Vague wording in a Flemington ordinance leads to constitutional challenge after vigil arrest
By Elizabeth Weill-Greenberg
Bob Flisser just might be feeling special, unique even. On Aug. 17, 2005, 1,500 vigils were held all over the country to remember soldiers who died in the Iraq War.
“Across the country, 200,000 or so people participated, and there was only one arrest,” said Bob Flisser, a leader in New Jersey for Democracy. Flisser lives in Branchburg and has worked in Flemington for years.
“And that was you?” I asked.
“Thank you very much,” he replied, in the irreverent, laughing tone he carried throughout our conversation.
When Flisser learned that MoveOn and Democracy for America were asking communities to organize vigils for soldiers who had died in the Iraq War, he got to work. He put the word out in Flemington and decided, as a courtesy, to let the police know of his plans to hold the vigil on the Main Street sidewalk, across from the Old Courthouse.
But when he showed up at the police station he was told he needed a permit. They also told him it was too late to apply for one. Flisser explained that only about 24 people were likely to show up.
“We’re going to be on a public sidewalk, we’re not going to block the sidewalk, we’re not going to block traffic, we’re just going to be a few people there,” Flisser said, recounting his conversation with the officer. “This is public property.”
The patrolman said, according to Flisser, “that it’s the policy of the borough that there are no public streets or public sidewalks, they are the property of the borough. And I laughed at him – I said, ‘You’ve gotta be kidding me, who do you think the borough belongs to?’”
Flisser gave the officer his license to photocopy, as well as his work and home phone numbers. They left the conversation with the patrolman warning Flisser he would receive a citation if he held the vigil.
“He didn’t say you will be subject to being handcuffed and being thrown into the back of the police cruiser,” Flisser said. “He just said I’d get a citation.”
The vigil began at 7:30 that night. As Flisser predicted, about 30 people showed up throughout the evening. At about 8:30 three police cruisers showed up. Flisser and the patrolman he spoke with earlier walked to a nearby bench.
Flisser assumed the officer was going to simply write him a citation but instead he pulled out a pair of handcuffs. As Flisser was put in the back of a police cruiser, the other officers ordered everyone else at the vigil to go home, saying they had no right to be there. The officer drove Flisser to the borough’s police station -- across the street.
After about a half-hour, Flisser was let go with a citation. But as he and some fellow vigil-goers were dining at Chili’s later that night, they looked at the ticket and realized it was for “peddling without a license.” The county admitted that was an administrative mistake, dismissing that charge and replacing it with “parading without a permit.”
Now more than a year later -- and hundreds more soldiers dead -- Flisser’s trial has begun. His defenders, including the American Civil Liberties Union of New Jersey (ACLU-NJ), are challenging his arrest, and also the constitutionality of the ordinance.
“We’re not arguing that I did have a permit, but our position is that we didn’t need one for what we were doing,” said Flisser. “When we looked at the copy of the permit application, in addition to contact info and whatnot, it was all about ‘what is the starting point’ and ‘what is the stopping point,’ ‘how many vehicles,’ ‘are you going to have animals.’ The whole thing is completely not applicable to us.”
Flisser’s attorney, Fernando M. Pinguelo, agreed, explaining that, “We argue that a parade permit entails mobility and obstruction of traffic, and the types of activities are different here.”
It also appears that the borough may be selectively enforcing the parade ordinance, as Flisser saw when he ran into Christmas carolers last December. Unlike at the vigil, the carolers were blocking a public sidewalk. He asked them if they had a permit; surprised, they said no.
“Not only are they selectively enforcing it, but they are basing it on content, which is completely unconstitutional,” said Flisser. “Of course, they deny it up and down -- they can deny it until they’re blue in the face. They’re just not telling the truth.”
The arresting officer’s testimony on the first day of Flisser’s trial shows the subjectivity allowed in enforcement: "It could've gotten out of hand. You have three officers, with 30 to 50 people, and the odds aren't in our favor. I felt nervous. I can't say I felt comfortable with the situation." (Star-Ledger, 8/29/06)
Everyone knows how dangerous those peacenik candle-holdin’ types can be. Lock your doors, ladies.
When asked why a vigil required a permit but the Christmas carolers did not, David Bunevich, the Flemington municipal prosecutor who is trying the case, said, “I don’t see how you can equate Christmas carolers with somebody who’s expressing a position of any kind, not that it matters but it matters to the point of safety. If there’s somebody else across the street who thinks their position is not the correct position. There may be some problems. This is nothing more to do than public safety.”
While Bunevich said that Flisser’s case had nothing to do with content, his comments make it appear that content was most certainly the deciding factor.
“More significantly, from your own point of view you can understand that any point of view may create a counter-reaction in other people and if you have that point of view presented in a public way the police need to be present just to be there in case there’s any problems,” he said. “They were just concerned they didn’t have enough manpower at that given moment.”
Hmm … so it seems that political points of view requires a permit while other types of expression, like religious points of view, may not. And if public safety was truly the only impetus for the police department to require a permit then why didn’t they simply attend the vigil so they would be there if any problems arose? The police instigated the only conflict of the evening when they arrested Flisser and ordered everyone else to leave.
Besides guilt or innocence, though, the parade ordinance’s constitutionality is also in question. After the trial is over, Flisser plans to sue the borough.
The ordinance defines a parade as “any parade, march, ceremony, show exhibition, pageant or procession of any kind, or any similar display in or upon any street, park or other public place.” The ordinance exempts funeral processions, students going to and from classes or participating in educational activities, and governmental agencies.
Other New Jersey towns have adopted similarly constitutionally allergic ordinances, Flisser said. However, in some cases, like in Princeton, the ordinance was changed without legal intervention. Flisser hoped that could be the case in Flemington, as well. The ACLU-NJ has shown Flemington alternate wording for the ordinance, Flisser said.
Councilman Joey Novick, the only Democrat on Flemington’s borough council and a participant at the vigil, told City Belt, “I certainly think it's something that we should look at, to see if there's something we can change for the future. I don't know if the borough would want to change it or require it to be changed – we might just decide that it is as-is.”
The ACLU-NJ refused to provide City Belt with the proposed alternate wording, or to comment on Flisser’s case.
“Basically, anything you could possibly do in your life is ‘parading’ – marching, standing still, breathing, not breathing – it’s so vague, it’s just obviously unconstitutional,” explained Flisser. “If you and I were standing on the sidewalk, wearing a t-shirt that says a message, they could say that we’re parading.”
Yesterday, Judge John Petronko ruled against Flisser, saying that the vigil was indeed illegal. In addition, according to the Courier-News, the judge said that Flisser failed "to illustrate even one example of arbitrary or unreasonable" application of the ordinance. We weren't in court, but the example Flisser cites in our story about the Christmas carolers certainly seems like arbitrary application to us.
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