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New York City may be held liable for enforcing a harassment statute later ruled unconstitutional, a federal judge has ruled. Ruling from the bench, Southern District Judge Shira A. Scheindlin said the city was not immune from a suit despite its argument that it was simply following a law authorized by the state. The city, she said, was aware of the New York Police Department’s enforcement of the statute and should have known that it was on shaky constitutional ground. The statute, 240.30(1) of the penal code, made it unlawful to communicate with someone with the “intent to annoy or alarm.” The law’s constitutionality had been questioned by numerous state appellate courts since its inception in 1965. Judge Scheindlin declared it invalid in November. She also found that the statute’s “dubious history” raised concerns as to why police officers and prosecutors continued to arrest and prosecute people for annoying and alarming communications. One such person was Carlos Vives, a 66-year-old city resident who distributes mass mailings on religion and politics. Mr. Vives has distributed mailings to Jews with the intent to alarm them about prophesies in the Bible. Mr. Vives was arrested and handcuffed after Jane Hoffman, a candidate for lieutenant governor, told authorities through her campaign manager that she had received mailings from Mr. Vives. He was charged with second-degree aggravated harassment, although the Manhattan District Attorney’s Office declined to prosecute. Mr. Vives then filed suit, alleging that his arrest violated the First and Fourteenth amendments to the U.S. Constitution, as well as the New York Constitution. Judge Scheindlin found the statute unconstitutional and enjoined the city from enforcing it. Last week, the judge said the city could not avoid civil liability on the ground that it was enforcing a state law. Though there is little case law on the matter in the Second Circuit, the judge said, rulings from circuits elsewhere in the country supported her conclusion. “Based on case law from the Fifth, Seventh and Ninth Circuits, as well as several district courts, including this court, it appears that a municipality does not have liability for actions required by state law but may have Monell liability for actions permitted, but not required, by state law,” the judge said, according to a transcript of her oral ruling. “There is no evidence, particularly at this stage of the proceedings, that the State of New York commanded the City to enforce the statute.” She was referring to Monell v. Dept. of Social Services, 436 US 658 (1978). In Monell, the U.S. Supreme Court held that local governments could be sued for monetary damages for implementing unconstitutional ordinances. The case involved women employees of the schools and Social Services Department who had been compelled to take unpaid leaves during pregnancies. Christopher Dunn, associate legal director of the New York Civil Liberties Union, which represents Mr. Vives, said, “Given the wide range of city actions taken pursuant to state law, the city’s effort to claim immunity in this case would have created a huge exception to the municipal liability for civil rights violations.” Judge Scheindlin ordered the two sides to proceed with discovery in preparation for a trial on money damages. Kate O’Brien Ahlers, a spokeswoman for Corporation Counsel Michael A. Cardozo, said the office is reviewing the decision. Assistant Corporation Counsels Katie O’Connor and Leticia Santiago are representing the city.

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