Parents Charged with Endangering Their Children by Having Large Party at Their House

This stems, of course, from a coronavirus-related gathering ban in the town.

|The Volokh Conspiracy |

From Lakewood (N.J.), where there has been a good deal of noncompliance with the ban on gatherings, and police response to such noncompliance (see here and here for past incidents):

Ocean County Prosecutor Bradley D. Billhimer and Lakewood Township Police Chief Gregory Meyer announced that on Sunday, March 29, 2020, Eliezer Silber, 37, and Miriam Silber, 34, both of Lakewood, were charged with five counts of Child Endangerment in violation of N.J.S.A. 9:6-1.

On March 29, 2020, members of the Lakewood Township Police Department were summoned to a residence on Alamitos Drive for a report of a gathering of people blocking the street.  This gathering was in violation of Executive Order No. 107 signed by Governor Phil Murphy on March 21, 2020, which bans gatherings of individuals, whether they be at weddings, parties, celebrations, or other social events.

Upon arrival, Officers discovered a gathering of approximately 40-50 people, including children, on the front lawn and in the street in front of the residence.  The Officers ordered the crowd to disperse, and made contact with the owners of the residence, Eliezer and Miriam Silber.  Eliezer Silber was charged with Violating Any Rule or Regulation Adopted by the Governor in violation of APP.A: 9-49h, as well as Endangering the Welfare of his five children who were at the gathering.  Miriam Silber was likewise charged with Endangering the Welfare of her five children.  They are both required to appear at a future court date in Ocean County Superior Court.

"As I have previously stated, it is my sworn duty to protect all of the residents of Ocean County.  That obligation applies across the board," stated Prosecutor Billhimer.  "My Office will prosecute any individual who defies or breaks the law, State of Emergency or otherwise.  Everyone must respect and follow the law," the Prosecutor stated.  "The men & women of the Lakewood Police Department have done an exceptional job in the face of a public health crisis. Their efforts are truly commendable," Prosecutor Billhimer concluded.

The public and media are reminded that all defendants are innocent until proven guilty beyond a reasonable doubt in a court of law.

Thanks to Larry Seltzer for the pointer.

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  1. If only there was a US Constitution amendment allowing peaceable assembly.

    1. Fascist pig. We don’t need no stinking constitution.

      Secret side note…well said.

  2. ^^^^^ This

    AND,

    Let’s just see in 2 weeks whether this party has truly endangered anything other than the Governor’s machinations on elimination of liberty.

    1. ErictheRed: Would you say that a parent driving drunk with a child in the car doesn’t “endanger” the child unless the child is actually injured in an accident? Or might “endangering” mean exposing the child to a substantial and unnecessary risk, even if that risk doesn’t turn into actual harm in this particular situation?

      1. Substantial, unnecessary, and likely risk — hence your example of the drunk driver as the presumption is that the drunk driver would otherwise inevitably crash.

        I’m not so sure you could show “likely” here…

        1. Dr. Ed: Any particular instance of drunk driving is, thankfully, very unlikely to lead to a crash. And many people drive drunk on occasion for a long time without having a crash that injures a passenger.

          1. I agree — and suspect many juries did as well. What Maine did was define “[a]ggravating factors [to] include a BAC of .15 percent or more, or traveling 30 m.p.h. or more over the speed limit, or attempting to elude an officer of the law, or having a passenger under 21 years of age” — all of which result in more severe sanctions.

      2. Except in this case, the substantialness of the risk is highly questionable.

        1. It is?

      3. Professor Volokh,

        Unfortunately, the math isn’t quite that simple.

        For example, during the recent crisis, they cancelled school for a friend’s daughter. So, with no school, what does she do? She goes out ATV riding. Gets into an accident. Dies. If she’d been in school, it never would’ve happened.

        The bans and closures have a price as well, and it’s not purely economic either.

        1. Maybe. But it’s also possible that she would have ridden at another time instead (at some point, you have had enough ATV riding and want to do something else) and could have gotten into an accident then. Or she could have gotten into an accident going to school. So you can’t look at her death and automatically assume it’s a cost of cancelling school.

          1. But for “social distancing”, there well might have been an adult present who would have cautioned her on the way she was operating the ATV.

      4. Prof Volokh, prior to this panic, were chicken pox parties and measles parties considered “endangering” a child? Those are far better analogies than drunk driving.

        Based on all the data available so far, coronavirus, like measles and chicken pox, is highly contagious to all ages BUT far more dangerous if you contract it as an elder than as a child. It is arguably irresponsible to endanger your child by withholding the opportunity to get and recover from the disease while his/her immune system is at its strongest.

        By that logic, the state might prevail on their charges of violation of the governor’s order but should summarily lose on their charges of child endangerment. Endangerment requires exposure to an element of harm higher than the status quo. Coronavirus is not going away. Having evolved, it now exists. Expecting that you can isolate your child from it in perpetuity is irrational.

        1. All those childhood diseases have significant morbidity including death. While at one time, getting it over with, might have been a rational response that is no longer the case. Vaccinations–with much lower morbidity–are available to prevent the disease, so maybe having those parties should be considered child endangerment. Also it is worth noting that the vaccinations engage the immune system just as the viruses do.

    2. I have many family members and friends in that community. Almost everyone had or currently has the symptoms of Wuhan virus infection. One, an elderly woman, has been on a respirator for days, and another, a young man in his forties, has been bedridden, almost unable to eat or otherwise function, since Friday – but the system is so overloaded that his physician told him, absent breathing difficulties, to ride it out at home.

      The normative ruling in the community is that anybody who does not follow medical advice, including avoiding gatherings, has the law of a rodeif – that is, a pursuer. I.e., that person is considered as if he/she is chasing somebody with intent to commit mayhem, and may be stopped at any price. This includes, in these circumstances, informing the authorities of violations.

      There are, as always, individuals or groups within the community who feel that they know better. Unfortunately. I cry.

      So yes, the child endangerment argument seems to be valid.

  3. Given that the risk to children from Covid19 is so low, protecting children was not the reason for these charges. The prosecutors would have charged the defendants with something for hosting a gathering, even if there were no children present. They are pressing child endangerment charges because the penalty is more severe. However, people routinely do things that are of much higher risk to children without being charged. As such, this is not how N.J.S.A. 9:6-1 should be used.

    1. And also because it’s easier and quicker for the government to punish the parents by kidnapping their children than it is for them to get a criminal conviction.

      1. Maybe not right now — the check on them is places to put the children, and those might be in short supply right now.

  4. My understanding is that the bans on gatherings are designed to limit the spread of the disease, and not to protect the specific individuals in the gathering. The information currently available suggests that risk to children is fairly low.

    Having a large gathering during a pandemic is certainly risky for other reasons, and more information will certainly come out, but it’s not clear that the gathering endangered the children.

    1. The risk to young people is very low but putting them in a situation where they are rubbing elbows with multitudes of people heightens the risk appreciably. I think the child endangerment charge is warranted

  5. “”The men & women of the Lakewood Police Department have done an exceptional job in the face of a public health crisis.”

    The jury — the taxpayers of said Township of Lakewood — hasn’t spoken yet, and my guess is that it will be a while before the Lakewood PD gets any new cruisers. That’s what these tin-horn despots don’t realize — while their emergency powers will eventually end, the visceral contempt they have generated will remain for decades.

    The “child endangerment” charge is interesting on three levels — first that in most states, police officers are “mandated reporters” which means that they have to file a report with the state’s Child Protective people, who (at least in theory) are obligated to investigate it. That’s far worse than being arrested because Child Protective never close a file on parents — ever. So if one of those children falls off a bicycle two years from now (which does happen) and they take the child to the hospital (as loving parents do), they stand a significant risk of loosing custody of all their children on the presumption of child abuse.

    Second, the state has the burden of proving, beyond a reasonable doubt, that they actually endangered the children. That’s difficult to do because outside of drunken driving (where the presumption is that the officer prevented a crash), you have to prove that the child inevitably would have been seriously injured if the conduct had continued, but wouldn’t have if it didn’t. Hence NJ has to prove (a) that the children would have caught the Wuhan Flu if those particular people were permitted to remain assembled, but wouldn’t have otherwise.

    Third, a “by-the-book” child endangerment investigation includes a private interview of each child — in violation of social distancing rules. By a social worker who is every bit as likely to be a Wuhan vector as the guests at the verboten gathering. Which (a) raises the question of which is the greater risk to the child as well as (b)kettle pleading in that the state is concurrently alleging parental endangerment for the exact same thing the state itself is demanding (and has) the right to do.

    Hence while I see why this charge was included along with the Constitutionally-shaky other one, I think the State of NJ is going to have a fun time trying to get a conviction out of this.

    And as to the Governor, she’s essentially campaigning for her yet-unnamed opponent in the next election. People may comply with her fiats, but they aren’t going to forget their visceral resentment….

    1. CPS, and the related medical field of child abuse pediatrics, is another area of bureaucracy that is out of control. Hopefully we can do some reigning in when everything gets back to normal.

      1. We already were on the edge of an age of populism before this happened, and this gulag-approach is going to ignite it with avengeance.

    2. This comment section reminds me of a Ron Paul rally I attended.

      At first, a few hesitant, guarded people entered the ballroom, scattering among the seats in a mid-sized hotel ballroom. They kept to themselves, wearing their relatively unusual anti-government shirts and hats, looking downward or warily.

      After a time, enough people arrived that some attendees were compelled to sit relatively to close to one another. Some of these loners began to converse, still hesitantly, even sheepishly, originally talking mostly about hometowns, traffic, and other light subjects.

      As they began to converse, some began to talk about politics, or public affairs, and came to recognize that the other people were not necessarily hostile to their views. They brightened, transforming from what Springsteen called the ‘dog that’s been beat too much, ’til you spent half your time just covering up’ into animated, smiling conversationalists, sharing opinions and information.

      The room became loud, boisterous, and full of smiles. They were feeling ‘normal,’ which was an unusual and apparently welcome circumstance. Eventually, the guy responsible for priming the crowd reached the podium but he didn’t need to — and couldn’t — do much. The crowd had self-actuated.

      By the time Ron Paul had ended his speech with assurances that ‘we will take back this country’ and ‘we will win this election,’ the crowd was ahead of him, chanting and dancing and reveling in the certainty that Ron Paul would be the next president of the United States.

      It was then that I recognized that this period of perceived normalcy was about to end for this group, because their convictions concerning Ron Paul’s electoral prospects were delusional and they would soon leave the auditorium and return to being disaffected, rejected misfits at society’s fringe.

      But they had a nice couple of hours of respite — thinking that the room they inhabited was the real world, a world in which they were accepted and relevant and mainstream, excited by the prospect of winning after a lifetime of being losers — and I was happy for them.

      This comment section is a lot like that hotel ballroom.

      1. You spelled Bernie Sanders’s name wrong.

        I mean, really, let’s face it. This could be said about pretty much any political rally.

        1. Most political rallies involve a candidate with a realistic chance to win.

          Ron Paul’s were not among them.

          Rallies of longshot candidates tend to involve people with a realistic understanding of the situation.

          Your argument is not persuasive.

      2. Clingers live rent free in your head apparently. Every comment is about the clingers.

        1. You are the only person to use “clinger” or “clingers” in this discussion.

          Other than that, great comment, you half-educated bigot.

      3. Ron Paul is part of why Donald Trump is POTUS….

    3. …the state has the burden of proving, beyond a reasonable doubt, that they actually endangered the children…you have to prove that the child inevitably would have been seriously injured if the conduct had continued

      I don’t know a lot about child endangerment, but I do know enough to know your statement of the law is not true.

    4. Euthanize the children. It’s the only way to guarantee they will never be abused.

    5. “you have to prove that the child inevitably would have been seriously injured if the conduct had continued, but wouldn’t have if it didn’t. ”

      Dumbest assertion made in America today . . . or, at least, tied for that honor.

      Do you genuinely believe any of what you write?

      1. I could have worded it better, but exactly how do YOU define “beyond reasonable doubt”?

        1. You couldn’t have worded it worse. The problem isn’t the definition of “reasonable doubt.” (Which you did not in fact define) The problem is your idea of the elements of child endangerment.

    6. “`That’s difficult to do because outside of drunken driving (where the presumption is that the officer prevented a crash), you have to prove that the child inevitably would have been seriously injured if the conduct had continued, but wouldn’t have if it didn’t.“`Spoiler alert: no, you don’t.

    7. That’s difficult to do because outside of drunken driving (where the presumption is that the officer prevented a crash), you have to prove that the child inevitably would have been seriously injured if the conduct had continued, but wouldn’t have if it didn’t.

      Spoiler alert: no, you don’t.

      (Edited to fix formatting.)

    8. And as to the Governor, she’s essentially campaigning for her yet-unnamed opponent in the next election. People may comply with her fiats, but they aren’t going to forget their visceral resentment….

      Governor Murphy is male; no idea what you’re talking about.

  6. The “child endangerment” charge was thrown in, so that they won’t challenge the Governor’s mandate.

  7. Some friends and I had a small-sided game of soccer yesterday morning, and the Rockville Police showed up to make sure we were in compliance with the order issued by Maryland Governor Hogan limiting gatherings to no more than ten.

    They were reasonable about it, almost apologetic, and we were reasonable about it. We bring multiple nets and multiple balls so that we have no one game larger than the lockdown order allows. They seemed OK with our playing in the future so long as we live by the gathering limit

    I take the show of enforcement force in Lakewood to be sending a message to the community. Any one enforcement action could be condemned as overkill.

  8. If I’m doing it right, this appears to be the statute that they are accused of violating. I don’t see how they violated it, but I may be missing something.

    1. Agree that appears to be the relevant bottom-line statute (you start with Section 2C:24-4 – Endangering welfare of children, which defines one form of endangerment based on conduct described in Section 9:6-1). I’d imagine they’re relying on the catch-all language near the end: “failure to do or permit to be done any act necessary for the child’s physical or moral well-being.” No mischief to be had there.

  9. The politically correct punishment should be that all of the children should be adopted into the families of illegal aliens and restraining orders entered against the parents from ever having contact with them at all.

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