Sound of da Harassment Prosecution

From N.Y. (Town of Patterson) Justice Court judge Michael Caruso in People v. Lando, decided in April:

This prosecution … [is for] Harassment in the Second Degree in violation of Penal Law § 240.26(3), which is a violation [i.e., a petty offense punishable by no more than 15 days in jail -EV].

The complainant alleges, based upon personal knowledge, that on May 30, 2025, at approximately 5:30 p.m., Defendant stopped her vehicle in front of the complainant’s driveway and played music at an excessive volume, causing annoyance and alarm. The complainant further alleges that the music included the phrase “it’s the sound of the police,” and that this conduct, as a whole, was undertaken in response to the complainant’s prior report to law enforcement concerning Defendant’s alleged excessive noise. According to the information, Defendant then backed up her vehicle and shouted to the complainant, “Why don’t you call them [the police] for me being too loud.” …

The supporting deposition alleges that on May 29, 2025, an individual identified as “Frank” drove past the complainant’s residence and shouted vulgar and offensive language, including “Fucking faggot!” It further alleges that, later that same day, the same individual parked his vehicle in the roadway, thereby obstructing the complainant’s wife from operating her vehicle, while staring at her and her daughter.

The supporting deposition further alleges that on May 30, 2025, the same individual again drove past the complainant’s residence, shouting additional vulgar and offensive remarks, including “Gay fuck,” directed at the complainant. It is also alleged that Defendant engaged in a course of conduct over a time period, including parking her vehicle conspicuously near the complainant’s residence for extended periods with the windows down while playing loud music, specifically the song “Sound of da Police” by KRS-One, and operating her vehicle at excessive speeds along the roadway….

The court denied defendant’s motion to dismiss the prosecution. It concluded that defendant’s alleged conduct could qualify as second-degree harassment, defined as “engag[ing] in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.” And the court concluded that the defendant wasn’t protected by the First Amendment:

The Court is mindful that the playing of music constitutes artistic expression protected by the First Amendment, and it is not the function of this Court to adjudicate the expressive value or viewpoint of a particular musical work. The song at issue, which neither of the parties dispute, is “Sound of da Police” by KRS-One. This song, like countless others, is widely recognized as a form of constitutionally protected political expression, employing metaphor, hyperbole, and socio-political critique. Accordingly, the lyrics themselves are not to be construed as literal threats in the absence of contextual evidence demonstrating such intent….

However, the protections afforded to expressive content do not preclude the Court from considering the manner, context, and surrounding circumstances in which such expression is allegedly used relative to the parties herein. Thus, the inquiry at this stage is not whether the song and musical, more generally, is protected in the abstract, but whether its repeated use, in conjunction with other alleged conduct, forms a factual basis sufficient to establish the elements of the charged offenses. The Court finds that it does.

Here, the accusatory instruments allege that Defendant, on multiple occasions, played the KRS-One song entitled “Sound of da Police” at a high and disruptive volume from her vehicle while simultaneously directing offensive, suggestive, and threatening remarks toward the complainant near the complainant’s home. While the playing of music alone would not suffice to establish criminal liability, the allegations, taken together, describe a pattern of conduct that may reasonably be interpreted as intended to alarm, annoy, threaten, or harass.

The Court takes judicial notice of the recording “Sound of da Police” by KRS-One (1993), a widely distributed hip-hop song. The work features a forceful vocal delivery, repetitive chant elements, and a pronounced rhythmic beat that distinguish it from more subdued or conventionally “soothing” musical genres such as, for example, classical music or certain modes of jazz. For example, the refrain “woop woop, that’s the sound of da police” is delivered in a loud, attention-commanding manner in the song.

{Additionally, other portions of this song include statements such as, “[t]he police, dem have a likkle gun / So when I’m on the streets, I walk around with a bigger one,” which conveys a theme of escalation in armed confrontation, and “[a]nd if you fight back they put a hole in your chest,” which echoes an expression of violent engagement. Read together, these lyrics and the use of this song could conceivably support allegations that Defendant’s actions, collectively, were intended to convey sentiments of antagonism and referencing retaliatory force that a reasonable listener could interpret as threatening in nature.}

The Court makes this reference not to evaluate the speech, lyrics, or song itself, but to assess how a reasonable listener might perceive its volume, tone, and expressive content. Accepting the allegations of the accusatory instrument as true and according them every favorable inference, the Court cannot conclude, as a matter of law, that the use or playing of such a recording, especially given its emphatic and high-energy auditory qualities, would be incapable of producing the type of reaction or effects on the complainant as alleged by the People…. Whether the recording was in fact played at the volume, in the manner, or under the circumstances as alleged, and whether it had the effect attributed to it on the complaint, are factual questions ultimately to be resolved on trial and not on this motion….

The Court further recognizes that hip hop and rap music as a genre often employs figurative and exaggerated language, and should not be interpreted literally without the appropriate context. Nevertheless, the Court may take notice that the song at issue is forceful and confrontational in tone, such that, when repeatedly amplified and directed toward a specific individual in conjunction with alleged verbal confrontations and targeted presence when using a motor vehicle, it may plausibly contribute to an atmosphere of intimidation and apprehension….

The repeated playing of loud, confrontational music, coupled with the alleged operation of a vehicle very close to the complainant’s residence and the simultaneous use of offensive and threatening language, provides nonhearsay factual allegations of an evidentiary nature sufficient to support the inference of a course of conduct directed at the complainant….

Andres Gil represents the prosecution.