With Liberty and Parks for All: Court Says NJ Towns Can't Bar "Outsiders" from Parks

June 21, 1999 12:00 am

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Monday, June 21, 1999

NEWARK, NJ — A state appeals court today upheld a 1998 ruling that New Jersey towns may not restrict use of their parks to residents.

The ruling, 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 suit challenged a Borough of Haledon ordinance that restricted use of the public parks to town residents and their accompanied guests. Violation of the ordinance carried a $500 fine and/or a 30-day jail sentence. Many towns throughout New Jersey have similar laws.

In its decision today, the Appellate Division upheld a June 1998 ruling by Superior Court Judge Margaret M. McVeigh. The appeals court rejected the Borough’s contention that the ordinance was a rational means of assuring the health, welfare and safety of borough residents, concluding that “it is hard to imagine what health, welfare and safety issues might arise when a mother and three sons from the neighboring town use a neighborhood park.” The court also noted that there would be “inevitable search and seizure concerns triggered by an effort to enforce this ordinance.”

“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.”

The ACLU of New Jersey brought suit on behalf of Hwida 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 Mrs. 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.

Ms. 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.

Ms. 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,” said David Rocah, a staff attorney with the ACLU of New Jersey.

“This practice is particularly pronounced in suburban communities that want to exclude their less affluent neighbors,” he added. “We believe that public spaces are for the public at large, not just local residents.”

In June 1998, Judge McVeigh, a Superior Court judge in Paterson New Jersey, 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,” the Judge said. “The way we became part of the community was to watch, listen, learn, and “impart a little bit of ourselves in the process.” The judge further held that the right to participate in this process “is intrinsic to our national spirit.”

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,” the Judge 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,” she said, and therefore violates the Fourth Amendment.

The case is Barkawi v. Borough of Haledon, Docket No. A-7455-97T5. Ms. Barkawi was represented by ACLU of New Jersey cooperating attorney Penny M. Venetis and Frank Askin of the Rutgers Constitutional Litigation Clinic.

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