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KREIMER v. BUREAU OF POLICE FOR MORRISTOWN

May 22, 1991

RICHARD R. KREIMER, PLAINTIFF,
v.
BUREAU OF POLICE FOR THE TOWN OF MORRISTOWN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sarokin, District Judge.

OPINION

A public library has enacted a regulation which is admittedly aimed at barring a particular homeless person from its premises because his presence and appearance are considered offensive to others. The danger in excluding anyone from a public building because their appearance or hygiene is obnoxious to others is self-evident. The danger becomes insidious if the conditions complained of are borne of poverty.

The public library is one of our great symbols of democracy. It is a living embodiment of the First Amendment because it includes voices of dissent. It tolerates that which is offensive. The library of today frequently provides not only access to books, newspapers, and magazines, but also to concerts, lectures, and exhibits. It is a source of fact and fiction.

One cannot dispute the right and obligation of the library trustees to assure that the library is used for the general purposes for which it is intended. Libraries cannot and should not be transformed into hotels or kitchens, even for the needy. The public has the right to designate which of its institutions shall be utilized for particular purposes.

However, in establishing regulations for use, the conditions imposed must be specific, their purposes necessary, and their effects neutral. Likewise, enforcement cannot be left to the whim or personal vagaries of the persons in charge.

No one can dispute that matters of personal appearance and hygiene can reach a point where they interfere with the enjoyment of the facility by others. But one person's hay-fever is another person's ambrosia; jeans with holes represent inappropriate dress to some and high fashion to others. Thus, no matter how laudable and understandable the goals of the library may be, we cannot — we dare not — cross the threshold of barring persons from entering because of how they appear based upon the unfettered discretion of another.

Society has survived not banning books which it finds offensive from its libraries; it will survive not banning persons whom it likewise finds offensive from its libraries. The greatness of our country lies in tolerating speech with which we do not agree; that same toleration must extend to people, particularly where the cause of revulsion may be of our own making. If we wish to shield our eyes and noses from the homeless, we should revoke their condition, not their library cards.

Background

The court has been asked to resolve defendants' motion for summary judgment on the facial validity of the "Patron Policy" (hereinafter "policy") instituted by the Joint Free Public Library of Morristown and Morris Township, under which plaintiff was ejected and subsequently excluded from the library. This motion for summary judgment on the facial validity of the library policy does not address or attempt to resolve whether defendants acted within that policy on the occasions upon which they excluded plaintiff from the library, nor does it pertain to plaintiff's conduct in any way. Nevertheless, on this motion, defendants request "a mandatory injunction [directing] that plaintiff shall leave the Library premises when so directed by the executive director of the Library or her authorized assistant." Def. Reply Brief at 16.

Plaintiff has cross-moved for summary judgment, arguing that the library policy is facially invalid. Should the court find in plaintiff's favor on this cross-motion, plaintiff requests that the court enter 1) a declaratory judgment that the library policy violates plaintiff's rights under the New Jersey and United States Constitutions; 2) a preliminary and permanent injunction barring enforcement of Patron Policy paragraphs 1, 5, 9, and the final two unnumbered paragraphs; and 3) an injunction barring promulgation of any future library policy designed to restrict plaintiff's or other homeless persons' access to the library. Plt. Brief at 2-3. The American Civil Liberties Union of New Jersey ("ACLU"), in its capacity as an amicus curiae, has made submissions in support of plaintiff's position.

Plaintiff, a resident of Morristown, is a homeless individual whose access to showers and laundry facilities is severely curtailed by his homeless status. Kreimer Cert. at ¶¶ 1, 6. In the underlying action, plaintiff alleges that the library policies*fn1 governing access to the library violate his rights guaranteed under state and federal law. He seeks a declaration that the policy is invalid, an injunction against its enforcement, and the assessment of damages against several municipal employees and agencies for excluding plaintiff from the library on the basis of the policy.

On May 16, 1989, in specific response to the "problem behavior" of some library patrons (Def. Brief at 3), the library Board of Trustees adopted to following written policy:

  1. Patrons shall be engaged in normal activities
  associated with the use of a public library while
  in the building. Patrons

  not engaged in reading, studying, or using library
  materials may be asked to leave the building.
  Loitering will not be tolerated.
  5. Patrons shall respect the rights of other
  patrons and shall not annoy others through noisy
  or boisterous activities, by unnecessary staring,
  by following another person through the building,
  by playing walkmans or other audio equipment so
  that others can hear it, by singing or talking to
  oneself or any other behavior which may reasonably
  result in the disturbance of other persons.
  9. Patron dress and personal hygiene shall conform
  to the standard of community public places. This
  shall include the repair or cleanliness of
  garments.
    Any patron not abiding by these or other rules
  and regulations of the Library, may be asked to
  leave the Library premises. Library employees
  shall contact the Morristown Police if deemed
  advisable.
    Any patron who violates the Library rules and
  regulations may be denied the privilege of access
  to the Library by the Library Board of Trustees,
  on recommendation of the Library Director.

Rice Cert., Exh. B. Defendants freely admit that they designed these regulations to curb the specific behavior of plaintiff. See Def. Reply Brief at 12.

Shortly after the library announced this policy, a staff attorney of amicus the ACLU of New Jersey contacted counsel for the library and expressed the belief that the policy's prohibition on "loitering" was unconstitutionally vague. In addition, the ACLU suggested that the policy as written gave to the library staff excessive discretion to enforce the policy. Rice Cert., Exh. C. According to defendants, the library Director and Board of Trustees discussed the issue with their counsel, who advised that although in his opinion, the policy was not unconstitutionally vague, the library might consider clarifying the policy.

In response, the following revised policy was adopted on July 25, 1989:

  1. Patrons shall be engaged in activities
  associated with the use of a public library while
  in the building. Patrons not engaged in reading,
  studying, or using library materials shall be
  asked to leave the building.

Id., Exh. E. Thus, revised paragraph 1 reflects three changes from the previous policy: 1) there is no longer any reference to "normal" activities; 2) qualifying patrons "shall" be asked to leave, instead of "may" be asked to leave; and 3) there is no longer any reference to "loitering." In addition, the revised policy provides as follows (newly added words and phrases are underlined, and omitted words and phrases appear in brackets):

  5. Patrons shall respect the rights of other
  patrons and shall not harass or annoy others
  through noisy or boisterous activities, by
  [unnecessary] staring at another with the intent to
  annoy that person, by following another person
  about the building with the intent to annoy that
  person, by playing walkmans or other audio
  equipment so that others can hear it, by singing or
  talking to oneself or any other behavior which may
  reasonably result in the disturbance of other
  persons.
  6. Patrons shall not improperly interfere with the
  use of the library by other patrons, or improperly
  interfere with library employees' performance of
  their duties.*fn2
  9. Patrons shall not be permitted to enter the
  building without a shirt or other covering of their
  upper bodies or without shoes or other footwear.
  Patrons whose bodily hygiene is so offensive as to
  constitute a nuisance to other persons shall be
  required to leave the building.
    Any patron not abiding by these or other rules
  and regulations of the library shall [formerly may]
  be asked to leave the library premises. Library
  employees shall contact the Morristown Police if
  deemed advisable.
    Any patron who violates the library rules and
  regulations shall [formerly may] be denied the
  privilege of access to the library by the library
  Board of Trustees, on recommendation of the Library
  Director. Any aggrieved patron may have the
  decision reviewed by the Board of Trustees but only
  if the patron has complied with the directive of
  the Library Director.

Id. The library's counsel approved the policy, and the Director instructed the library staff to enforce the policy. Defendants maintain that "[a]ll the librarians' actions at issue in this case were taken pursuant to the Library Policy, in both its written and unwritten forms." Def. Brief at 5.*fn3 By letter dated September 19, 1989, a staff attorney of the ACLU of New Jersey expressed continued concern that the revised policy afforded library staff excessive enforcement discretion which could inflict a discriminatory impact against homeless persons and, more generally, "might allow one class of persons to remain and require one class to leave the premises." Id., Exh. F.

The revised policy adopted on July 25, 1989, remains in effect to this date.

Discussion

This court can only grant summary judgment if there are no genuine issues of material fact and, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 84 (3d Cir. 1987). Because the parties' cross-motions for summary judgment only concern the facial validity of the library policies and not the facts of plaintiff's underlying complaint, the single issue raised in these cross-motions — i.e. whether the library regulations are facially valid — is particularly suited for immediate resolution via summary judgment.

I. The Library Policy Violates the First Amendment

The First Amendment to the United States Constitution provides: "Congress shall make no law . . . abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition Government for a redress of grievances." The Amendment applies to the states under the Fourteenth Amendment.

The New Jersey Legislature vests the public library Board of Trustees with the power to make and to enforce "proper rules and regulations for the government of the library and generally do all things necessary and proper to the establishment and maintenance" of the library. N.J.S.A. 40:54-12; N.J.S.A. 40:54-29.13. The instant policies were instituted and enforced pursuant to this vested authority.

As a preliminary matter, the court must determine whether the library regulations implicate the First Amendment, ...


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