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Joseph W. Mcmullen, Individually and On Behalf of All Others Similarly Situated v. Maple Shade Township

June 27, 2011

JOSEPH W. MCMULLEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED.; *CHRISTOPHER OBCHINETZ,
v.
MAPLE SHADE TOWNSHIP, IN ITS OWN RIGHT AND ON BEHALF OF SIMILARLY SITUATED NEW JERSEY MUNICIPAL ENTITIES JOSEPH W. MCMULLEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLANT



On Appeal from the United States District Court for the District of New Jersey (D.C. No. 08-cv-02902) District Judge: Honorable Robert B. Kugler

The opinion of the court was delivered by: Hardiman, Circuit Judge.

PRECEDENTIAL

(*Dismissed per Clerk's order of 7/26/10)

Argued December 16, 2010

Before: JORDAN, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

This appeal involves a suit brought under 42 U.S.C. § 1983 by a New Jersey resident who was arrested by municipal police for violating a public intoxication ordinance. At issue is whether a federal cause of action exists when one is arrested for violating an ordinance that might be invalid under state law. We hold that it does not.

I

In October 2007, Joseph McMullen was arrested in Maple Shade, New Jersey for violating the following ordinance:

A. No Person shall be intoxicated or drunk or disorderly in any public street, lane, sidewalk, public parking lot, public or quasi-public place or in any public conveyance or in a private motor vehicle while such vehicle is in motion or parked in any public street, lane or public parking lot or while upon any private property not his or her own without the express permission of the owner or other person having authority to grant such permission to the annoyance of any person or be so intoxicated or drunk as to be unable to conduct himself or herself with due care for his or her safety or the safety of other persons.

MAPLE SHADE TOWNSHIP, N.J., CODE § 142-2 (emphasis added).*fn1 McMullen acknowledges being intoxicated at the time of his arrest, but denies acting disorderly.

During a hearing in Maple Shade Municipal Court, McMullen claimed the Township's public intoxication ordinance was either superseded by or contrary to the New Jersey Alcoholism Treatment and Rehabilitation Act (ATRA). See N.J. STAT. ANN. §§ 26:2B-6 to -9.3, -11 to -39 (West 2007). ATRA provides:

Notwithstanding any other provision of law, no county, municipality, or other jurisdiction within the State shall adopt an ordinance, resolution, or other legislation creating an offense of public intoxication or any equivalent offense, and any existing ordinance, resolution, or other legislation creating such an offense is hereby repealed.

Id. at § 26:2B-29.*fn2 Persuaded by this argument, Municipal Judge Gregory R. McCloskey dismissed ...


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