Following the death of a worker in a trench collapse, a New York contractor has refused to comply with a court order requiring it to pay for safety advertising, arguing that to do so would violate its First Amendment rights.
The firm, Harco Construction, was ordered to finance a safety campaign on 14 July after it was found guilty of the manslaughter of Carlos Moncayo, an employee of one of its subcontractors, who was killed in a trench collapse in April last year.
a neighbourhood news site, Harco’s attorney said the campaign would be a violation of the company’s First Amendment rights and would be equivalent to an admission of guilt.
The attorney, Ron Fischetti, told Judge Kirke Bartley at the sentence hearing that the company would not obey.
He said the campaign would be "an admission that Harco was partially responsible for this accident, and they were not".
He added that Harco were the victims rather than the perpetrators of the crime, and that Mr Moncayo’s employer, Sky Materials Corp, was the company whose conduct should be questioned. Sky Materials is awaiting a separate trial.
The sentence, which had the support of prosecutors and 22 groups including a coalition of general contractors, required Harco to fund English and Spanish print and television advertisements for worker safety in exchange for a conditional discharge.
Judge Bartley said: "The law is powerless to make the victim and his family whole. We can’t bring him back to life. Can’t give him back to his family. A young man went to work with hopes, aspirations and dreams for his new life in America. He died tragically and violently and so, so unnecessarily."
The judge added that if Harco refused to pay for the ads they would face a $10,000 fine, compared with the $35,000 maximum that prosecutors had asked him to impose.
Mr Moncayo was a 22-year-old undocumented Ecuadoran immigrant. He was killed while working in a 14-foot-deep excavation on Ninth Avenue, required for the building of a hardware store.
According to earlier reports an investigation by the Manhattan district attorney and the city’s Department of Investigation uncovered emails and documentation showing that Harco, the general contractor responsible for the site, and Sky Materials, the subcontractor in charge of the excavation, ignored months of safety warnings about the lack of fortification in its trenches, including several on the morning of Moncayo’s death.
The Construction Drive website commented
this week that "cases like these continue to highlight the issue of the disproportionately high number of immigrant construction worker deaths in New York City, as well as heightened scrutiny of general contractors who may not be present on the job site they manage when an incident occurs".
It added that a recent New York Times
investigation suggested that the rise in deaths overall was caused by a lack of adequate safety measures, but that immigrant deaths in particular were exacerbated by a culture of fear around their undocumented status.