N.J. anti-tax activists arrested at post office lose First Amendment claim

Thursday, March 2, 2000

A federal appeals court has rejected civil rights claims filed by two political activists against the police officer who arrested them for distributing leaflets in East Brunswick, N.J.

John Paff and James Konek, officers of the Libertarian Party in Somerset and Middlesex counties, planned a peaceful demonstration for April 15 — tax day — in 1996. The protesters intended to distribute leaflets opposing taxes and the Internal Revenue Service outside an East Brunswick post office building.

On April 10, Paff and Konek sent a letter to the East Brunswick postmaster saying that they planned to conduct a tax-day protest. The letter claimed the activists had a constitutional right to distribute leaflets on the post office sidewalk and asked that the postmaster contact them if he had a “different opinion on this matter.”

However, on the day of the protest, Postmaster Steve Leddy asked the protesters to move to a public right-of-way farther away from the post office. After Paff and Konek refused to move, Leddy called police.

Police officer George Kaltenbach arrested the activists after they again refused to move and had Konek's car towed and impounded. Paff and Konek were charged with criminal trespassing.

In September 1996, however, a local prosecutor dismissed the charges after learning of an internal Postal Service policy not to prosecute trespassers unless they physically obstruct a postal building.

Paff and Konek filed suit against Kaltenbach and the city in April 1997, alleging that their arrest violated several constitutional rights, including the First Amendment right to distribute leaflets on the post office sidewalk.

In September 1998, U.S. District Judge Joseph A. Greenaway, Jr. ruled that Paff and Konek had a First Amendment right to distribute the leaflets. He nevertheless granted summary judgment to Kaltenbach because he determined the officer was entitled to qualified immunity. (Qualified immunity shields governmental officials from liability if they have not violated a clearly established constitutional right.)

The plaintiffs appealed to the 3rd U.S. Circuit Court of Appeals. In the meantime, they settled their claims against the city of East Brunswick.

On appeal, a three-judge panel ruled 2-1 in Paff v. Kaltenbach that the police officer was entitled to qualified immunity because there was not a clearly established constitutional right to distribute leaflets on a post office sidewalk.

The majority cited the 1990 U.S. Supreme Court decision United States v. Kokinda in which the high court upheld the constitutionality of postal regulations that prohibited the solicitation of “alms and contributions” on post office property.

In Kokinda, the court determined that a post office sidewalk is a nonpublic forum, or an area within which the government can impose reasonable restrictions on expression.

“In our view, a reasonable law enforcement officer with knowledge of the relevant legal principles and the information available would have done exactly what Kaltenbach did here,” the majority wrote.

Judge Robert Cowen dissented, finding that the policeman was not entitled to qualified immunity.

Cowen focused on the fact that “the controlling postal regulation does not ban leafleting and instead only prohibits disorderly conduct and soliciting alms or contributions.”

“Thus, it is clearly established that under the postal regulation protesters have a legal right to hand out leaflets, provided that they do not engage in disorderly conduct or solicit money to be paid on the postal premises,” Cowen wrote.

“If the postal regulations permit leafleting, then I think the protesters have a valid First Amendment claim, even if the clearly established law does not flatly prohibit the Postal Service from banning all leafleting in the future,” he wrote.

Christopher Walsh, one of the protesters' attorneys, said that “we are seriously considering” filing for full panel review by the 3rd Circuit. “The main point is that there was no law that the protesters violated and, moreover, they had a clearly established right to distribute leaflets.”

Kaltenbach's attorney was out of the office and could not be reached for comment.