By Patrick McAuliffe
In the midst of the surge in protests on BU’s campus, a new law is under consideration by Broome County legislators. This Thursday, November 21st, BC lawmakers will vote on a bill that makes “annoy[ing], alarm[ing], or threaten[ing]” emergency responders, including police officers, a criminal act – an “unclassified misdemeanor,” in fact. The penalties for this “harassment” are steep: up to one year in jail and/or up to a $5,000 fine. Unlike the progressives screaming in our most recent YouTube video), I want to look at this law calmly and rationally from both sides. Looking at the intentions of those that support and oppose it, and the likely outcome of such a law, will help us decide whether, by a certain standard that I think most people can get behind, it is a good law that should be enacted or a bad law that should be rejected.
Monroe County, my home county to the northwest, passed essentially this same law last week on the 14th, by a vote of 17-10, as per the National Review. However, the county executive Cheryl Dinolfo held off on signing it into law right away because of its divisive nature. At first glance, the “Annoy the Police” law, as we’ll refer to it for now, seems pretty reasonable. If officers, or any first responders (EMTs, firefighters, etc), are being distracted by troublemakers, they are prevented from doing the only job they are legally allowed to do. Lives could be put at risk and property could be damaged, not to mention endangering the responders themselves, who are human just like you and me. In the spirit of that sentiment, this law was born.
My biggest qualm, however, is the wording of the law. I’ve seen some progressive friends of mine post on Facebook about how this law will usher in the iron boot of fascism, and the most marginalized groups will take the brunt of it. There are similarities to how both this law and fascism operate, but it would be unrealistic to believe that we would be transported to the hellscape of Berlinhamton overnight. Still, I don’t mean to suggest that there shouldn’t be concerns about its implementation. Like with most laws designed to increase government power (whether intentionally or not), the wording about the nature of the precise crime is left vague, leaving much up to an individual officer’s discretion. When this law was passed in Monroe County, one Republican legislator assured (per the National Review) that “this law will be no different” from any other law, where law enforcement agents have discretion to prosecute or not.
Frankly, that isn’t reassuring in the slightest. A Democratic legislator in Monroe County took issue with the extremely vague wording, especially with the word “annoy.” Children are annoying; clingy friends are annoying; not finding parking on campus is annoying. Should any of those things be crimes, as defined under the “Annoy the Police” law? Beyond that, how does this conflict with our First Amendment right to free speech? The major, post-Bill of Rights limitation placed on free speech has been the “clear and present danger” clause interpreted by the Supreme Court in Schenck v. United States (1919). What is this exact scope of the “harassment” outlined by the “Annoy the Police” law, and does it equal enough of a threat as “shouting ‘Fire!’ in a crowded theater”?
Is there a compromise that can be reached that preserves the spirit of this law without leaving so much wiggle room for potential over-policing? One beneficial start would be attempting to define harassment beyond mere annoyance, alarm, or threats. Referring back to our Monroe Republican legislator from before, if this law really is no different from others, perhaps the intent of bystanders should be taken into account. Crimes consist of two parts that the defendant must have in order to be convicted: intent and action. Murder needs both the intent (purpose of actions is to cause death) and the action (actually killing someone) to be, legally speaking, “real” murder. Theft, from grand larceny to burglary to shoplifting, need both the intent (to steal) and the action (actually stealing something) to be, legally speaking, “real” theft. This two-part requirement is what makes scenarios like Minority Report or Soviet Russia’s Secret Police so chilling; crime isn’t crime without both parts, and either not having an intention to commit crime or not actually committing crime is what should protect a person from prosecution. When the law ignores either part of the criminal requirement, it throws itself out the window.
So, then, how can the “Annoy the Police” law be fixed? While an addition of the words “…with the intent to…” may preserve some of the freedoms of the First Amendment, the loudest voices on either side see no road to actually fixing it. Blue Lives Matter folks will defend it as is for their men and women in uniform, without seeing the inevitable consequences, and the radical progressives want to see it repealed entirely, without seeing the intentions behind it. I’ve only tried to start the discussion on the middle path, where the intentions are protected and the consequences are mitigated. There’s still a bit of time to contact your representative in the Broome County legislature before this Thursday, and to talk with your friends and loved ones in other counties and states faced with similar bills. Cooperation with “the other side” is a long game in today’s political climate, but learning from one another is what pushes us all forward.