COVID Lockdown Violation Conviction Reversed, Based on N.J. Policy Exempting “Political Activities”

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State v. French, decided Wednesday by the N.J. appellate court (in an opinion by Judges Susswein and Vanek) reverses defendant’s convictions for violating a COVID stay-at-home order in May 2020; the defendant had been “walking along the highway holding up signs to passing motorists stating ‘PHUCK,’ ‘#THIN BLUE,’ and ‘Slow Down Police Ahead.” The order provided, in relevant part,

All New Jersey residents shall remain home or at their place of residence unless they are … leaving the home for an educational, religious, or political reason ….

The court’s analysis:

At an April 4, 2020 press briefing, the Governor was asked specifically about the ability to protest under EO 107. He responded: “[D]on’t protest as a group. We respect folks who want to protest, find some other way to do it virtually online, whatever it might be.”

The Governor further clarified his position regarding protests under the relevant executive orders at a press briefing on April 29, 2020:

People have a right to protest. I wish they would do it from home …. The thing that really bothered me was they were congregating, and they weren’t wearing masks for the most part and they were on top of each other and that’s what led to the [violation of the executive order] …. I wish folks would protest from home and virtually, but if they’re going to protest we’re [going to] be tough on enforcing the … no congregation.

… [A] June 17, 2020 memorandum from the State of New Jersey Attorney General entitled “Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting COVID-19 Related Offenses” … directs:

… To ensure that all outdoor political activities and outdoor worship services receive uniform treatment, I am directing prosecutors to move to dismiss any Executive Order violations previously filed for such conduct, despite the initial probable cause determination or appropriateness of the violation at the time it was issued. Based on data maintained by the Division of Criminal Justice, there were five individuals who received summonses for organizing outdoor political protests and religious services in violation of Orders prior to the issuance of Executive Order No. 152; no individual protestors or worshipers have been cited to date.

Notably, the Attorney General Memorandum directs prosecutors to dismiss any pending charges for “outdoor political activities.” … [D]efendant was protesting by holding up posterboards expressing speech for motorists to see…. [D]efendant’s protesting constitutes political activity for the purposes of EO 107 and the Attorney General Memorandum. “Political expression obviously includes any fair comment on any matter of public interest, whether or not the subject of an election campaign, whether or not embarrassing to the local governing body, and whether or not irritating to one’s neighbors.” … [D]efendant’s conduct … constitutes “outdoor political activity” and that the charges for violation of EO 107 were required to be dismissed under the Attorney General Memorandum.

The court upheld, though, “a conviction for walking in the direction of traffic,” under a statute that provides, “On all highways where there are no sidewalks or paths provided for pedestrian use, pedestrians shall, when practicable, walk only on the extreme left side of the roadway or its shoulder facing approaching traffic.”

Defendant had also been convicted of disorderly conduct based on his “alleged shaking of his genitalia from outside his clothing and raising his middle finger toward the police,” but the lower court had reversed those convictions (for reasons not noted in the appellate opinion), and the state didn’t appeal.

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