City Defends Anti-Graffiti Law, Concedes It's Too Broad

While defending the city's anti-graffiti ordinance is necessary, a lawyer for the city conceded that the law was written so broadly that it conceivably could allow for a police officer to arrest students involved in set design for a theater production.

The city attorney, Scott Shorr, made the statement during a hearing yesterday regarding the constitutionality of the ordinance, which bans youths between the ages of 18 and 21 from purchasing wide-tipped markers or spray paint or carrying those items outside their homes.

The ordinance, which went into effect earlier this year, has been challenged by several art students who say it makes it very difficult for them to create art. Earlier, a federal judge, George Daniels of U.S. District Court in Manhattan, ordered the city not to enforce the ordinance while the lawsuit is going forward.

A panel of the 2nd Circuit U.S. Court of Appeals heard the city's defense of the law yesterday.

One judge on the panel, Barrington Parker, seemed skeptical of the law after Mr. Shorr told him that, as written, it gave the police power to arrest not only graffiti vandals, but even artists whose creative pursuits involved spray paint.

"I'm a student at Tisch at NYU," the 62-year-old judge hypothesized. "I'm doing set design. I'm in the studio doing set design for a production of ‘Twelfth Night.' Can a police officer arrest me?"

"Yes," Mr. Shorr said. "You are subject to arrest."

That wouldn't change even if a university dean told the officer that the student had permission to work on the set design, Mr. Shorr said when questioned further.

Judge Parker seemed perturbed.

"This city is probably the artistic and creative capital of the world," he said. "What is the city's interest in that level of restriction?"

The law has been used by police only several times since it went into effect, city lawyers have said in the past. Mr. Shorr said the city's interest in stopping graffiti was more compelling than the interest of the art students to use spray paint or broad-tipped markers.

"The test is not to see if we can come up with some draconian enforcement of the statute," Mr. Shorr told the court, referring to Judge Parker's line of questioning.

The other two judges on the panel were Amalya Kearse and Sonia Sotomayor. The court issued no ruling yesterday.