S T A T E O F N E W Y O R K ________________________________________________________________________ 5602--A 2011-2012 Regular Sessions I N S E N A T E June 6, 2011 ___________ Introduced by Sens. ZELDIN, BALL, GRIFFO -- read twice and ordered printed, and when printed to be committed to the Committee on Veter- ans, Homeland Security and Military Affairs -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the military law, in relation to the regulation of protests at military funerals THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The military law is amended by adding a new section 255 to 2 read as follows: 3 S 255. REGULATION OF PROTESTS AT MILITARY FUNERALS. 1. LEGISLATIVE 4 INTENT. THE LEGISLATURE FINDS AND DETERMINES THAT ALTHOUGH IT IS IMPOR- 5 TANT FOR OUR STATE'S CITIZENS TO BE ABLE TO EXERCISE THEIR CONSTITU- 6 TIONALLY PROTECTED RIGHT TO FREE SPEECH, THERE IS ALSO A COMPELLING 7 STATE INTEREST IN PRESERVING AND PROTECTING THE FAMILIES AND FRIENDS OF 8 DECEASED MILITARY PERSONNEL, ESPECIALLY AT SUCH A SOLEMN TIME AS THE 9 DECEASED MILITARY PERSONNEL'S FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL OR 10 PROCESSION TO OR FROM THE SAME. 11 THE LEGISLATURE FURTHER FINDS AND DETERMINES THAT IN ORDER TO BALANCE 12 THE CONSTITUTIONALLY PROTECTED RIGHT TO FREE SPEECH, AND THE COMPELLING 13 STATE INTEREST IN PRESERVING AND PROTECTING THE MOURNING FAMILIES AND 14 FRIENDS OF DECEASED MILITARY PERSONNEL, THE STATE POLICE POWERS, AND 15 THOSE OF ITS LOCALITIES, MAY BE EMPLOYED TO PROVIDE SUFFICIENT 16 PROTECTION OF THE FAMILIES AND FRIENDS OF SUCH DECEASED MILITARY PERSON- 17 NEL, AT SUCH A SOLEMN TIME AS THE DECEASED MILITARY PERSONNEL'S FUNERAL, 18 MEMORIAL SERVICE, WAKE, BURIAL OR PROCESSION TO OR FROM THE SAME. 19 THE LEGISLATURE FURTHER FINDS AND DETERMINES THAT IN ADDITION TO ANY 20 STATE PROHIBITION WHICH MAY BE IMPOSED UNDER THE PENAL LAW, WITH RESPECT 21 TO THE EXERCISE OF FREE SPEECH WITHIN A CERTAIN DISTANCE FROM A FUNERAL, 22 MEMORIAL SERVICE, WAKE, BURIAL OR PROCESSION TO OR FROM THE SAME, THAT EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10958-03-1 S. 5602--A 2 1 THERE IS ALSO A COMPELLING STATE INTEREST IN PROVIDING FOR A SAFETY AND 2 PROTECTION BUFFER ZONE, WITHIN WHICH THE EXPRESSION OF SUCH FREE SPEECH 3 RIGHTS MAY ONLY BE EXERCISED, PURSUANT TO A CONTROLLED, REGULATED, 4 PERMITTED SYSTEM, IN ORDER THAT THE PUBLIC PEACE AND SAFETY OF THE MOUR- 5 NERS, PROTESTERS, AND THE GENERAL PUBLIC CAN BE EFFECTIVELY MAINTAINED. 6 THE LEGISLATURE FURTHER FINDS AND DETERMINES THAT IT IS THE INTENT OF 7 THIS LEGISLATION TO PROVIDE FOR THE STANDARDS OF SUCH SAFETY AND 8 PROTECTION BUFFER ZONES, AND THAT IN SO DOING, SEEKS TO ESTABLISH THE 9 REQUIRED BALANCE BETWEEN THE ABILITY OF OUR STATE'S CITIZENS TO EXERCISE 10 THEIR CONSTITUTIONALLY PROTECTED RIGHT TO FREE SPEECH AND THE COMPELLING 11 STATE INTEREST IN PRESERVING AND PROTECTING THE MOURNING FAMILIES AND 12 FRIENDS OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF THE 13 UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA. 14 2. MILITARY FUNERAL BUFFER ZONE PUBLIC SAFETY PROGRAM. ANY CITY, TOWN, 15 VILLAGE OR COUNTY, MAY, BY LOCAL LAW, ESTABLISH A MILITARY FUNERAL BUFF- 16 ER ZONE PUBLIC SAFETY PROGRAM. SUCH PROGRAM SHALL REQUIRE THAT ANY 17 CITIZEN OR GROUP THAT CONDUCTS A PROTEST WITHIN TWO THOUSAND FIVE 18 HUNDRED FEET OF A FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL OR PROCESSION 19 OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF THE UNITED STATES 20 OR THE FORCE OF THE ORGANIZED MILITIA, MAY DO SO ONLY AFTER FIRST 21 OBTAINING A PERMIT FROM THE NEW YORK STATE DIVISION OF MILITARY AND 22 NAVAL AFFAIRS (HEREINAFTER "DIVISION"). UPON THE ISSUANCE OF A PERMIT 23 UNDER THIS SUBDIVISION TO CONDUCT SUCH A PROTEST IN A LOCALITY, THE 24 DIVISION, IN ADDITION TO WHATEVER REQUIREMENTS IT SHALL ESTABLISH BY 25 REGULATION, SHALL REQUIRE THAT: 26 A. THE CITIZEN OR GROUP FILE AN APPLICATION FOR A PERMIT TO CONDUCT A 27 PROTEST IN THE VICINITY OF A FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL OR 28 PROCESSION OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF THE 29 UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA, WITH THE DIVISION, 30 IN THE MANNER AND FORM AS MAY BE REQUIRED BY THE DIVISION PURSUANT TO 31 REGULATION, NOT LESS THAN SEVEN BUSINESS DAYS PRIOR TO THE DATE OF THE 32 PROTEST; 33 B. THE CITIZEN OR GROUP FILING SUCH APPLICATION, SHALL AT THE TIME OF 34 THE FILING OF SUCH APPLICATION, ALSO POST A PUBLIC SECURITY BOND WITH 35 THE DIVISION, IN THE MANNER AND FORM AS MAY BE REQUIRED BY THE DIVISION 36 PURSUANT TO REGULATION, IN THE AMOUNT AS FOLLOWS: 37 (I) FOR A PROTEST WITH ONE TO FIVE PERSONS, FIVE THOUSAND DOLLARS; 38 (II) FOR A PROTEST WITH SIX TO TEN PERSONS, SEVEN THOUSAND FIVE 39 HUNDRED DOLLARS; 40 (III) FOR A PROTEST WITH ELEVEN TO TWENTY-FIVE PERSONS, TEN THOUSAND 41 DOLLARS; 42 (IV) FOR A PROTEST WITH TWENTY-SIX TO FIFTY PERSONS, FIFTEEN THOUSAND 43 DOLLARS; 44 (V) FOR A PROTEST WITH FIFTY-ONE TO SEVENTY-FIVE PERSONS, TWENTY THOU- 45 SAND DOLLARS; 46 (VI) FOR A PROTEST WITH SEVENTY-FIVE TO ONE HUNDRED PERSONS, 47 TWENTY-FIVE THOUSAND DOLLARS; AND 48 (VII) FOR A PROTEST WITH OVER ONE HUNDRED PERSONS, TWENTY-FIVE THOU- 49 SAND DOLLARS PLUS AN ADDITIONAL AMOUNT PER PROTESTOR AS SHALL BE ESTAB- 50 LISHED PURSUANT TO REGULATION BY THE DIVISION; 51 C. WITHIN THREE BUSINESS DAYS OF THE FILING OF AN APPLICATION PURSUANT 52 TO PARAGRAPH A OF THIS SUBDIVISION, TOGETHER WITH THE POSTING OF THE 53 REQUIRED SECURITY BOND PURSUANT TO PARAGRAPH B OF THIS SUBDIVISION, THE 54 DIVISION SHALL REVIEW SUCH APPLICATION AND SECURITY BOND, AND IF SUCH 55 APPLICATION AND BOND SATISFY ALL THE REQUIREMENTS OF THIS SECTION, AS 56 WELL AS ALL THE REQUIREMENTS THAT THE DIVISION MAY FURTHER IMPOSE BY S. 5602--A 3 1 REGULATION, THEN THE DIVISION SHALL ISSUE TO THE APPLICANT, A PERMIT TO 2 CONDUCT SUCH PROTEST, AND SUCH PERMIT SHALL EXPRESSLY, AND IN DETAIL, 3 SET FORTH THE TIME, PLACE AND MANNER OF RESTRICTIONS OF THE PROTEST AS 4 ALLOWABLE BY LAW; 5 D. UPON ISSUING A PERMIT TO CONDUCT A PROTEST UNDER THIS SECTION, THE 6 DIVISION SHALL ALSO TRANSMIT A COPY OF THE PERMIT, TOGETHER WITH THE 7 APPLICATION FOR THE SAME, TO THE LOCALITY IN WHICH THE APPLICANT SEEKS 8 TO CONDUCT THE PROTEST; 9 E. UPON RECEIVING A PERMIT FROM THE DIVISION, AND NOT LESS THAN 10 FORTY-EIGHT HOURS PRIOR TO THE CONDUCT OF THE PROTESTS, THE APPLICANT 11 SHALL ALSO FILE WITH EACH CITY, TOWN, VILLAGE, AND COUNTY, IN WHICH THE 12 PROTEST IS AUTHORIZED TO OCCUR, A COPY OF THE PERMIT ISSUED BY THE DIVI- 13 SION; 14 F. THE PERMIT ISSUED BY THE DIVISION SHALL PROVIDE THAT THE PROTEST, 15 FOR WHICH A PERMIT WAS ISSUED BY THE DIVISION, AND FOR WHICH A SECURITY 16 BOND WAS FILED, SHALL BE CONDUCTED EXCLUSIVELY IN THE MANNER, PLACE AND 17 TIME, AS SPECIFIED AND AUTHORIZED IN THE PERMIT; 18 G. IN NO EVENT SHALL ANY PROTEST EVER BE CONDUCTED, NOR SHALL THE 19 DIVISION EVER ISSUE A PERMIT FOR THE CONDUCT OF ANY PROTEST, WITHIN FIVE 20 HUNDRED FEET OF ANY FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL, OR PROC- 21 ESSION TO OR FROM THE SAME, OF A MEMBER OF THE ACTIVE MILITARY SERVICE 22 OF THE UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA; 23 H. WITHIN THIRTY DAYS OF THE DATE OF THE PROTEST FOR WHICH THE PERMIT 24 WAS ISSUED BY THE DIVISION, THE GOVERNING BODY OF THE LOCALITY IN WHICH 25 SUCH PROTEST WAS HELD, BY A MAJORITY VOTE OF THE MEMBERS OF SUCH GOVERN- 26 ING BODY, SHALL MAKE A DETERMINATION AS TO WHETHER SUCH PROTEST COMPLIED 27 IN ALL RESPECTS WITH ALL THE REQUIREMENTS OF THE PERMIT, AND SHALL THER- 28 EUPON NOTIFY THE DIVISION OF SUCH DETERMINATION; 29 I. UPON THE NOTIFICATION BY A LOCALITY THAT A PROTEST WAS HELD WHICH 30 COMPLIED IN ALL RESPECTS WITH ALL THE REQUIREMENTS OF THE PERMIT, THE 31 DIVISION SHALL, WITHIN THIRTY DAYS, RELEASE AND REFUND THE SECURITY BOND 32 FILED BACK TO THE APPLICANT, UNLESS REQUIRED TO DO OTHERWISE BY A COURT 33 OF COMPETENT JURISDICTION; 34 J. IN THE EVENT THAT AN APPLICANT FILES A SECURITY BOND WITH THE DIVI- 35 SION, AND THEREAFTER FILES A WITHDRAWAL OF THE APPLICATION, DUE EITHER 36 TO THE FACT THAT THE PROTEST NEVER OCCURRED OR THAT THE APPLICANT NO 37 LONGER DESIRED TO HOLD A PROTEST, THE DIVISION, UPON FINDING THAT SUCH 38 APPLICATION FOR WITHDRAWAL IS MERITORIOUS, SHALL, WITHIN THIRTY DAYS, 39 RELEASE AND REFUND THE SECURITY BOND FILED BACK TO THE APPLICANT, UNLESS 40 REQUIRED TO DO OTHERWISE BY A COURT OF COMPETENT JURISDICTION; 41 K. IN THE EVENT THAT THE GOVERNING BODY OF THE LOCALITY IN WHICH SUCH 42 PROTEST WAS HELD MAKES A DETERMINATION, BY A MAJORITY VOTE OF THE 43 MEMBERS OF SUCH GOVERNING BODY, THAT SUCH PROTEST DID NOT COMPLY IN ALL 44 RESPECTS WITH ALL THE REQUIREMENTS OF THE PERMIT, THEN THE DIVISION, 45 PURSUANT TO REGULATIONS, SHALL CONDUCT A HEARING, WHEREUPON IT SHALL 46 MAKE A DETERMINATION AS TO WHETHER THE APPLICANT SHALL FORFEIT ALL OR 47 ANY PART OF THE BOND, WITH THE PROCEEDS OF THE BOND BEING AWARDED TO: 48 (I) THE LOCALITY; 49 (II) A PERSON OR PERSONS CONNECTED WITH THE FUNERAL, MEMORIAL SERVICE, 50 WAKE, BURIAL OR PROCESSION WHICH WAS THE SUBJECT OF THE PROTEST; 51 (III) THE APPLICANT; OR 52 (IV) ANY COMBINATION OF THE ABOVE; AND 53 L. IN THE EVENT THAT THE DIVISION MAKES A DETERMINATION THAT ALL OR 54 ANY PART OF THE SECURITY BOND SHALL NOT BE RETURNED AND REFUNDED TO THE 55 APPLICANT, THE DIVISION SHALL MAKE PAYMENT TO THOSE PARTIES THAT IT 56 DETERMINED SHOULD RECEIVE THE PROCEEDS OF SUCH SECURITY BOND, WITHIN S. 5602--A 4 1 THIRTY DAYS OF MAKING SUCH DETERMINATION, UNLESS REQUIRED TO DO OTHER- 2 WISE BY A COURT OF COMPETENT JURISDICTION. 3 3. THE DIVISION, AND ANY LOCALITY, SHALL NOT REQUIRE A PERMIT, OR 4 SECURITY BOND, FOR ANY PROTEST OF ANY FUNERAL, MEMORIAL SERVICE, WAKE, 5 BURIAL, OR PROCESSION TO OR FROM THE SAME, OF A MEMBER OF THE ACTIVE 6 MILITARY SERVICE OF THE UNITED STATES OR THE FORCE OF THE ORGANIZED 7 MILITIA, WHERE SUCH PROTEST IS CONDUCTED EXCLUSIVELY AT A DISTANCE OF 8 MORE THAN TWO THOUSAND FIVE HUNDRED FEET FROM ANY SUCH FUNERAL, MEMORIAL 9 SERVICE, WAKE, BURIAL, OR PROCESSION TO OR FROM THE SAME. 10 4. VIOLATIONS OF MILITARY FUNERAL BUFFER ZONE PUBLIC SAFETY PROGRAM. 11 ANY CITY, TOWN, VILLAGE OR COUNTY, WHICH HAS BY LOCAL LAW, ESTABLISHED A 12 MILITARY FUNERAL BUFFER ZONE PUBLIC SAFETY PROGRAM, WHEREBY SUCH LOCALI- 13 TY HAS REQUIRED THAT ANY CITIZEN OR GROUP THAT CONDUCTS A PROTEST IN THE 14 VICINITY OF A FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL, OR PROCESSION TO 15 OR FROM THE SAME, OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF 16 THE UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA, MUST FIRST 17 OBTAIN A PERMIT FROM THE DIVISION, IN ORDER TO CONDUCT SUCH A PROTEST, 18 UPON RECEIVING A PERMIT, UNDER THIS SECTION TO CONDUCT SUCH A PROTEST, 19 MAY POST A POLICE OFFICER FROM SUCH CITY, TOWN, VILLAGE OR COUNTY, AT 20 THE SITE OF THE PROTEST, IN ORDER TO ASSURE THE MAINTENANCE OF CIVIL 21 OBEDIENCE AND THE PUBLIC PEACE. IN THE EVENT THAT AFTER THE CONDUCT OF 22 SUCH PROTEST, A COURT OF THE CITY, TOWN, VILLAGE OR COUNTY DETERMINES 23 THAT THE PROTEST WAS EITHER INTENTIONALLY OR UNINTENTIONALLY NOT 24 CONDUCTED IN EXPRESS ACCORDANCE WITH THE PERMIT ISSUED BY THE DIVISION, 25 THEN SUCH COURT MAY IMPOSE A CIVIL PENALTY UPON EACH AND EVERY PROTESTER 26 WHO PARTICIPATED IN ANY PROTEST FOUND TO BE IN VIOLATION OF THE PERMIT 27 ISSUED BY THE DIVISION. THE AMOUNT OF SUCH CIVIL PENALTY SHALL NOT 28 EXCEED FIVE HUNDRED DOLLARS. THE INTENTIONAL VIOLATION BY A PROTESTER, 29 OF A PERMIT ISSUED BY THE DIVISION, SHALL BE A CLASS A MISDEMEANOR. 30 S 2. This act shall take effect immediately.