Editorial: County bill would chill free speech, peaceful protests

The Island Now

Nassau County Republicans responded earlier in the year to the Black Lives Matter movement’s calls for police reform in the wake of George Floyd’s murder in Minneapolis by joining a “Back the Blue” campaign.

The Republicans did acknowledge the need for some kind of reform following the killing of Floyd by a police officer in Minneapolis.

But they said the criticism against police had gone too far.

“The Blue Ribbon campaign is in response to the attempt by extreme groups to vilify all police for the actions of a tiny few,” said Nassau County Presiding Officer Richard Nicolello (R-New Hyde Park). “It is intended to show our men and women in law enforcement that we as a county and community appreciate the professionalism, dedication and courage of the overwhelming majority of men and women in blue.”

We would have wished the county Republicans had a similar level of concern for the 140 police officers injured when a mob inspired by President Donald Trump attacked the Capitol on Jan. 6 in an effort to overturn the election.

Or had expressed more interest in combating systemic racism against Blacks in this country. But at least the damage caused by the county Republicans’ campaign was limited.

That is not the case with a bill passed last week by the Nassau County Legislature which would allow first responders to sue any person who harasses, attacks or injures them while they are in uniform under the Nassau County Human Rights Law.

The bill – which passed with 12 votes in favor and six opposed – would allow police officers, firefighters and EMS workers to seek and collect financial and punitive damages, with civil penalties of $25,000 to the “aggrieved” first responders and up to $50,000 if the violations occurred during a “riot.”

And this time the bill was introduced by County Legislator Josh Lafazan, an independent who caucuses with the Democrats, and  Legislators Delia DeRiggi-Whitton, Arnold Drucker and Ellen Birnbaum, all of whom are Democrats.

They were joined by Republican legislators in the vote, proving that bipartisanship in Nassau County is overrated. Although to his credit Drucker ended up voting against the measure he co-sponsored after a raucous eight-hour debate.

Proponents argued that the bill offers additional protections to officers in the face of “destructive riots and lawlessness” targeting law enforcement officials following Floyd’s death in police custody last year.

“There is no justification for violence against first responders. And these bills will add further protection in law to protect Nassau County’s first responders as they protect us,” Lafazan told The Washington Post in what quickly became a national story.

But the supporters of the bill offered no examples of violence against first responders in Nassau County. Or examples of similar legislation anywhere else in America, including areas where there were instances of violence against first responders. Why not?

We do agree that there is no justification for violence against first responders – or anybody else for that matter. But there are already laws preventing violence against first responders and just about everybody else. They are called criminal laws and we are confident that police are getting ample protection under those laws.

Opponents also rightly complained that the bill sets a “dangerous” precedent that undermines free speech and reduces police accountability.

Just think back to the George Floyd case when numerous witnesses were yelling at police as Det. Derrick Chauvin killed Floyd by kneeling on his neck for more than nine minutes.

Would the crowd’s comments be considered harassment subject to civil penalties?

What if police responded to people protesting a possible case of excessive force by police outside the Nassau County Executive Building?

At what point would the crowd be harassing the police? And at what point might the protest be deemed a “riot,” subject to double the damages?

And what is the likelihood that groups more politically attuned to police will be charged rather than those supporting policies police oppose?

Will the county attorney say no to police who are members of politically powerful unions that provide valued endorsements and thousands in campaign contributions to county legislators?

Even more important is the chilling effect the fines will have on protesters. Who is going to want to protest a perceived injustice that might result in a civil suit that costs them up to $50,000?

Just the threat of a civil suit filed with taxpayer money will deter people from protesting.

And even if someone wins a civil suit, they still have to pay a lawyer. Legal fees and court fines are a distinction without a difference for most people – particularly those protesting the police.

All this while county taxpayers, including those accused, pick up the tab for police filing civil suits.

Opponents also pointed out that the legislation would make first responders a “protected class” under the county Human Rights Law, which bars discrimination based on factors including race, disability, general and sexual orientation.

Congresswoman Kathleen Rice, who previously served as Nassau County district attorney, said she strongly opposed the bill for this reason.

“I support policies to protect our police officers and other first responders,” Rice said in a news release. “But it is wrong to codify into law a chosen profession as an immutable human trait in the same manner as we classify race, nationality, gender, disability, and sexual orientation.

“This bill violates the spirit of the county’s Human Rights Law. And I have serious questions about its legality,” she added.

We agree.

Nassau County Executive Laura Curran, who had 30 days to approve or veto the legislation, asked state Attorney General Letitia James for an opinion before making a decision.

We believe Curran should not have waited before vetoing the legislation, but we give her credit for at least seeing if the bill could pass a court challenge down the road.

This still drew criticism from Nicolello, who said “the county executive is obviously looking for a pretext to veto the bill.”

Well, if upholding the First Amendment of the Constitution is a pretext we say that’s a pretty good pretext.

Nicolello also noted that “the county has a fully staffed county attorney’s office to advise the county executive.”

OK, county attorney’s office vs. former district attorney or current attorney general. Who would you pick? And we are sure the county will never again obtain outside counsel for any legal matters.

Surprise, surprise. Curran vetoed the bill on Tuesday after receiving an opinion from James’ office, acknowledging the “genuine concern” of community members “that the law would intimidate free citizens from engaging in peaceful demonstrations without fear of retaliation.”

Rick Sawyer, James’ special counsel for hate crimes, told Curran in a letter that the bill “presents constitutional questions serious enough to guarantee multiple court challenges to its validity.”

In other words, the county would need to waste taxpayer money in an effort to violate the public’s constitutional rights to free speech and public assembly.

If that is not enough, consider the rights of first responders vs. the rights of regular citizens.

The county legislation would allow first responders to file taxpayer-funded lawsuits against protesters at a time when victims of excessive force cannot seek damages against first responders because of the doctrine of qualified immunity.

This doctrine, which has drawn criticism across the political spectrum, basically protects police from all civil suits  – including for murder.

New York City became the first major city to ban qualified immunity for police in April, following in the footsteps of Colorado and New Mexico. Connecticut and Massachusetts have imposed more modest limits.

The New York City Police Benevolent Association admitted last week that getting rid of qualified immunity will encourage police to obey the law.

We haven’t heard of Nassau considering similar reforms, which is not surprising.

Nassau County was one of three of the 50 largest police forces in the country that did not widely equip their officers with body cameras before police agreed to wear them under a new contract.

And even then the county had to agree to pay Nassau’s already well-paid police $3,000 a year to wear what is now considered standard gear.

But for Nassau that was a step forward. We are thankful that Curran scuttled the first responder bill to avoid taking two or three steps back.

We only hope the Legislature will stop pandering to police and not try to override the veto.

 

 

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