in the areas of transparency, separation of church and state, and separation of powers. The governor earned higher marks in other areas, such as freedom of religion. Following are some highlights (and lowlights).

  • Freedom of religion: Christie earned a solid B, his highest mark, particularly for his work to protect Muslim New Jerseyans from discrimination.
  • State involvement in religion: On the other end of the religion spectrum, Christie earned an F for giving away millions in state funds to two sectarian religious institutions that train clergy members.
  • Transparency: Christie earned a solid F for his record on transparency, despite campaigning in 2009 as the candidate who will bring accountability to Trenton. He fought against reforms to bring more transparency to the Port Authority of New York and New Jersey, the bi-state agency at the epicenter of the Bridgegate scandal, and his administration routinely denies basic open records requests that the courts later overturn.
  • Criminal justice and drug policy: Christie’s record is a mixed one, earning him a C. He supported reforming the state’s broken bail system, as well as adding oversight to police acquisition of military equipment. However, he has dragged his heels implementing medical marijuana and more recently opposed an effort to regulate and tax marijuana, saying that as president he would prosecute individuals in the four states that have legalized marijuana for personal use by adults. During his time in office, New Jersey has made more than 100,000 arrests for marijuana possession.
  • LGBT rights: Christie fought against marriage equality, ending his opposition only when it became clear he would lose in court, earning him a D.
  • Immigrants’ rights: Christie supported giving undocumented immigrants a chance at college by signing the New Jersey Dream Act, but vetoed an important provision to open the doors fully by allowing them to apply for state financial aid.
  • Women’s rights: Christie has a mixed record. He slashed funding for women’s family planning centers, which has forced at least six clinics to close or fire staff. He did, however, sign into law a bill that protects women from pregnancy discrimination, as well as several measures aimed at closing the wage gap between men and women.

Christie’s second-term has raised other civil liberties and rights concerns. He has opposed early, in-person voting, dismissing it as an attempt at voter fraud despite the lack of evidence to support such claims. And eight months ago his administration issued an order requiring the detention of medical workers returning from one of three West African countries where they treated Ebola patients, even if they were asymptomatic. The decision was widely criticized by the medical community following the detention of a nurse, Kaci Hickox, at Newark Liberty International Airport. In the face of public pressure, he eventually released Hickox.

Finally, Christie has repeatedly stated that the Patriot Act does not violate civil liberties, despite the fact that numerous federal courts have found provisions of the Act to be unconstitutional and to violate civil liberties.

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“Cursing” and “Off-Color Language” Not Necessarily Child Abuse NJ Supreme Court Rules, Affirming ACLU-NJ Position

February 2, 2015
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The New Jersey Supreme Court today handed down a ruling (PDF) affirming that a parent is not guilty of child abuse just for admitting to cursing and using off-color language. The ACLU-NJ argued as a friend of the court in State of New Jersey v. Tate that a foster father’s vague description of having cursed and used off-color language in front of his child as part of a guilty plea -- which he requested to withdraw -- was not strong enough evidence of habitual use of obscenity.

“Today’s decision rejects the dangerous notion that offensive language alone amounts to a crime,” said CJ Griffin of the law firm Pashman Stein, who authored the brief (PDF) and argued on behalf of the ACLU-NJ. “We’re pleased that the Court recognized that a defendant’s admission to having used curse words and off-color language in front of a child was too vague on details to make him guilty of abuse on that basis alone.”

The ACLU-NJ also argued that the one-hundred-year-old law should be struck down as unconstitutionally vague, but the Supreme Court decided it did not need to address that issue in this case.

“We’re gratified with the court’s decision to safeguard lawful speech by requiring trial courts to obtain factually sufficient guilty pleas,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero. “The law in question at the center of this case, however, still raises serious constitutional problems, and we hope those issues can be resolved either through the legislature or through the courts.”

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ACLU-NJ Wins Injunction in New Brunswick Ban on Begging

December 22, 2014
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NEWARK – The ACLU-NJ won a temporary injunction today in Middlesex County Superior Court that prevents New Brunswick from enforcing two laws that make it illegal to beg. With pro bono attorneys from the firm McCarter & English, LLP, led by partner Gerard Brew, the ACLU-NJ brought the case on Dec. 19 on behalf of John Fleming, a homeless man who lives in New Brunswick and who had been cited and arrested under the laws, as well as on behalf of the New Jersey Coalition to End Homelessness.

Judge Frank Ciuffani expressed concerns about the ordinances’ constitutionality, and the City of New Brunswick asked to schedule the hearing in February to consider ways to amend the ordinances to align them with constitutional principles.

“We’re grateful that Judge Ciuffani understood the constitutional problems in banning begging in New Brunswick, and we’re grateful for the swift action taken today in suspending the laws,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero. “These ordinances target a particular kind of message. No one should be subjected to a fine for holding a sign or asking for spare change. Thankfully, for now, New Brunswick will have no authority to interfere in that form of speech.”

The two ordinances that have been temporarily halted criminalize begging within the town and require a permit to solicit philanthropic donations, although permits are only granted to organizations, not individuals. John Fleming, a wheelchair-bound homeless resident of New Brunswick who relies on the charity of others to survive, received citations from police four times in less than two months for asking for money via a sign that read “Broke – Please Help – Thank you – God bless you.” At the time of the fourth citation, police arrested Fleming because he missed a court appearance for a previous citation.

“The holiday season puts these anti-begging laws in stark perspective,” said Deb Ellis, Executive Director of the New Jersey Coalition to End Homelessness. “We profess the spirit of giving, and yet cities are targeting vulnerable populations. The judge today made the correct and compassionate call, by putting these unfair ordinances on hold.”

The hearing to consider permanent injunction of the ordinances, scheduled for February 12, 2015, at 1:30 p.m., will take place at the Middlesex County Courthouse.

ACLU-NJ and Homeless Group Challenge New Brunswick’s Unconstitutional Ban on Begging

December 19, 2014
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NEWARK -- The ACLU-NJ filed a lawsuit against the City of New Brunswick for two unconstitutional ordinances – one forbids panhandling and the other requires a permit to solicit philanthropic donations – that violate the First Amendment and in effect criminalize poverty. With pro bono attorneys from McCarter & English, LLP, the ACLU-NJ filed the suit on behalf of John Fleming, a New Brunswick man who has been cited several times and arrested for violating the ordinances, and on behalf of the New Jersey Coalition to End Homelessness.

The lawsuit seeks an immediate and permanent end to the ordinances and requested the court schedule a prompt hearing.

 “The inconvenience a passerby might experience from hearing a plea for money pales in comparison to the violation a homeless person experiences in losing an essential constitutional liberty,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero. “Unfortunately, New Brunswick isn’t alone – not in the U.S., and not in New Jersey. The ACLU-NJ is committed to making sure towns in our state don’t use poverty as grounds to strip people of their rights.”

John Fleming, a wheelchair-bound homeless resident of New Brunswick who relies on panhandling to survive, received citations from police four times in less than two months for asking for money via a sign that read “Broke – Please Help – Thank you – God bless you.” At the time of the fourth citation, police arrested Fleming because he missed a court appearance for a previous citation. He was later held for failing to appear in court on traffic violation from Watchung more than 10 years before.

“Individuals like Mr. Fleming must choose between acquiring enough money to survive and facing citations or arrests,” said Deb Ellis, Executive Director of the New Jersey Coalition to End Homelessness. “Making poor people into criminals does not reduce homelessness or poverty. A person experiencing homelessness suffers many indignities – losing freedom of speech shouldn’t be added to that list.”

The ordinances at issue ban constitutionally protected, peaceful expression by outlawing certain forms of speech based solely on the content: asking for money or food. The anti-panhandling ordinance unconstitutionally prohibits people from asking for money in public. Another ordinance bans solicitation of philanthropic gifts without a permit, although only organizations rather than individuals can obtain them. Fleming has been cited under both ordinances. In its filing, the ACLU-NJ asks the court to immediately and permanently strike the two ordinances from the books.

“All I’m doing is holding a sign to ask for help, but this isn’t just about me – it’s about the government not being able to arrest people for what they say,” Fleming said. 

New Brunswick is not alone in criminalizing poverty. Towns in New Jersey, and across the country, have passed ordinances banning panhandling and forbidding sharing food with homeless people, as documented in the report “No Safe Place: The Criminalization of Homelessness in U.S. Cities” released by the National Law Center on Homelessness and Poverty. Atlantic City, Newark, and Trenton are reported to have laws on the books banning or restricting begging. Atlantic City requires a permit and has requirements a homeless person might not be able to meet, and it bans begging in certain places in town, while Trenton and Newark ban begging both citywide and in particular sites. Atlantic City and Trenton also ban sleeping in public city-wide.

“Our constitution prohibits laws that punish the peaceful speech of homeless and destitute people,” said cooperating attorney Emily Goldberg, Pro Bono Director of McCarter & English, LLP.  “Fifty years ago, this country declared a war on poverty, but now it seems that towns like New Brunswick have declared a war on the impoverished.”   

The case, captioned New Jersey Coalition to End Homelessness & Fleming v. New Brunswick, was filed in Middlesex County Superior Court.

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