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Mixed verdict in racial slur case involving African burial ground in Manhattan

"The protections of the First Amendment do not extend to defacing federal property," Manhattan U.S. Attorney Geoffrey Berman said after the verdict.

A Bronx man was convicted Thursday of vandalism but acquitted of disorderly conduct in Manhattan federal court for scrawling a racial slur on a sign at the African Burial Ground National Monument in lower Manhattan last year.

Ivan Nieves, 57, was accused of  pulling a marker  out of his pocket to write “kill…” followed by a racially derogatory term for African-Americans as he passed by the “Place of Remembrance” sign marking the gravesite of an estimated 14,000 slaves  on Nov. 1, 2018.

U.S. Magistrate Ona Wang, who previously rejected a motion to dismiss the charges on free-speech grounds, issued the mixed verdict after a day-long trial without a jury. But she did not explain her findings. Nieves will face up to 6 months in prison at his sentencing on July 17.

“The protections of the First Amendment do not extend to defacing federal property,” Manhattan U.S. Attorney Geoffrey Berman said after the verdict.

Prosecutors argued that the vandalism charge was established by defacement of the sign, but Nieves' defense lawyer Phil Weinstein told the judge that the disorderly conduct charge required a call to action, not merely an expression of belief or standard offensive graffiti.

“It was an exhortation, but not an actual threat,” he told Wang. “…There was no evidence that anyone in that group felt threatened.”

The long-forgotten burial ground near 290 Broadway was used for the remains of African workers in the 1600s and 1700s, then rediscovered during construction in 1991 and later turned into a national monument site, according to testimony from a National Park Service witness..

Grainy surveillance video from the morning of Nov. 1 showed a man briefly stopping at the sign, but his face wasn’t visible. Park Ranger Sean Ghazala said when the defacement was brought to the attention of workers on site, it was removed with a liquid cleaner. Two people complained.

“They were feeling some emotional pain for what they had seen,” he testified.

NYPD hate crimes Det. Michael Diaz said area surveillance videos were used to track a man with similar clothing to the man who stopped at the sign. Diaz said the man was seen meeting with a woman at a nearby building, and the woman turned out to be Nieves’ sister who said he was “not all there.”

Nieves never admitted doing it, but detectives found a marker  in the pocket of his jacket when they interviewed him at his apartment, Diaz said, and when police asked about it, Nieves responded that he wasn’t “dumb.”

Weinstein argued that the identification of Nieves was unsound. After the verdict, he and Nieves were asked if Nieves still held the view scrawled on the sign. Weinstein declined to comment. Nieves said nothing.

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