HOMELAND SECURITY: O'Connell Broke the Law (*"arguably")

On a post at The Albany Project I asked whether the O'Connell ad featuring Osama and Balboni was at all legal, given its use of an image bearing the DISTINCT likeness of the NYS Homeland Security seal. Well, courtesy of Capitol Confidential, it looks like the answer is an emphatic NO:

http://blogs.timesun...

State Homeland Security Office spokesman Dennis Michalski slammed GOP 7th SD candidate Maureen O'Connell for using a "falsified state seal" in her campaign mailer, saying the move was "inappropriate" if not outright illegal.

"It is completely inappropriate for a political candidate to use a falsified state seal in the context of a political campaign. Politicizing state security issues is inappropriate and trivializes the law enforcement efforts of New York's office of Homeland Security," Michalski said. "We direct the campaign and candidate to the following passage from New York's penal law that identifies such actions as arguably illegal."

Here's the passage in question:

§ 190.25. Criminal impersonation in the second degree

A person is guilty of criminal impersonation in the second degree when he:

1. Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or

2. Pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or

3. (a) Pretends to be a public servant, or wears or displays without authority any uniform, badge, insignia or facsimile thereof by which such public servant is lawfully distinguished, or falsely expresses by his words or actions that he is a public servant or is acting with approval or authority of a public agency or department; and (b) so acts with intent to induce another to submit to such pretended official authority, to solicit funds or to otherwise cause another to act in reliance upon that pretense.

Criminal impersonation in the second degree is a class A misdemeanor.

(emphasis t/o mine)

Great work from CapCon. Now, I'm no lawyer here, but it looks like Maureen O'Connell's campaign has broken the law.. so let's do a little side by side to make some sense of things. First the real thing, from the real deal, NYS Homeland Security:http://www.security....

Next, O'Connell saving the day:

OOOH, now I get it. She didn't ACTUALLY break the law, since her eagle is BIG, and it's flying to the left, not the right, silly. (Evidently the O'Connell eagle prefers the Southern Tier to the North Country...)

She also omits the state seal we find on the flag. So TECHNICALLY, she didn't STEAL the logo per se. She did however use the basic shape, a circle, with two stars, the likeness of an eagle, and the American flag overlaying the image of NYS.

Again, haven't gone to law school yet, but boy, I'd love to see them defend this in copyright court..

It rather looks like Maureen has "falsely expressed by her words or actions that she is a public servant or is acting with approval or authority of a public agency or department".. among other indiscretions. The average New Yorker has not memorized the Homeland Security seal, and could easily be mislead into believing O'Connell is attached to the Department.