Liberty police sued over arrest for foul language; man arrested for defacing speeding ticket

Posted 9/30/09

Liberty police sued over foul language arrest

Man busted for defacing speeding ticket

By FRITZ MAYER

LIBERTY, NY — Village of Liberty police officials were not amused when, in August of …

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Liberty police sued over arrest for foul language; man arrested for defacing speeding ticket

Posted

Liberty police sued over foul language arrest

Man busted for defacing speeding ticket

By FRITZ MAYER

LIBERTY, NY — Village of Liberty police officials were not amused when, in August of 2012, a 23-year-old man from Connecticut crossed out the word “Liberty” on a speeding ticket and replaced it with the word “tyranny.” Further, the man, Willian Barboza, wrote a foul message of five words on the ticket that could be seen as insulting to women in the village.

The ticket and fine were sent through the mail, but town judge Brian Rourke did not accept the payment and ordered that Barboza must appear in court. When Barboza showed up, he was arrested and prosecuted under a New York State law called the Aggravated Harassment Statute.

The arrest was carried out by detective Steven D’Agata and police officer Melvin Gorr, both of the Village of Liberty Police Department. Rourke recused himself from the case, and it was transferred to the Town of Fallsburg court.

The related provision of the Aggravated Harassment Statute reads, “A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she... communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.”

But the statute is controversial, and Town of Fallsburg justice Ivan Kalter dismissed the charge in March 2013, writing, “Without doubt the Defendant’s comment was crude, vulgar, inappropriate, and clearly intended to ‘annoy.’ Nevertheless, it is not a threat, it does not contain ‘fighting words’, or create an ‘imminent danger’… While it might seem to fall within the four corners of the aforesaid statute, it is nevertheless subservient to the First Amendment of the United States Constitution, which provides for and allows a broad range of ‘free speech’ in the nature of opinion and public comment... No citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected.”

At some point the New York Civil Liberties Union got involved in the matter, and on June 12 that organization, along with the law firm Bergstein & Ullrich, filed a lawsuit against the two officers who carried out the arrests, seeking compensation.

The lawsuit says, “Plaintiff brings this action under the First and Fourth Amendments to the United States Constitution, seeking a finding that he was falsely arrested and maliciously prosecuted for engaging in protected speech. He also seeks damages for pain and suffering and humiliation. In addition, plaintiff seeks a judicial declaration in the course of a liability finding that Penal Law § 240.30(1)(a) is unconstitutional on its face insofar as it reaches ‘annoying’ or ‘alarming’ speech.”

The lawsuit says that various courts have found the law to be wanting. It says, “In 1997, one judge of this Court found the provision to be ‘utterly repugnant to the First Amendment of the United States Constitution and also unconstitutional for vagueness.’ In 2003, another judge of the court warned that ‘state and local police officers and prosecutors would be well-advised... to cease arrests and prosecutions under this section.’”

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