ROSELLE, New Jersey - November 17, 2010 - The city of Roselle, New Jersey has passed a new law criminalizing the act of sleeping in public. Police Chief Paul Morrison insists that he is only going to use it against homeless people but that may be a statement that city lawyers will come to regret in court.

Faced with citizens objecting that they do not want to be cited for dozing off in a park or at a bus stop, Police Chief Paul Morrison insisted that “this ordinance was amended to help assist the police in addressing the increasing problem of homeless people sleeping on benches.” However, that would indicate that he has an ambiguous law that can be used against anyone of his choosing.

The selective enforcement would raise serious constitutional questions. It would seem to trigger review for being void for vagueness since citizens will be unclear when their dozing will be viewed as actionable. In Connally v. General Const. Company, the Court barred any law that is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

The law also raises equal protection concerns since the police will be seeing two people sleeping on a bench and enforce the law against the person they perceive as homeless. This law appears designed to give such unstructured discretion and selective prosecution - in violation of constitutional guarantees.

Loitering laws have historically raised similar concerns but this law magnifies the problem by isolating a common law that will only be enforced against a certain group of people. It would be like saying anyone can loiter except certain groups.

The sheriff’s public statement will likely be featured prominently in any litigation.