John Paff, who threatened to sue the township last fall over the mayor and commissioners’ closed session meeting procedures, sent a letter to Mayor Richard DiLascio and township attorney Gary Cucchiara asking Cucchiara to review the loitering ordinance on the books and render an opinion on its validity. Paff, who is the chairman of the New Jersey Libertarian Party’s Preempted Ordinance Repeal Project, cited West Milford Township’s move to repeal its own loitering ordinance that is nearly identical to Lyndhurst’s. West Milford officials earlier this month deemed that the town’s ordinance was unconstitutional, as had the United States Supreme Court when it set a precedent by striking down the anti-loitering law in Chicago in 1999. Previously, the New Jersey court system decided a similar case in a precedent setting decision in 1982 that called arrests in Newark during 1979 for loitering invalid because Newark’s loitering ordinances were preempted by state law and could not supercede it.

"When the legislature sat down and adopted the comprehensive criminal code in 1979, they found there was a patchwork of loitering ordinances across the state and they needed to make something uniform," said Paff. "In this instance, the state has deemed loitering not to be illegal in New Jersey so the municipalities cannot prohibit what the state has permitted."

DiLascio said that he is now looking at the 30-plus year old township ordinance and wondering himself why it’s still in effect. He said loitering is currently not enforced by the police department as a crime and he has too seen constitutional inadequacies within the language of the ordinance itself. Last week, the board of commissioners following Cucciara’s review, introduced and ordinance to repeal the loitering ordinance.

"I don’t think loitering is something going on out there that we should be enforcing as a law. As an attorney, I have some serious constitutional issues with it myself," said DiLascio. "It’s so vague, I don’t think you could muster a defense to enforce it on somebody’s right to due process. Loitering shouldn’t be treated as a crime, if there is a crime going on, there are plenty of statutes on the books where police can find the appropriate statute for a crime and charge appropriately."

According to the loitering ordinance on Lyndhurst’s books, the term of loitering includes the concepts of "spending time idly loafing or walking about aimlessly" and includes the colloquial expression "hanging around". As per the ordinance, loitering is prohibited in a public place under the following circumstances: Create or cause to create a danger of a breach of the peace, create or cause to create a disturbance or annoyance to the comfort and repose of someone, obstruct free passage of pedestrians or vehicles and obstruct, molest or interfere with any person lawfully in a public place. It gives police the power to decide if a person is even likely to cause any of those "violations" and also gives them the power to charge them with one of the violations if they refuse to leave the area after asked to do so.

In 1979 however, when New Jersey legislature created the state’s Criminal Code, they eliminated loitering from state statute as a punishable crime itself. According to the court’s decision in the State v. Crawley, the case that invalidated Newark’s loitering laws, the code eliminated prohibitions such as loitering out of concern that "vagrancy and loitering statues have long suffered from constitutional infirmity and have been criticized as inviting official harassment and discriminatory enforcement."

Police Chief James O’Connor confirmed that the ordinance has not been enforced in years and in his 29 years on the force, he cannot recall arresting and charging anyone for loitering specifically. Typically, the closest thing to that are instances where large groups of youths congregate and subsequently cause disturbances or public nuisances.

"Adults…I can’t recall any arrests made for loitering," said O’Connor. "Sometimes we’ll get large congregations of juveniles and have to ask them four or five times to leave. If they’re acting disorderly or causing a nuisance, then we’ll bring them in and they’ll get the appropriate charges."

Paff has been successful in not only pushing West Milford since 2006 to repeal its loitering ordinance, but has done the same in the Borough of Flemington, Borough of Highland Park and assisted in repeal at Elmwood Park. He said he is working his way through municipalities with his grassroots effort to see if loitering ordinances are still on the books and plans on reaching out to them to repeal as well. That would mean locally, Rutherford too would be hearing from Paff in the future as they still have a loitering ordinance that replicates Lyndhurst’s on file in borough code.

"To let these ordinances languish on the books is very disingenuous," said Paff. "Having loitering ordinances are not consistent with a free society and I just want these towns to get rid of them so there is no ambiguity if they can be enforced or not, because in all actuality, they can’t."

This would be the second time in recent months that a township ordinance was called into question in Lyndhurst for possible violation of constitutional rights. In December last year, the New Jersey Environmental Federation (NJEF) filed a federal court complaint alleging the township for two and a half years denied the organization the right to canvass within the township. The NJEF cited that the provisions of the township’s canvassing ordinance "burden, obstruct and prohibit protected, expressive advocacy".