By Buffalo News (NY)- 3/10/2014
The Hamburg home owner whose sign protesting Gov. Andrew M. Cuomo and his gun control legislation says that he is at war with town officials, but over free speech, not guns.
"They started this war, and we're going to finish it," E. Scott Zawierucha said Friday after Hamburg's two town justices removed themselves from the case against him to avoid potential conflicts of interest.
Zawierucha, who is charged with violating the town's sign law, said his motive is to preserve the rights of other citizens when it comes to free speech.
At a news conference in the lobby of Hamburg Town Hall following a short court appearance, Zawierucha's attorney said the main issue is whether the town has the right to suppress free speech.
"The core of the First Amendment is political speech. So obviously this is political speech and the sign ordinance is presumptively unconstitutional," attorney James Ostrowski said.
Affixed to Zawierucha's back fence, which faces South Park Avenue, the 4-foot by 10-foot sign states:
"NY IS NOT S.A.F.E.!! STOP CUOMO, PRESERVE YOUR RIGHTS!!"
Hamburg Town Justice Walter L. Rooth II, at the abbreviated proceeding, explained that his son is the town attorney and the case might eventually end up in civil litigation against the town and that Town Justice Gerald Gorman has previously represented members of Zawierucha's family as a lawyer.
The case is now going to Erie County Court for reassignment in another town court near Hamburg, and that is expected to take about two weeks, according to Ostrowski. The attorney said he will file a motion to dismiss the code violation on the grounds that it violates the First Amendment and because Code Enforcement Officer James Eberhardt failed to have the summons personally served to his client and instead relied on the U.S. Postal Service.
Town prosecutor John K. Jordan said the town is not trying to block free speech.
"Government can regulate the physical characteristics of signs," Jordan said. "We are not trying to regulate content."
Town officials have cited concerns that the sign might be a traffic hazard on busy South Park Avenue and could cause a collision.
Before the hearing started, approximately 25 gun rights supporters attended a protest outside Town Hall in support of Zawierucha's right to display his sign.
Among the protestors was Town Supervisor Steven J. Walters.
"My position has always been supportive of people being able to express their First Amendment rights and we as a Town Board went on record last summer opposing the N.Y. SAFE Act calling for its repeal," he said.
That action occurred when the three-member board had a Republican majority. It now has a Democratic majority.
"I've asked the board to run a parallel review while Mr. Zawierucha's goes through the court system to look at the law to ensure it doesn't violate the First Amendment. I've taken a look and there are certainly some concerns. If the board feels it is in violation, we'll change it," the supervisor said.
Budd Schroeder, chairman of the Shooters Committee on Political Education's board of directors, said he was not entirely surprised that the First Amendment was being encroached upon.
"I've been at Second Amendment activities a year shy of half a century, and if the Second Amendment can be infringed upon, it only stands to reason the First Amendment will be next in line, and this case is the start of it in Western New York," Schroeder said.
"It's important to stand up for the First Amendment in order to support the Second Amendment," added SCOPE President Stephen J. Aldstadt.
If Zawierucha is convicted, he could face a maximum fine of $250 and 15 days in jail.
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