No First Amendment Right to Spray Paint "Free Gaza" on State University of N.Y. Buildings

The court also rejected defendants' "necessity" defense.

From People v. Sanin & Guillotin, decided (generally correctly, I think) Aug. 8 by trial judge James Farrell of the Ulster County (N.Y.) County Court:

Defendants, Jamie Sanin and Charlie Liu Guillotin, former SUNY New Paltz students, were indicted on charges of Criminal Mischief in the Second Degree (Penal Law § 145.10]), Making Graffiti (Penal Law § 145.65) and Possession of Graffiti Instruments (Penal Law § 145.65) stemming from allegations that on October 6, 2024, they spray painted graffiti at various locations on SUNY New Paltz Campus with phrases such as "Your Tuition Funds Genocide" and "Free Gaza" and posted two posters containing similar statements. Two suspects wearing black coats with black hoods and black surgical masks were observed on surveillance video. A patrol officer observed two individuals matching the suspects' descriptions and ordered them to stop walking. The patrol officer smelled the strong odor of spray paint on the suspects, one suspect had spray paint on their clothing, and other suspect was carrying a shopping bag containing several cans of spray paint. The suspects, identified as defendants herein, were arrested and issued appearance tickets. Defendants were also issued "persona non grata" letters and advised not to return to campus lest they be subject to arrest for criminal trespass. Defendants now move to dismiss the indictment….

The "Making Graffiti" statute provides:

1. For purposes of this section, the term "graffiti" shall mean the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property.
2. No person shall make graffiti of any type on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.

The court rejected the claim that this violated the First Amendment:

[T]he statute is content neutral and prohibits an activity unrelated to the content of expression, the statute instead prohibits the destruction of personal and private property….

Unlike the city ordinance discussed in Tuscan v City of Seattle (W.D. Wash. 2024), relied upon by defendants, Penal Law § 145.60 requires that an individual intend to damage the property upon which they have made the graffiti. In Tuscan, a person was guilty of property destruction under the city's ordinance if they intentionally wrote, painted or drew on any public or private building, structure, real or personal property, regardless of whether they intended to damage the property or not. Thus, under that ordinance, any act that was intentional, such as a child intentionally drawing a rainbow on the sidewalk with chalk without permission, could be determined to be property destruction.

Under Penal Law § 145.60, it is not the mere intentional act of placing graffiti onto another's property without permission that constitutes the crime, but the culpable mental state of intending to damage that property in the process. "Damage implies an injury or harm to property that lowers its value or involves loss of efficiency. Thus, an intent to damage may translate into an intent to injure or harm property by lowering its value or lessening its efficiency." The statute sufficiently outlines the conduct that it prohibits—marking another person's property without their permission, and "intent to damage" is understood to mean lowering the property's value or loss of its efficiency. Considering these elements together, defendants had adequate notice and law enforcement sufficient guidance as to what activity is prohibited. The statute is neither overly board nor unconstitutionally vague….

While defendants have a constitutional right to engage in political speech, that privilege does "not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." "Nothing in the Constitution commands that dissemination of all forms of speech at all times on all kinds of property are absolutely protected under the First Amendment, without regard for the nature of the activity, the property or the disruption that might be engendered by unregulated expressive activity in certain circumstances." …

Assuming without deciding that that a SUNY campus is a traditional public forum, as discussed above, the "Making Graffiti" statute is content neutral and is narrowly tailored to serve a legitimate government purpose. Defendants have numerous other means to express their concerns that do not involve spray painting that message on campus property. Defendants have failed to demonstrate that the statute was discriminately applied to them based upon their viewpoint.

And the court held that defendants' weren't entitled to a jury instruction on the necessity defense recognized by N.Y. statute:

A justification defense applies "when conduct that would otherwise have been criminal 'is necessary as an emergency measure to avoid an imminent … injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor,' and the threatened injury is so grave as to outweigh the harm resulting from the actor's conduct." Courts in New York have consistently denied application of the defense of justification by necessity in cases involving defendants who have engaged in civil disobedience.

Defendants['] conduct, spray painting statements on campus property, with the intention of prompting the university to change its financial and/or investment policies as it may relate to the armed conflict in Gaza cannot be considered to have been reasonably calculated to prevent any harm to the people in Gaza suffering from the armed conflict. As such, defendants' act of civil disobedience was not "necessary as an emergency measure" to prevent harm to the people in Gaza….

Comments

[Scooter]

We've clearly done a terrible job of teaching civics in this country if people truly believe the First Amendment covers intentional damage to the property of other. (Yes, spray painting graffiti on someone else's building causes damage.)

[Krayt]

But...

For purposes of this section, the term "graffiti" shall mean the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property.

The intent isn't to damage property, generally. It's to make a public statement everyone can see.

Vandalism is a desire to damage property.

Perhaps change the definition to include ", coincidentally damaging someone else's property", or even using someone else's property without permission.

[Brett Bellmore]

You know, it's actually possible to do graffiti without damage. You soap the surface first, then paint over the dry soap.

My dorm in college had an annual event where people would paint murals all up and down the dorm halls, and the winner each year would be varnished over to preserve it, the losers washed off harmlessly, because you'd soaped the wall first.

I suppose if you could demonstrate that you'd done this, you'd have a pretty solid defense, because one of the predicates of the crime would be deliberately omitted.

[rswallen]

Another potential method would be projecting the message of the side of a building when it gets dark.

[wvattorney13]

Intent can be inferred by what you do. If you intentionally spray paint on a building, you have intentionally damaged the building. You didn't do it recklessly or negligently.

[Ken Arromdee]

You did do it recklessly or negligently if you weren't thinking about damage to the building at the time. If intent can be inferred the way you suggest, intent would be a nullity because doing X would always lead to an inference of intent to do X.

[M L]

A graffiti artist who wants to make a public statement is presumably aware that spray paint doesn't come off with the next rain, in fact the permanent nature of and difficulty of removing the graffiti is part of the attraction for them. Otherwise they can use chalk.

I suppose they can try to convince the fact finder that they were unaware of how paint works, in which case their actions might be reckless or negligent.

In general - "doing X would always lead to an inference of intent to do X" - Yes, that's how it is supposed to work, as long as you did X intentionally. People also frequently do things by accident. If you were carrying buckets of paint and you tripped and fell and spilled the paint all over someone's property, that was not intentional. This does not make intent a nullity.

[wvattorney13]

"If intent can be inferred the way you suggest, intent would be a nullity because doing X would always lead to an inference of intent to do X."

Yes, if you intentionally spray paint on a building a jury is entitled to make the inference that you intended to damage the building. That's what the application of spray paint does--it damages a building.

If I am doing a craft in the front yard using spray paint and I look up and the wind has carrying to to my neighbor's house, I lacked the intent to be guilty of this statute because the finder of fact could conclude that I negligently or recklessly ended up painting the neighbor's house.

As M L says, you are reading the statute as if it said, "for the sole purpose of"

[Stupid Government Tricks]

That's like excusing a drunk driver because he didn't intend to be a drunk driver when he drove to the bar.

No, sorry. He intended to drive to the bar, and he did. He intended to get drunk, and he did. The result was inevitable, even if he did not leave home that evening with the explicit intent to end up as a drunk driver.

[Phanatic]

You intend the natural consequences of your actions. That's how intent works.

[M L]

"with intent to" is not the same thing as "for the purpose of"

Damaging someone's property with graffiti indicates an intent to damage the property even if the purpose of doing so was to make a public statement.

[jimc5499]

Scooter, They haven't taught "Civics" in schools for decades. They teach "Social Justice". "Social Justice" says that they have the right to do this, they have the right to physically attack people who's views don't align with Liberal Socialism. If they taught Civics, people would catch on to the bullshit that is being shoveled by some of the "writers" here on Reason.

[Scooter]

The emotional children that engage in this behavior are nearly identical to the ones that believe they have a First Amendment right to shout down speakers at sanctioned events just because they don't like the message.

Morons, in other words.

[Michael Ejercito]

But only they have that right.

Those who disagree with them do not have that right.

[Area Man]

That necessity defense is so outlandish, it's one of those "how do I even start to respond to this" types of arguments.

[Brett Bellmore]

Yeah, honestly a lawyer ought to face sanctions for bringing that sort of defense. The defendant might have an excuse for thinking it would be a valid defense, the lawyer has none.

[not guilty]

I once won dismissal of a DUI warrant at a preliminary hearing based on the defense of necessity.

The facts were that police found my client, who was intoxicated, asleep in his car in the parking lot of the bar during the early morning hours during January. The engine was running. He was arrested and charged with driving under the influence. (Driving need not have been proven. Being in physical control of a vehicle on any premises that is generally frequented by the public at large would suffice.)

The defense of necessity provided that conduct is justified, if:

(1) The person reasonably believes the conduct is immediately necessary to avoid imminent harm; and
(2) The desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct, according to ordinary standards of reasonableness.

Tenn. Code. Ann. § 39-11-609. My theory was that my client sleeping in his car after the bar had closed was necessary to avoid the risk of his driving on public roads while intoxicated, and turning on the engine was necessary to operate the car heater in order to avoid hypothermia. The judge agreed and dismissed the case.

[Swede425]

LOL!
Once again.
Frankenstein always loses control of his monster.
Always.