How a 1980s Pa. traffic ordinance could influence Bridgegate case

TRENTON - Here's what counted as a fun night out for young adults in 1980s York, Pa.: Continuously circling "the Loop" by car while trying to get lucky.

"There was absolutely nothing to do," said William C. Anderson, a longtime resident and retired lawyer.

All that driving caused considerable congestion, and police and firefighters racing to emergencies were sometimes delayed. So, in 1988, the city passed a so-called anti-cruising ordinance, banning "repetitive driving" between 7 p.m. and 3:30 a.m. in part of the city.

The owner of an auto-parts store in the area, represented by Anderson, sued, claiming the law violated his right to travel freely.

More than 20 years later, that case could affect the fate of two former aides to Gov. Christie charged with conspiring to cause massive traffic jams by closing lanes to the George Washington Bridge in an act of political revenge.

It was cited last week in Newark as Bridget Anne Kelly, Christie's former deputy chief of staff, and Bill Baroni, a former Christie appointee at the Port Authority of New York and New Jersey, asked a federal judge to throw out charges against them.

Perhaps the most unusual charge Kelly and Baroni face is a civil rights count: that they "knowingly and willfully" deprived the residents of Fort Lee, Bergen County, of the right to "localized travel on public roadways free from restrictions unrelated to legitimate government objectives."

Prosecutors say the charge is anchored in the York case, which an appeals panel in Philadelphia ultimately dismissed. Significantly, though, the court found a constitutional right to intrastate travel.

"We conclude that the right to move freely about one's neighborhood or town, even by automobile, is indeed 'implicit in the concept of ordered liberty' and 'deeply rooted in the nation's history,' " Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit wrote in the 1990 decision, quoting case law that established a test for determining whether a right is considered fundamental under the Constitution's due process clauses.

U.S. Attorney Paul Fishman, who announced the indictment of Kelly and Baroni last year, clerked for Becker after graduating from Harvard Law in 1982.

Kelly and Baroni also are charged with wire fraud and conspiring to obtain by fraud and misapply property of an organization (the Port Authority) receiving federal benefits. Their trial is set for September.

David Wildstein, a former Port Authority official, has pleaded guilty in the case and is cooperating with the government.

Speaking with reporters after last week's hearing, Fishman said the bridge case was the first he knew of the alleged criminal violations of the right to localized travel. Typically, the right is invoked in civil cases, as in York.

Prosecutors say the legal precedent supporting the civil rights charge is strong. The Third Circuit's decision in Lutz v. City of York "has, for more than 25 years, confirmed the existence of a right to localized movement so rooted in the traditions and conscience of our people as to be considered fundamental," prosecutors wrote in a March filing.

The defense argues that the indictment asserts a nonexistent constitutional right to be free from "inconvenience" and "improperly created traffic," not a right to intrastate travel. Kelly also argues that she did not deprive Fort Lee residents of the alleged right to intrastate travel because she did not erect any barriers that prevented them from entering or leaving town. (Two of three lanes to the bridge were closed, but motorists still made it across the span - eventually.)

"The George Washington Bridge was open," Kelly's attorney, Michael Critchley Jr., told U.S. District Judge Susan D. Wigenton on April 28.

The appeals court in the York case said the "right or tradition we consider may be described as the right to travel locally through public spaces and roadways."

The City of York argued that there was no such right.

"Under York's view," Becker wrote, "a state or local government could constitutionally prohibit all freedom of movement that does not involve interstate migration, interstate commerce, business between a citizen and the federal government, and (presumably) travel incident to otherwise protected activity."

Nevertheless, the appeals court found that York's ordinance, which imposed a $50 fine on offenders, represented a reasonable government restriction on the right to localized travel.

Prosecutors in the bridge case note that other federal courts have supported the Third Circuit's conclusion, citing decisions that found that so-called drug-exclusion zones in Cincinnati and a curfew ordinance for juveniles in Vernon, Conn., violated individuals' rights to "travel locally through public spaces and roadways" and their "freedom of movement," respectively.

But not all federal courts have agreed with the conclusion in Lutz.

Kelly's defense cites Dickerson v. City of Gretna, a civil case involving residents trying to flee New Orleans in the aftermath of Hurricane Katrina. The residents were prohibited from crossing a bridge that led to the suburb of Gretna. A federal judge dismissed the residents claim, ruling in 2007 that "while there is no doubt that a fundamental right of interstate travel exists, the Supreme Court has not ruled on whether a right of intrastate travel exists."

"We regulate vehicle traffic all the time, between stop signs and stop lights and detours and all kinds of things," said Mitchell F. Crusto, a law professor at Loyola University New Orleans, who has written about the Gretna case and the right to travel.

"I don't think that merely the fact that" Kelly and Baroni allegedly restricted travel "in and of itself would be a violation of the Constitution or a criminal act," said Crusto, who has not followed the bridge case.

Prosecutors say that's a question for a jury - and that the appeals court in the York case had set a standard to determine whether a violation of the right to localized travel was legitimate.

In Lutz, the Third Circuit ruled that the York ordinance passed the "time, place and manner" doctrine often used to adjudicate free-speech cases, because it was "narrowly tailored to combating the safety and congestion problems identified by the city."

"Just as the right to speak cannot conceivably imply the right to speak whenever, wherever and however one pleases . . . so, too, the right to travel cannot conceivably imply the right to travel whenever, wherever and however one pleases," Becker wrote.

The lane closures did not serve a legitimate government purpose, prosecutors say. And the timing (the gridlock began on the first day of school in 2013), place (the access point to the bridge, in the "heart" of Fort Lee), and manner (the defendants gave no advance notice to local officials about what they claimed was a traffic study, and ignored the mayor's pleas for help) of the scheme warrant a criminal charge, according to Fishman.

aseidman@phillynews.com

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@AndrewSeidman