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Bridgegate: Is There a Constitutional Right to Intrastate Travel?


Although on Nov. 27, the court dismissed the civil rights convictions of the "Bridgegate" defendants, it upheld the convictions of wire fraud and knowingly converting or misapplying governmental property. U.S. v. Baroni and Kelly, ___ F 3d.___ ( 3d. Cir.2018).

The facts, which are all too familiar to most New Jersey residents, revolved around former Governor Christie's 2013 reelection bid. Specifically, prior to Sept. 9, 2013, the Port Authority had reserved three "Special Access Lanes " of the George Washington Bridge for local traffic from Fort Lee. Because the mayor of Fort Lee refused to endorse Governor Christie, the defendants allegedly devised a plan to put pressure on Mayor Sokolich by shutting down these lanes under the guise of conducting a  traffic study into whether the special access lanes should permanently continue.

Pursuant to defendant Kelly's email that it was "time for some traffic problems in Fort Lee," these lanes were  shut down on Monday, Sept. 9, 2013, the first day of school in Fort Lee. Contrary to the normal protocol of giving notice of traffic studies weeks or months in advance, notice was not given until the Friday before the shut down. During the morning commute, on the four days that these lanes were shut down, bridge traffic "backed up into Fort Lee and gridlocked the entire town," causing difficulty for paramedics responding to reports of a missing child and a cardiac arrest.

William Baroni, Deputy Executive Director of the Port Authority of New York and New Jersey, and Bridget Kelly, Deputy Chief of Staff for New Jersey's Office of Intergovernmental Affairs, were charged with conspiracy and the substantive offenses of threatening or intimidating any person "in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States" (18 U.S.C. 241), and "under color of any law … willfully subject(ing) any person … to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States" (18 U.S.C. 242). However, because the statutes do not specifically describe the prohibited conduct, their "scope is limited to rights fairly warned of, having been made specific by the time of the charged conduct."

Therefore, the issue was whether, in September 2013, there was a "constitutional right to localized travel on public roadways" and, if so, had that right "been clearly established."

The trial judge, the Honorable Susan D. Wigenton, in denying defendants' motion to dismiss these changes, relied on Lutz v. City of New York, 899 F.2d. 255 (3d Cir. 1990), which "recognized a Fourteenth Amendment due process right to intrastate travel … (i.e.) the right to move freely about one's neighborhood or town."

However, the court, in reversing and vacating the civil rights convictions, determined that "Lutz alone could not have put Defendants on notice that they were violating a constitutional right" because, to be violated, it must be "sufficiently clear that every reasonable official would have understood that what he was doing violated that right."

The court opined that, in order to be "sufficiently clear," either the U.S. Supreme Court must have recognized the intrastate right to travel, or there must be "a robust consensus of cases of persuasive authority in the Courts of Appeal." The court observed that the U.S. Supreme Court has not, as yet, recognized a constitutional right to intrastate travel, and whether such a right exists among the circuits "is uncertain."

The court noted that, among the circuits, the score was 5-4-1, i.e., four circuits, (notably including New Jersey's 3rd Circuit and the 1st, 2nd and 6th) recognized some level of a right to intrastate travel; five circuits (the 4th, 5th, 7th, 8th and 10th) either hesitated or specifically rejected such a right; and the D.C. Circuit, sitting en banc, was "internally conflicted but has not yet set precedent."

In spite of finding that New Jersey's 3rd Circuit decision of Lutz "is both clear and binding (emphasis added) in our jurisdiction," the court held that defendants were not sufficiently put on notice that their conduct was unlawful.

However, in this author's opinion, the court missed the point. Defendants intentionally created "some traffic problems in Fort Lee," New Jersey, not some other state, such as Wyoming (10th Circuit) or Iowa (8th Circuit) that is far removed from the tri-state area's traffic problems, especially as it pertains to "the word's busiest bridge." Additionally, prior to retirement as a trial judge, this author did precisely what Judge Wigenton, did in this case, i.e., focused and relied upon the "clear and binding (precedent) in our jurisdiction." Respectfully, it doesn't matter what governmental officials are aware of in Utah (10th Circuit) or North Dakota (8th Circuit) when the alleged offense occurred in New  Jersey.

In this author's opinion, Judge Wigenton got it right; the Third Circuit got it wrong. Therefore the Supreme Court, should it get the case, should reverse the 3rd Circuit, and re-instate the civil rights convictions.

Stay tuned.

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.