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On The Front Lines

VICTORY: In Unanimous Ruling, NJ Supreme Court Strikes Down "Hate Crime" Statute Used to Prosecute State Worker for Joking with Black Co-Worker

TRENTON, N.J.—In a resounding victory for The Rutherford Institute’s efforts to combat a climate of political correctness, especially as it relates to First Amendment activity, the Supreme Court of New Jersey has unanimously held that a provision of the state’s “hate crime” statute is unconstitutional, agreeing that the law was unduly vague in violation of fundamental due process.

In a decision handed down in State v. Pomianek, the N.J. Supreme Court ruled that the part of the state’s “bias intimidation” law allowing enhanced punishment if the victim of a crime believes the defendant acted with racial bias is unconstitutional because a defendant cannot know what a victim might believe or feel. The decision came in the case of a town maintenance worker, David T. Pomianek, who committed a workplace prank against an African-American co-worker. Although Pomianek was acquitted of charges that he acted with racial bias when he playfully locked a fellow worker in a storage area and joked about it, he was found guilty under provisions of the state’s bias intimidation law, which elevates a petty offense to a hate crime if the alleged victim believes he or she was targeted because of bias.

“The problem with hate crime laws, which this ruling makes clear, is that in order to crack down on hateful behavior, hateful thoughts and expression must also be targeted, which runs diametrically counter to the First Amendment's protections for free speech and expression,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of the award-winning book A Government of Wolves: The Emerging American Police State. “Hate crime laws chill constitutionally protected speech and render all speech suspect, the prelude to an act of violence. In this way, an off-color joke could be construed as hate speech. However, if the Constitution means anything, it means that individuals have the right to speak freely, and even jest, even when the speech is politically incorrect and should not be penalized because others take offense.”

In April 2007, David T. Pomianek and a co-worker with the Township of Gloucester Public Works Department allegedly lured an African-American co-worker into a storage cage 17 feet off the ground in the township’s Public Works building, locked the cage for several minutes and remarked, “You throw a banana in the cage and he goes right in.” The incident was described by other workers as a “prank” that had been played on other employees and no physical harm resulted. Nevertheless, Pomianek was charged with bias intimidation for causing his co-worker “to be intimidated because of race, color, national origin or ethnicity” under New Jersey Statute § 2C:16-1, which is punishable by imprisonment for up to 18 months and a fine of up to $10,000.

Although a jury acquitted Pomianek of targeting the co-worker based on his race, it convicted him under provisions of the state’s bias intimidation law which essentially render an act a hate crime if the victim perceives it was motivated by race. Rutherford Institute attorneys argued that New Jersey’s hate crime law unconstitutionally punishes speech that might cause offense and criminalizes behavior regardless of a person’s intent to cause intimidation or to act on the basis of improper bias. Finally, Institute attorneys argued that the hate crime law violates the constitutional guarantee to due process because it bases liability on the inner beliefs and thoughts of the alleged victim and an alleged offender cannot have the kind of fair notice that conduct might be criminal in violation of a fundamental requirement of due process.

The Institute was assisted in presenting arguments in the case by affiliate attorneys Seth Grossman and Taryn Weiss.

Case History

October 20, 2014: Rutherford Institute Challenges NJ Hate Crime Law, Asks NJ Supreme Court to Find State Worker Not Guilty for Joking with Black Co-Worker

January 14, 2014: Rutherford Institute Challenges NJ Hate Crime Law, Asks NJ Supreme Court to Find State Worker Not Guilty for Joking with Black Co-Worker

September 27, 2011: Citing Free Speech, Rutherford Institute Appeals Case of State Worker Found Guilty Under NJ Hate Crime Law for Joking with Black Co-Worker


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