GURBIR S. GREWAL DENNIS CALO Bergen County Prosecutor First Assistant Prosecutor CAROL NOVEY CATUOGNO county Of Bergen Executive Assistant Prosecutor TWO Bergen county Plaza ROBERT ANZILOTTI Hackensack, New Jersey 07601 Chief of Detectives (201) 646-2300 July 27, 2017 By Hand Delive? Chief James N. Batelli Mahwah Police Department 221 Franklin Turnpike Mahwah, New Jersey 07430 Re: Enforceabilitv of Mahwah Township Ordinance No. 1806 Dear Chief Batelli: I write in response to your July 24, 2017 letter, seeking guidance concerning the enforceability of Mahwah Township Ordinance No. 1806 (the ?Ordinance?), which becomes effective on July 27, 2017, and limits the use of Mahwah recreational facilities to New Jersey residents. In your letter, you raise a number of concerns regarding the Mahwah Police Department?s ability to enforce the Ordinance without, among other things, violating the constitutional rights of individuals using Mahwah recreational facilities as well as Attorney General Directive 2005-1 (the ?Directive?), which expressly prohibits racially-in?uenced policing. You have also expressed concern that enforcement of the Ordinance may expose you and the MPD to increased civil liability and to internal affairs complaints. I concur with your observations concerning the Ordinance and agree that its enforcement raises serious legal issues. For the reasons set forth below, pursuant to my authority as the Chief Law Enforcement Of?cer of Bergen County, I direct you not to enforce the Ordinance. First, enforcement of the Ordinance raises numerous constitutional concerns as it provides you no neutral criteria for MPD of?cers to utilize when deciding to detain an individual to ascertain his/her residency status. At best, the Ordinance invites MPD of?cers to stop individuals for no reason at all, and, at worst, MPD of?cers may be called on (as discussed below) to stop individuals for impermissible reasons. As a result, its enforcement would violate the Fourth Amendment?s proscription against unlawful searches and seizures. Indeed, in Barkawi v. Borough of Haledon, the Appellate Division af?rmed the trial court?s invalidation of a similar ordinance excluding non-residents (of the borough in that case) ?'om borough parks on Fourth Amendment grounds. No. A-7455-9725, 1999 WL 33601519 at *5 (App. Div. Jun. 21, 1999), cg; denied, 162 ?487 (Nov. 18, 1999). L. A State Accredited and Nationally Recognized Law Enforcement Agency Second, enforcement of the Ordinance may violate the Directive prohibiting racially- in?uenced policing, which provides in relevant part: A sworn of?cer or civilian employee of a police agency acting under the authority of the laws of the State of New Jersey shall not consider a person?s race or ethnicity as a factor in drawing an inference or conclusion tha the person may be involved in criminal activity, or as a factor in exercising police discretion as to how to stop or otherwise treat the person. . .. Directive at 1] In this regard, you have informed me that since enactment of the Ordinance (but prior to its effective date), the MPD has received numerous calls asking for it to be enforced against individuals perceived by the callers to be out-of-state members of the Hasidic Jewish community using Mahwah parks. Any response by MPD of?cers to verify such calls would necessarily run afoul of the Directive as the responses would be based on impermissile grounds. Third, responding to any such calls for service could also give rise to violations of criminal statutes enacted to prohibit such conduct by law enforcement of?cers. N.J.S.A. (setting forth the New Jersey State Legislature?s declaration relative to deprivation of civil rights by public of?cials) and (crime of of?cial deprivation of civil rights if a public servant knowing that his conduct is unlawful and acting with the purpose to intimidate or discriminate against an individual or group of individuals because of race, color, religion, etc., subjects another to unlawful detention or impedes another in the lawful exercise of any right or privilege). Fourth, while the reasons outlined above alone counsel against enforcement of the Ordinance, it also bears noting that its enforcement may give rise to claims that the Ordinance interferes with First Amendment guarantees and an individual?s federal constitutional right to due process and equal protection under the law. Finally, I want to thank you for bringing this matter to my attention and if you have any additional questions concerning the above please do not hesitate to contact me. I am also copying Mahwah Mayor William Laforet, members of the Mahwah Township Council, and the Township Attorney on this letter, so that they may consider my observations with respect to the Ordinance and the problems with its enforcement. Very truly yours, am GURBIR S. GREWAL Bergen County Prosecutor CC: Mayor William Laforet Council President Robert Hermansen Council Vice President Jonathan Wong Council Member Janet Ariemrna Council Member George Ervin Council Member David May Council Member Steven Sbarra Council Member James Wysocki Township Attorney Brian M. Chewcaskie, Esq. (by e?mail only)