958 F.2d 1242 (3rd Cir. 1992), 91-5501, Kreimer v. Bureau of Police for Town of Morristown

Docket Nº:91-5501.
Citation:958 F.2d 1242
Party Name:Richard R. KREIMER v. BUREAU OF POLICE FOR the TOWN OF MORRISTOWN, Jay White, former chief of police, Morristown; J. Rota, D. McKim, D. Widdas, D. Bowerbank, R. Gibbons, Kevin Mulholland, police officers, Morristown, David Manahan, former mayor of Morristown, Norman Bloch, mayor of Morristown, Terrence J. Reidy, Morristown business administrator, E
Case Date:March 23, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1242

958 F.2d 1242 (3rd Cir. 1992)

Richard R. KREIMER



former chief of police, Morristown; J. Rota, D. McKim, D.

Widdas, D. Bowerbank, R. Gibbons, Kevin Mulholland, police

officers, Morristown, David Manahan, former mayor of

Morristown, Norman Bloch, mayor of Morristown, Terrence J.

Reidy, Morristown business administrator, Edward A. Taratko,

Morris Township business administrator, Barbara Harris,

mayor of Morris Township, Joint Free Public Library of

Morristown and Morris Township: the library Board of

Trustees, Elaine Weil, president of the trustees, Barbara

Rice, library director, B. Riesenfeld, Elaine Kissil, Donna

Cole, Cathy Prince, Ann McDade, Lois Demsky, library

employees, all individually and in their official

capacities, Capt. Walter Gensch.


TOWNSHIP Defendant-Third Party Plaintiff,



Company, Third Party Defendants.

The Joint Free Public Library of Morristown and Morris

Township, Appellant.

No. 91-5501.

United States Court of Appeals, Third Circuit

March 23, 1992

Argued Feb. 14, 1992.

Rehearing Denied April 21, 1992.

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Clifford W. Starrett, Sheilah O'Halloran, James P. Wyse (argued), Wendy L. Wiebalk, Schenck, Price, Smith & King, Morristown, N.J., for appellant.

Frank Askin (argued), Rutgers School of Law, Constitutional Litigation Clinic, Newark, N.J., Bruce S. Rosen (argued), Andrew E. Anselmi, Lowenstein, Sandler, Kohl, Fisher & Boylan, Roseland, N.J., for appellee.

Eric B. Schnurer, Philadelphia, Pa., John A. Powell, American Civil Liberties Union Foundation, New York City for amicus curiae American Civil Liberties Union and American Civil Liberties Union of New Jersey.

Bruce J. Ennis, David W. Ogden, Theresa Chmara, Jenner & Block, Washington, D.C., for amicus curiae Freedom to Read Foundation.

Stephen S. Weinstein, Valerie L. Riley, Morristown, N.J., for amicus curiae New Jersey Library Ass'n.

Joseph L. Yannotti, Asst. Atty. Gen., Benjamin Clarke, Deputy Atty. Gen., Robert J. Del Tufo, Atty. Gen. of N.J., for the Attorney General, amicus curiae.

David G. Sciarra, Director, Division of Public Interest Advocacy, Isabel McGinty, Asst. Deputy Public Advocate, Wilfredo Caraballo, Public Advocate of New Jersey, for the Public Advocate, amicus curiae.

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GREENBERG, Circuit Judge.

This case compels us to resolve questions concerning the breadth of a public library's authority to promulgate and enforce regulations governing the use of its facilities.

The appellee, Richard R. Kreimer, is a homeless man who resides in various outdoor public spaces in Morristown, New Jersey. Kreimer, who was a frequent patron of the Joint Free Public Library of Morristown and Morris Township ("the Library"), was expelled from the Library on at least five occasions for violating its rules governing patron conduct. In response, Kreimer commenced this action in the United States District Court for the District of New Jersey against the Library and others, alleging in his complaint, as ultimately amended, that the rules are facially invalid under the First Amendment, made applicable to the states by the Fourteenth Amendment, as well as under the due process and equal protection clauses of the Fourteenth Amendment, and similar provisions of the New Jersey Constitution. On cross-motions for summary judgment, the district court accepted Kreimer's arguments and issued an interlocutory injunction prohibiting the enforcement of several of the Library's rules. Kreimer v. Bureau of Police for the Town of Morristown, 765 F.Supp. 181 (D.N.J.1991). The Library appeals.

The district court's opinion unduly restricts the Library's authority to circumscribe admission to and expulsion from its facility and gives short shrift to its significant interest in achieving the optimum and safest use of its facilities. Indeed, we find that the rules are reasonable "manner" restrictions on the patrons' constitutional right to receive information. We also disagree with the district court's analysis and application of the doctrines of vagueness and overbreadth and further find fault with the court's determination that the Library intended to restrict Kreimer's access to it in violation of the Fourteenth Amendment. In sum, we are satisfied that the rules in issue pass muster under well-established constitutional principles governing facial attacks. Accordingly, we will reverse.



The facts of this case as germane on this facial challenge are essentially undisputed. Pursuant to N.J.Stat.Ann. § 40:54-29.3 (West 1991), Morristown and Morris Township elected to establish and support the Library. 1 Although N.J.Stat.Ann. § 40:54-9 (West 1991) empowers the Board of Trustees of the Library ("the Board") 2 to enact regulations designed to "carry out the purposes of the joint library," the Board did not promulgate any written rules or regulations governing the use of the Library until May 1989. As stated by the Library's former director, Barbara A. Rice, prior to May 1989, the Library staff followed unwritten rules and procedures with the intent:

to allow library patrons to use the library's facilities to the maximum extent possible. The library staff ... as trained professional librarians, understood from ... professional training ... experience, and ... common sense that anyone exhibiting behavior which interfered with another patron's reasonable use of library facilities, or who interfered with the work of the library staff, should be asked to stop.

App. at 89.

Kreimer frequently visited the Library where he claims to have enjoyed reading

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newspapers, magazines or books, or occasionally sitting in silent contemplation. In the Library's view, however, Kreimer's presence was not so peaceful. The Library contends that he often exhibited offensive and disruptive behavior, including staring at and following patrons and talking loudly to himself and others. It also claims that Kreimer's odor was often so offensive that it prevented the Library patrons from using certain areas of the Library and prohibited Library employees from performing their jobs. 3

Rice, the Director of the Library from June 1, 1986, to December 19, 1990, held monthly staff meetings to discuss how to handle more effectively what she termed "problem behavior" at the Library. This behavior included theft of property, smoking, use of drugs and alcohol, disruptively loud behavior, intimidation of patrons through staring and following them, and exuding of repulsive odors. In 1987, Rice determined that the Library should maintain written records of recurrent problem behavior. Accordingly, it began to keep a logbook detailing the disciplinary problems reported to or observed by the Library staff or patrons. As the Library's brief notes, the logbook reflects that "[b]oth before and after adoption of the written Patron Policy, the Library has been plagued by incidents involving inappropriate conduct on the part of some library patrons." Most of the entries excerpted by the Library in its brief describe Kreimer's alleged behavior: "1/14/89--Kreimer's odor prevents staff member from completing copying task; 3/30/89--Kreimer spent 90 minutes--twice--staring at reference librarians; 6/15/89--[Library Director] called police after Kreimer was belligerent and hostile towards her; 7/21/89--Patron ... followed by Kreimer after leaving Library...."

In May 1989, the Board determined that it would enact written rules expressly prohibiting certain behavior in the Library, and authorizing the Library Director to expel any patron who violated them. The stated purpose of these rules, entitled "Patron Conduct," was to "allow all patrons of the joint free public library of Morristown and Morris Township to use its facilities to the maximum extent possible during its regularly scheduled hours." The rules included the following provisions:

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 by other behavior which may reasonably result in the disturbance of other persons.


9. Patron dress and personal hygiene shall conform to the standard of the community for 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.

App. at 130.

While this set of rules was in effect, the Library expelled Kreimer on at least two occasions for violations of rules 1 and 9.

In response, Kreimer consulted with the American Civil Liberties Union of New Jersey which wrote to the Library on July 5, 1989, asserting that several provisions of this set of rules were unconstitutional. First, the...

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