S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3901

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              March 9, 2011
                               ___________

Introduced  by  Sens.  ZELDIN,  GRIFFO,  BALL,  SKELOS,  ALESI, BONACIC,
  DeFRANCISCO, FARLEY, FLANAGAN, FUSCHILLO, GALLIVAN, GOLDEN,  GRISANTI,
  HANNON,  JOHNSON,  LANZA, LARKIN, LAVALLE, LIBOUS, LITTLE, MARCELLINO,
  MARTINS, MAZIARZ, McDONALD, NOZZOLIO,  O'MARA,  RANZENHOFER,  RITCHIE,
  ROBACH,  SALAND,  SEWARD, YOUNG -- read twice and ordered printed, and
  when printed to be committed to the Committee  on  Veterans,  Homeland
  Security and Military Affairs

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:

  Section  1. The military law is amended by adding a new section 255 to
read as follows:
  S 255.  REGULATION OF PROTESTS AT MILITARY  FUNERALS.  1.  LEGISLATIVE
INTENT.  THE LEGISLATURE FINDS AND DETERMINES THAT ALTHOUGH IT IS IMPOR-
TANT FOR OUR STATE'S CITIZENS TO BE ABLE  TO  EXERCISE  THEIR  CONSTITU-
TIONALLY  PROTECTED  RIGHT  TO  FREE  SPEECH, THERE IS ALSO A COMPELLING
STATE INTEREST IN PRESERVING AND PROTECTING THE FAMILIES AND FRIENDS  OF
DECEASED  MILITARY  PERSONNEL,  ESPECIALLY  AT SUCH A SOLEMN TIME AS THE
DECEASED MILITARY PERSONNEL'S FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL OR
PROCESSION TO OR FROM THE SAME.
  THE LEGISLATURE FURTHER FINDS AND DETERMINES THAT IN ORDER TO  BALANCE
THE  CONSTITUTIONALLY PROTECTED RIGHT TO FREE SPEECH, AND THE COMPELLING
STATE INTEREST IN PRESERVING AND PROTECTING THE  MOURNING  FAMILIES  AND
FRIENDS  OF  DECEASED  MILITARY  PERSONNEL, THE STATE POLICE POWERS, AND
THOSE  OF  ITS  LOCALITIES,  MAY  BE  EMPLOYED  TO  PROVIDE   SUFFICIENT
PROTECTION OF THE FAMILIES AND FRIENDS OF SUCH DECEASED MILITARY PERSON-
NEL, AT SUCH A SOLEMN TIME AS THE DECEASED MILITARY PERSONNEL'S FUNERAL,
MEMORIAL SERVICE, WAKE, BURIAL OR PROCESSION TO OR FROM THE SAME.
  THE  LEGISLATURE  FURTHER FINDS AND DETERMINES THAT IN ADDITION TO ANY
STATE PROHIBITION WHICH MAY BE IMPOSED UNDER THE PENAL LAW, WITH RESPECT

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10109-02-1
              

S. 3901                             2

TO THE EXERCISE OF FREE SPEECH WITHIN A CERTAIN DISTANCE FROM A FUNERAL,
MEMORIAL SERVICE, WAKE, BURIAL OR PROCESSION TO OR FROM THE  SAME,  THAT
THERE  IS ALSO A COMPELLING STATE INTEREST IN PROVIDING FOR A SAFETY AND
PROTECTION  BUFFER ZONE, WITHIN WHICH THE EXPRESSION OF SUCH FREE SPEECH
RIGHTS MAY ONLY BE  EXERCISED,  PURSUANT  TO  A  CONTROLLED,  REGULATED,
PERMITTED SYSTEM, IN ORDER THAT THE PUBLIC PEACE AND SAFETY OF THE MOUR-
NERS, PROTESTERS, AND THE GENERAL PUBLIC CAN BE EFFECTIVELY MAINTAINED.
  THE  LEGISLATURE FURTHER FINDS AND DETERMINES THAT IT IS THE INTENT OF
THIS LEGISLATION TO  PROVIDE  FOR  THE  STANDARDS  OF  SUCH  SAFETY  AND
PROTECTION  BUFFER  ZONES,  AND THAT IN SO DOING, SEEKS TO ESTABLISH THE
REQUIRED BALANCE BETWEEN THE ABILITY OF OUR STATE'S CITIZENS TO EXERCISE
THEIR CONSTITUTIONALLY PROTECTED RIGHT TO FREE SPEECH AND THE COMPELLING
STATE INTEREST IN PRESERVING AND PROTECTING THE  MOURNING  FAMILIES  AND
FRIENDS  OF  A  DECEASED  MEMBER  OF  THE ACTIVE MILITARY SERVICE OF THE
UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA.
  2. MILITARY FUNERAL BUFFER ZONE PUBLIC SAFETY PROGRAM. ANY CITY, TOWN,
VILLAGE OR COUNTY, MAY, BY LOCAL LAW, ESTABLISH A MILITARY FUNERAL BUFF-
ER ZONE PUBLIC SAFETY PROGRAM.   SUCH PROGRAM  SHALL  REQUIRE  THAT  ANY
CITIZEN  OR  GROUP  THAT  CONDUCTS  A  PROTEST  WITHIN TWO THOUSAND FIVE
HUNDRED FEET OF A FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL OR  PROCESSION
OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF THE UNITED STATES
OR  THE  FORCE  OF  THE  ORGANIZED  MILITIA,  MAY DO SO ONLY AFTER FIRST
OBTAINING A PERMIT FROM THE NEW YORK  STATE  DIVISION  OF  MILITARY  AND
NAVAL  AFFAIRS  (HEREINAFTER  "DIVISION"). UPON THE ISSUANCE OF A PERMIT
UNDER THIS SUBDIVISION TO CONDUCT SUCH A  PROTEST  IN  A  LOCALITY,  THE
DIVISION,  IN  ADDITION  TO  WHATEVER REQUIREMENTS IT SHALL ESTABLISH BY
REGULATION, SHALL REQUIRE THAT:
  A. THE CITIZEN OR GROUP FILE AN APPLICATION FOR A PERMIT TO CONDUCT  A
PROTEST  IN THE VICINITY OF A FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL OR
PROCESSION OF A DECEASED MEMBER OF THE ACTIVE MILITARY  SERVICE  OF  THE
UNITED  STATES OR THE FORCE OF THE ORGANIZED MILITIA, WITH THE DIVISION,
IN THE MANNER AND FORM AS MAY BE REQUIRED BY THE  DIVISION  PURSUANT  TO
REGULATION,  NOT  LESS THAN SEVEN BUSINESS DAYS PRIOR TO THE DATE OF THE
PROTEST;
  B. THE CITIZEN OR GROUP FILING SUCH APPLICATION, SHALL AT THE TIME  OF
THE  FILING  OF  SUCH APPLICATION, ALSO POST A PUBLIC SECURITY BOND WITH
THE DIVISION, IN THE MANNER AND FORM AS MAY BE REQUIRED BY THE  DIVISION
PURSUANT TO REGULATION, IN THE AMOUNT AS FOLLOWS:
  (I) FOR A PROTEST WITH ONE TO FIVE PERSONS, FIVE THOUSAND DOLLARS;
  (II)  FOR  A  PROTEST  WITH  SIX  TO  TEN PERSONS, SEVEN THOUSAND FIVE
HUNDRED DOLLARS;
  (III) FOR A PROTEST WITH ELEVEN TO TWENTY-FIVE PERSONS,  TEN  THOUSAND
DOLLARS;
  (IV)  FOR A PROTEST WITH TWENTY-SIX TO FIFTY PERSONS, FIFTEEN THOUSAND
DOLLARS;
  (V) FOR A PROTEST WITH FIFTY-ONE TO SEVENTY-FIVE PERSONS, TWENTY THOU-
SAND DOLLARS;
  (VI)  FOR  A  PROTEST  WITH  SEVENTY-FIVE  TO  ONE  HUNDRED   PERSONS,
TWENTY-FIVE THOUSAND DOLLARS; AND
  (VII)  FOR  A PROTEST WITH OVER ONE HUNDRED PERSONS, TWENTY-FIVE THOU-
SAND DOLLARS PLUS AN ADDITIONAL AMOUNT PER PROTESTOR AS SHALL BE  ESTAB-
LISHED PURSUANT TO REGULATION BY THE DIVISION;
  C. WITHIN THREE BUSINESS DAYS OF THE FILING OF AN APPLICATION PURSUANT
TO  PARAGRAPH  A  OF  THIS SUBDIVISION, TOGETHER WITH THE POSTING OF THE
REQUIRED SECURITY BOND PURSUANT TO PARAGRAPH B OF THIS SUBDIVISION,  THE
DIVISION  SHALL  REVIEW  SUCH APPLICATION AND SECURITY BOND, AND IF SUCH

S. 3901                             3

APPLICATION AND BOND SATISFY ALL THE REQUIREMENTS OF  THIS  SECTION,  AS
WELL  AS  ALL  THE  REQUIREMENTS THAT THE DIVISION MAY FURTHER IMPOSE BY
REGULATION, THEN THE DIVISION SHALL ISSUE TO THE APPLICANT, A PERMIT  TO
CONDUCT  SUCH  PROTEST,  AND SUCH PERMIT SHALL EXPRESSLY, AND IN DETAIL,
SET FORTH THE TIME, PLACE AND MANNER OF RESTRICTIONS OF THE  PROTEST  AS
ALLOWABLE BY LAW;
  D.  UPON ISSUING A PERMIT TO CONDUCT A PROTEST UNDER THIS SECTION, THE
DIVISION SHALL ALSO TRANSMIT A COPY OF THE  PERMIT,  TOGETHER  WITH  THE
APPLICATION  FOR  THE SAME, TO THE LOCALITY IN WHICH THE APPLICANT SEEKS
TO CONDUCT THE PROTEST;
  E. UPON RECEIVING A PERMIT  FROM  THE  DIVISION,  AND  NOT  LESS  THAN
FORTY-EIGHT  HOURS  PRIOR  TO THE CONDUCT OF THE PROTESTS, THE APPLICANT
SHALL ALSO FILE WITH EACH CITY, TOWN, VILLAGE, AND COUNTY, IN WHICH  THE
PROTEST IS AUTHORIZED TO OCCUR, A COPY OF THE PERMIT ISSUED BY THE DIVI-
SION;
  F.  THE  PERMIT ISSUED BY THE DIVISION SHALL PROVIDE THAT THE PROTEST,
FOR WHICH A PERMIT WAS ISSUED BY THE DIVISION, AND FOR WHICH A  SECURITY
BOND  WAS FILED, SHALL BE CONDUCTED EXCLUSIVELY IN THE MANNER, PLACE AND
TIME, AS SPECIFIED AND AUTHORIZED IN THE PERMIT;
  G. IN NO EVENT SHALL ANY PROTEST EVER  BE  CONDUCTED,  NOR  SHALL  THE
DIVISION EVER ISSUE A PERMIT FOR THE CONDUCT OF ANY PROTEST, WITHIN FIVE
HUNDRED  FEET  OF  ANY FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL, OR PROC-
ESSION TO OR FROM THE SAME, OF A MEMBER OF THE ACTIVE  MILITARY  SERVICE
OF THE UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA;
  H.  WITHIN THIRTY DAYS OF THE DATE OF THE PROTEST FOR WHICH THE PERMIT
WAS ISSUED BY THE DIVISION, THE GOVERNING BODY OF THE LOCALITY IN  WHICH
SUCH PROTEST WAS HELD, BY A MAJORITY VOTE OF THE MEMBERS OF SUCH GOVERN-
ING BODY, SHALL MAKE A DETERMINATION AS TO WHETHER SUCH PROTEST COMPLIED
IN ALL RESPECTS WITH ALL THE REQUIREMENTS OF THE PERMIT, AND SHALL THER-
EUPON NOTIFY THE DIVISION OF SUCH DETERMINATION;
  I.  UPON  THE NOTIFICATION BY A LOCALITY THAT A PROTEST WAS HELD WHICH
COMPLIED IN ALL RESPECTS WITH ALL THE REQUIREMENTS OF  THE  PERMIT,  THE
DIVISION SHALL, WITHIN THIRTY DAYS, RELEASE AND REFUND THE SECURITY BOND
FILED  BACK TO THE APPLICANT, UNLESS REQUIRED TO DO OTHERWISE BY A COURT
OF COMPETENT JURISDICTION;
  J. IN THE EVENT THAT AN APPLICANT FILES A SECURITY BOND WITH THE DIVI-
SION, AND THEREAFTER FILES A WITHDRAWAL OF THE APPLICATION,  DUE  EITHER
TO  THE  FACT  THAT  THE PROTEST NEVER OCCURRED OR THAT THE APPLICANT NO
LONGER DESIRED TO HOLD A PROTEST, THE DIVISION, UPON FINDING  THAT  SUCH
APPLICATION  FOR  WITHDRAWAL  IS MERITORIOUS, SHALL, WITHIN THIRTY DAYS,
RELEASE AND REFUND THE SECURITY BOND FILED BACK TO THE APPLICANT, UNLESS
REQUIRED TO DO OTHERWISE BY A COURT OF COMPETENT JURISDICTION;
  K. IN THE EVENT THAT THE GOVERNING BODY OF THE LOCALITY IN WHICH  SUCH
PROTEST  WAS  HELD  MAKES  A  DETERMINATION,  BY  A MAJORITY VOTE OF THE
MEMBERS OF SUCH GOVERNING BODY, THAT SUCH PROTEST DID NOT COMPLY IN  ALL
RESPECTS  WITH  ALL  THE  REQUIREMENTS OF THE PERMIT, THEN THE DIVISION,
PURSUANT TO REGULATIONS, SHALL CONDUCT A  HEARING,  WHEREUPON  IT  SHALL
MAKE  A  DETERMINATION  AS TO WHETHER THE APPLICANT SHALL FORFEIT ALL OR
ANY PART OF THE BOND, WITH THE PROCEEDS OF THE BOND BEING AWARDED TO:
  (I) THE LOCALITY;
  (II) A PERSON OR PERSONS CONNECTED WITH THE FUNERAL, MEMORIAL SERVICE,
WAKE, BURIAL OR PROCESSION WHICH WAS THE SUBJECT OF THE PROTEST;
  (III) THE APPLICANT; OR
  (IV) ANY COMBINATION OF THE ABOVE; AND
  L. IN THE EVENT THAT THE DIVISION MAKES A DETERMINATION  THAT  ALL  OR
ANY  PART OF THE SECURITY BOND SHALL NOT BE RETURNED AND REFUNDED TO THE

S. 3901                             4

APPLICANT, THE DIVISION SHALL MAKE PAYMENT  TO  THOSE  PARTIES  THAT  IT
DETERMINED  SHOULD  RECEIVE  THE  PROCEEDS OF SUCH SECURITY BOND, WITHIN
THIRTY DAYS OF MAKING SUCH DETERMINATION, UNLESS REQUIRED TO  DO  OTHER-
WISE BY A COURT OF COMPETENT JURISDICTION.
  3.  THE  DIVISION,  AND  ANY  LOCALITY, SHALL NOT REQUIRE A PERMIT, OR
SECURITY BOND, FOR ANY PROTEST OF ANY FUNERAL, MEMORIAL  SERVICE,  WAKE,
BURIAL,  OR  PROCESSION  TO  OR FROM THE SAME, OF A MEMBER OF THE ACTIVE
MILITARY SERVICE OF THE UNITED STATES OR  THE  FORCE  OF  THE  ORGANIZED
MILITIA,  WHERE  SUCH  PROTEST IS CONDUCTED EXCLUSIVELY AT A DISTANCE OF
MORE THAN TWO THOUSAND FIVE HUNDRED FEET FROM ANY SUCH FUNERAL, MEMORIAL
SERVICE, WAKE, BURIAL, OR PROCESSION TO OR FROM THE SAME.
  4. VIOLATIONS OF MILITARY FUNERAL BUFFER ZONE PUBLIC  SAFETY  PROGRAM.
ANY CITY, TOWN, VILLAGE OR COUNTY, WHICH HAS BY LOCAL LAW, ESTABLISHED A
MILITARY FUNERAL BUFFER ZONE PUBLIC SAFETY PROGRAM, WHEREBY SUCH LOCALI-
TY HAS REQUIRED THAT ANY CITIZEN OR GROUP THAT CONDUCTS A PROTEST IN THE
VICINITY  OF A FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL, OR PROCESSION TO
OR FROM THE SAME, OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF
THE UNITED STATES OR THE FORCE OF  THE  ORGANIZED  MILITIA,  MUST  FIRST
OBTAIN  A  PERMIT FROM THE DIVISION, IN ORDER TO CONDUCT SUCH A PROTEST,
UPON RECEIVING A PERMIT, UNDER THIS SECTION TO CONDUCT SUCH  A  PROTEST,
MAY  POST  A  POLICE OFFICER FROM SUCH CITY, TOWN, VILLAGE OR COUNTY, AT
THE SITE OF THE PROTEST, IN ORDER TO ASSURE  THE  MAINTENANCE  OF  CIVIL
OBEDIENCE  AND  THE PUBLIC PEACE. IN THE EVENT THAT AFTER THE CONDUCT OF
SUCH PROTEST, A COURT OF THE CITY, TOWN, VILLAGE  OR  COUNTY  DETERMINES
THAT  THE  PROTEST  WAS  EITHER  INTENTIONALLY  OR  UNINTENTIONALLY  NOT
CONDUCTED IN EXPRESS ACCORDANCE WITH THE PERMIT ISSUED BY THE  DIVISION,
THEN SUCH COURT MAY IMPOSE A CIVIL PENALTY UPON EACH AND EVERY PROTESTER
WHO  PARTICIPATED  IN ANY PROTEST FOUND TO BE IN VIOLATION OF THE PERMIT
ISSUED BY THE DIVISION. THE AMOUNT  OF  SUCH  CIVIL  PENALTY  SHALL  NOT
EXCEED  FIVE  HUNDRED DOLLARS. THE INTENTIONAL VIOLATION BY A PROTESTER,
OF A PERMIT ISSUED BY THE DIVISION, SHALL BE A CLASS A MISDEMEANOR.
  S 2. This act shall take effect immediately.