Monday, October 20, 2014

Rutherford Institute to the NJ Supreme Court: Find State Worker Not Guilty for Joking with Black Co-Worker

Attorneys for The Rutherford Institute presented arguments today to the Supreme Court of New Jersey challenging the application of the state’s “hate crime” law against a town maintenance worker who committed a workplace prank against an African-American co-worker. Although David T. 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. In an amicus curiae brief filed in January, attorneys for The Rutherford Institute asked the New Jersey high court to declare the statute wholly invalid in violation of the First Amendment.

The Rutherford Institute’s amicus curiae brief in State of New Jersey v. David Pomianek is available at

“Criminalizing anyone’s speech or thoughts is an egregious violation of our First Amendment rights,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “If the First Amendment means anything, it means that individuals have the right to disagree and speak freely even when the speech may be controversial, politically incorrect or in jest.”

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. Pointing out that the only so-called evidence of racial bias in Pomianek’s case related to his statement during the prank that “you throw a banana in the cage and he goes right in,” Rutherford Institute attorneys argue that New Jersey’s bias intimidation statute unconstitutionally punishes speech because even if Pomianek’s words were found to be “politically incorrect” and insensitive, expression cannot be punished or suppressed merely because others take offense to it. Moreover, the Institute’s brief also points out that the effect of the statute is to impose “strict criminal liability” on persons, making them guilty of a crime regardless of their intent to cause intimidation or to act on the basis of improper bias. Finally, Institute attorneys argue 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 Rutherford Institute’s arguments before the Supreme Court of New Jersey were presented by attorney Taryn Weiss of Westmont, N.J.

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