STATE OF NEW YORK
________________________________________________________________________
5602--A
2011-2012 Regular Sessions
IN SENATE
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 § 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, twenty-
47 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 § 2. This act shall take effect immediately.
