At the Bianchi Law Group, criminal defense and restraining order cases make up most of our case load.  We are often the last line of defense for people going through a nasty divorce or relationship who are alleged to have committed a crime or offense, including an act of harassment, either as a petty disorderly offense in municipal court or as a predicate act in a restraining order.

I have seen first-hand how the harassment statute is abused by vengeful or scorned lovers, divorcees, ex-girlfriends or boyfriends, baby daddies or mommies or enemy neighbors. To make matters worse, judges and police officers often err on the side of caution by authorizing complaints or restraining orders. Of all the restraining order cases I have handled, an allegation of harassment has been alleged in just about everyone them.

That is why it’s refreshing to get Court decisions on the harassment statute for guidance such as the recent Justice Albin New Jersey Supreme Court decision in State v. William Burkert.

In Burkert, the NJ Supreme Court reversed a harassment conviction (in municipal court) for N.J.S.A. 2C:33-4(c). Subsection (c) provides that a person commits a petty disorderly persons offense if, with purpose to harass another, he engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

The Court found that courts, prosecutors and police often interpret and apply subsection (c)  in ways that infringe on free speech which is protected by the United States and New Jersey Constitutions. The Court explained that subsection (c) was never intended to protect against the common stresses, shocks, and insults of life that come from exposure to crude remarks and offensive expressions, teasing and rumor mongering, and general inappropriate behavior.

While the Court found that subsection (c) as applied criminalized protected free speech, the Court stopped short of declaring subsection (c) unconstitutional. Instead, the Court saved subsection (c) by narrowing its application:

“Therefore, for constitutional reasons, we will construe the terms “any other course of alarming conduct” and “acts with purpose to alarm or seriously annoy” as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.”

Importantly, the Court clarified that the limiting nature of the opinion only applied to pure expressive activity. “To be clear, the standard set forth by the court above applies only in those cases where the alleged harassing conduct is based on pure expressive activity”.

To illustrate the Court’s decision, the Court gave the following example of harassment under the new subsection (c) standard:

A person who every day, over the course of a week, either repeatedly yells outside an ex-partner’s house during the night, or repeatedly follows closely next to a woman importuning her for a date or making other unwanted comments, despite constant demands to stop, would violate subsection (c).

Finally, the Court applied the new standard to the facts in Burkert and decided that the facts in the case, even when viewed in the light most favorable to the State, did not satisfy the elements necessary for a subsection (c) violation of the harassment statute.

As seen by the holding in the case and the example provided by Court, the new standard for subsection (c) only applies to pure expressive activity. Additionally, subsection (c) only prohibits repetitive communications that are directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.

This is an important case for New Jersey attorneys who handle domestic violence cases in the criminal context and/or restraining order cases in the Superior Court. Burkert is just another case that can help a Defendant defend against the dangerous and often abused harassment statute.

Judge’s Albin’s opinion in State vs. Burkert can be viewed and downloaded below.

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David Bruno is a New Jersey Lawyer, Partner at the Bianchi Law Group, Former Assistant Prosecution, Certified Criminal Trial Attorney by the New Jersey Supreme Court, and National TV Legal Analyst.

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