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Arizona Measure Would Create New Crime: 'Violent or Disorderly Assembly'

Victor Calderón/KAWC

By Howard Fischer
Capitol Media Services
PHOENIX -- A House panel voted Monday to give police more options to arrest people at demonstrationsm approving legislation that foes contend will be used to target minorities.
HB 2309 would create a new crime of "violent or disorderly assembly.''

It would apply to those who, along with seven or more person intends to engage in conduct constituting a riot and causes damage or property or injury to someone else.

The 8-5 party-line vote in the Republican-controlled Military Affairs and Public Safety Committee moves it along to the full House.

"This bill is going to infringe on the right of free assembly by intimidating people away from exercising their rights out of fear of criminal penalty,'' said Rhonda Neff, a lawyer speaking for Arizona Attorneys for Criminal Justice. Its members represent defendants in criminal cases.

Neff said the Phoenix Police Department and the Maricopa County Attorney's Office already are using existing laws to target what she said have been legitimate protests.
"And it has been largely politically motivated against people's stance of law enforcement,'' she said.

Marilyn Rodriguez of the American Civil Liberties Union went a step farther, saying the measure "allows police and prosecutors to target black and brown communities who speak out against the brutality they face at the hands of police each and every day.''

Rep. Bret Roberts, R-Maricopa, the author of the legislation, does not deny it is designed to have some deterrent effect.

"We have to be stronger and give anybody that chooses to exercise their First Amendment right a moment of pause before they decide to not peacefully assemble,'' he told Capitol Media Services in a separate interview. But Roberts said anyone who is engaged in a peaceful protest has nothing to fear.

Neff, however, said that's not the way it would work. She said it adds new penalties to "disorderly assembly.''

"Disorderly assembly is a very broad term and is subject to abuse just on its own,'' Neff said.
"There are innocent actors that get tied up into this as well where one protester or another may engage in some form of violent assembly (with) other people around them,'' she said. "And then the entire protest is deemed a disorderly assembly and all the people end up being punished due to innocent conduct.''

Rep. John Kavanagh, R-Fountain Hills, said he doesn't read the bill that way. He said someone can be arrested only if he or she engages in the existing crimes of unlawful assembly or riot "and then does extra stuff.''
Unlawful assembly, Kavanagh said, is what happens when police have declared it that, requiring everyone to leave.

"If you're staying at an unlawful assembly or a riot, you're not an innocent person,'' said Kavanagh, a retired police officer. "You're somebody breaking the law.''
And Kavanagh scoffed at the idea that enacting this kind of law would suppress free speech.
"The people who are suppressing free speech are the people who are engaging in unlawful assembly and riot,'' he argued.

"Time after time, over the past year, we have seen otherwise lawful assemblies be disrupted by violent behavior, especially in cities like Seattle and Portland,'' Kavanagh said. "Violent people hijacked lawful assemblies and that causes the lawful people to have to stop exercising their First Amendment and flee because they don't want to be hurt or arrested.''

But Rep. Melody Hernandez, D-Tempe, said her experience is that these kinds of laws tend to work only one way.
"We have one system that allows individuals that breached the (state) Capitol during my new orientation to go unpunished,'' she said.

That refers to a group that rushed into the state House on Dec. 3, bypassing security, chanting and shouting. That was an effort to convince Arizona lawmakers to declare the results of the November election void.

In that same group was Jake Angeli, the horn-wearing self-proclaimed QAnon shaman who a month later was arrested at the insurrection at the U.S. Capitol. There were no arrests.
Hernandez said those who have incited violence in Arizona also have gone unpunished.
"We have another system of justice that harshly targets and penalizes people of color,'' she said.
Neff said there are other flaws in what Roberts has proposed.

One requires that anyone arrested under this new crime would have to be held in jail for at least 12 hours.

There is an escape clause of sorts which allows release if a magistrate concludes the person is "not likely to immediately resume the criminal behavior based on the circumstances of the arrest and the person's previous criminal history.'' But Neff said that's largely meaningless, as defendants are largely unrepresented at initial appearances and usually cannot speak.
"That presumptively is a violation of the Fourth Amendment'' which protects against illegal seizure,'' she said.

Roberts said he is considering altering his bill when it gets to the full House to remove that provision. He also said he will scrap another section which says anyone convicted of this new crime is forever ineligible for state and local benefits, including public housing and state-provided scholarships and tuition waivers, and forfeits the right to ever be employed by state or local government.

"I believe there should be repercussions for you actions,'' Roberts said. "However, I also believe someone should have the opportunity to redeem themselves and get back on the right track and not have prior aspects counted against them in certain regards.''

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