Drawing a Swastika is a Felony in NYS

This is absolutely ludicrous. A teenager has been charged with a FELONY for drawing on a sidewalk with baby oil. Now granted, he did draw a Swastika in a predominantly Jewish community, but in this day and age it is hardly surprising that a teenager might be desensitized to the meaning of the symbol, and detached from the history of it.

Man charged with drawing a swastika on a Monroe sidewalk 

VILLAGE OF MONROE – A Monroe man has been arrested and charged with felony aggravated harassment in the first degree for drawing a swastika on a Monroe village sidewalk late Wednesday night. 

The incident at the Millpond walkway in the center of the village was reported to Monroe Police by residents of the Hasidic village of Kiryas Joel. Responding officers found the symbol was made out of some sort of oil. 

A group of five men were nearby and the callers advised that one of them had drawn it. Police searched the men and found one had a 20 ounce bottle of baby oil in his backpack. Kumani Scott, 19, admitted he had drawn the swastika, saying he was just being stupid with friends and that he didn’t mean anything by it. Scott was also charged with misdemeanor making graffiti.

Police said the Millpond Park and walkway, where the incident occurred, are used by people at all hours of the day and night and there have been very few incidents of this nature in that area. 

“While the man arrested may not have meant anything by it, like he told the investigating officers, the swastika has a strong meaning to many people, and we take these types of incidents very seriously, as do New York State lawmakers, which is why New York State law classifies the drawing of a swastika on any public place a felony,” said Detective James Franklid.

I couldn't believe what I read there, so I had to look it up in the NYS Penal Code myself.

S 240.31 Aggravated harassment in the first degree. A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person`s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she: 
3. Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property;

Now don't get me wrong here, I am not insensitive to what meaning would likely be taken by a Jewish person seeing that symbol drawn on a sidewalk. It will likely evoke sad memories of the past, and might even cause some fear, wondering if someone has intended to make a threat of some sort. But there are some other things to consider as well.

US Army, 45th Infantry Division, Oklahoma City
The meaning of the Swastika is interpretive, not set. The symbol itself was used for thousands of years before it was ever adopted by the Nazis. In fact today it is still widely used throughout Asia as a religious symbol and a symbol of good fortune. Which means that if you are a Buddhist, and decide to etch one of your religious symbols in the dirt at a park, you are now a FELON.

Now let's really think about that for a second too. What it really means to be a felon. In essence, you have your rights as a citizen stripped from you for the rest of your life. You can no longer vote, you can no longer own a firearm, you can't get a visa, you can no longer get public assistance, you are barred from Federally funded housing, and your job prospects are certainly narrowed by more than just the fact that you are also barred from holding all sorts of professional licenses. To impose this harsh punishment on a teenager, essentially destroying his life,  for something so trivial is absolutely absurd. Not to mention actually sending him to prison for it, at substantial cost to the taxpayer. Keep in mind here too, we aren't talking about a week in the county jail. This young man stands to spend more than a year in prison if convicted. And for what? Because he unwittingly offended a religious faction?

Granted, he no doubt did it to be irritating and "rebellious" as teenagers are often want to be, but it is quite likely that he had no idea whatsoever that what he was doing was a felony. As I said at the start, most kids today probably don't even fully grasp the meaning behind the Nazified symbol, or the history of what happened. For a mischievous teenager, drawing a swastika is no different than drawing a pentagram or an inverted cross, or the anarchy "A" symbol. Now we might point finger and say "well he should have known better" but that still doesn't make him a criminal, under the principle of mens rea.

Heck, it's not even like the kid used spray paint or even a marker, he used baby oil. A substance that is not permanent and causes no damage. Which now brings up the misdemeanor graffiti charge. He cannot even be found guilty of that, because the penal code states that the person must have intended to cause damage. Baby oil does not cause damage to stone or cement any more than a piece of chalk would.

S 145.60  Making graffiti. 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.

In essence, what this "swastika law" says, is that even a child playing with chalk on the sidewalk in front of their house, is a felon if they draw an "x" with legs on it. And speaking of "chalking," Federal courts have ruled that this sort of non-damaging graffiti is protected free speech.

After a cost of eighteen days in a cage and a few months of legal threats, there is good news to report on chalking freedom out of Orlando, Florida. The ABA Journal published yesterday that Timothy Osmar, who was twice arrested for chalking at the Orlando city hall plaza, had his rights violated when he was legally kidnapped over protected political speech. US district magistrate David Baker’s ruling deemed the arrest for violation of a city ordinance to be an overreach of a code designed to prevent unauthorized commercial advertising.
Article continues at SOURCE.

So at the end of the day this kid might very well go to prison for offending some Jewish people. Don't we have more serious things to worry about in this country? Isn't imposing an inordinately harsh punishment the real crime here? Again, I am not saying that what he did was proper. I could see imposing a fine, or doing a little bit of community service for a charge of disorderly conduct perhaps, but this is just nuts. You can shout at someone and call them a nigger or a cracker, you can write "fuck the police" in chalk on the steps of city hall, but you better not offend a Jew in New York.

Crime Scene


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