A crime to annoy police? Law is sure to get the county sued

Gary Craig | Democrat and Chronicle

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Two weeks after the Monroe County Legislature passed a law criminalizing the "annoyance" or harassment of police and emergency responders, there is one key question: How long before the county is sued?

County Executive Cheryl Dinolfo plans to sign the law, according to county officials. That will codify the anti-harassment statute, which includes a sentence of up to a year in jail and up to a $5,000 fine.

There will be a 2 p.m. hearing on the law at the County Legislature chambers on Dec. 2. The bill passed on a party line vote — supported by Republicans and opposed by Democrats.

Supporters say the bill was borne out of increasing harassment of first responders, but the constitutionality of the law will certainly be tested if it goes into effect.

"I do expect the county to be sued over it," said the Rev. Lewis Stewart, president of the United Christian Leadership Ministries of western New York. "If I can lead that fight for a lawsuit over it, I will."

The Monroe County Sheriff's Office was not consulted about the legislation, according to its counsel, Paul Ciminelli. Ciminelli said he is preparing a response from the office for Sheriff Todd Baxter to consider.

Baxter is out of town this week.

"It's clearly a violation of the First Amendment," said Iman Abid, the director of the regional chapter of the New York Civil Liberties Union. "I'm really disturbed that this was passed so quickly without giving the public the chance to respond."

There are numerous legal precedents showing that actions that a police officer might find annoying or bothersome, if they do not reach a level of physicality or impede with police activities, are constitutional.

The lack of definition in the statute will likely make it ripe for legal challenge.

"What do we define as being annoying?" Abid said. "The legislation itself is very short."

Why the law?

Former Rochester Deputy Police Chief Scott Peters said he has mixed thoughts about the law, but sees a need for it.

"People who previously would not be willing to interfere in an arrest situation, they've almost been emboldened and they really don't respect the line that was there before," he said. "But we're trained to deal with that stuff, and we're also equipped to deal with that stuff."

Peters said he does think there needs to be additional legal protections for firefighters and emergency responders who sometimes arrive at a volatile scene before police and find themselves hindered by bystanders or individuals involved in a quarrelsome incident.

"They should be worried about doing their job instead of watching their backs," Peters said.

There are already laws against obstructing the actions of police, firefighters, or emergency personnel. However, Peters said, those laws can be tough to enforce if a police officer is not on the scene to witness the obstruction.

"Unless we're actually watching it and seeing it going that way, it's hard to make an arrest," he said.

Retired firefighter Sean McCabe, who headed a firefighters' union, said the law will help provide security for emergency personnel.

"It is a tool in the box to help keep responders safe when they are performing their service (and) jobs for individuals in need," he said.

Some opponents of the law see it as a statute that will be wielded more in low-income communities and against people of color.

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"This is taking us back to the Jim Crow era rationalizations," said the Rev. Myra Brown, the senior pastor at Spiritus Christi Church in downtown Rochester and a longtime activist in social justice circles. "We lynched people in the Jim Crow era for these reasons — innocent people for annoying authority, for alarming them."

At a news conference Friday, Rev. Stewart and other local activists encouraged Dinolfo not to sign the legislation.

Is it constitutional?

Only two people spoke the evening the Legislature passed the law by a 17-10 vote, though the small number of speakers was driven by the quick push of the legislation, some activists say.

Local defense lawyer Mark Foti was one of the speakers, and he highlighted for lawmakers past New York cases in which similar statutes were deemed unconstitutional.

"This is probably even broader language than what has been found unconstitutional" in the other cases, Foti said in an interview Friday.

The law will likely have to be wielded first before it can be legally challenged. And, it's clear that when it is, lawyers will be ready to test its legal foundations.

"It's nonsensical that we can't preempt all the litigation that's to come," Foti said.

County spokesman Jesse Sleezer said Dinolfo is intent on signing the legislation because of the Legislature's vote and support she has heard from law enforcement.

Sleezer said the county law department would have been involved in drafting the proposed legislation but he does not know of any available records or memos in which the lawyers detailed their opinions.

Did police accountability board play a role?

In this month's elections, city voters overwhelmingly approved a new police accountability board which will increase independent oversight of alleged police misconduct. That new structure is expected to face legal challenges from the police union.

While the anti-harassment law and the new police board were different measures — one passed by a legislative body, one by a citizen referendum — many see a nexus between the two. Activists question whether the anti-harassment law is a response to the newly altered oversight of allegations of police misconduct, while police see an environment in which they often face disrespect and provocation while doing their jobs.

"In the last couple of years, we're seeing a general lowering of respect for police officers," Peters said.

Rev. Stewart said his organization and others, while supportive of the police accountability board, are also working to improve relations with police and citizens. The problem is often on the police side, he said, and how some officers are unable to deal with those who challenge whether an arrest or police intervention is warranted.

"What kind of county are we living in in which a cop may choose to arrest a person because he may interpret one's actions as annoyance?" Stewart said in an interview. "People have a right to question police officers if they are acting beyond the boundary or scope of legal procedure."

But how the anti-harassment legislation fits into the terrain of police-community relations likely will not be the key factor deciding its future. Instead, the legal bedrock of the law is sure to be questioned.

"Whether we like it or not, we have a right to be a jerk and it just can't be criminalized," Foti said.

GCRAIG@Gannett.com