PHOENIX — People who block traffic in protest, trespass in a building or commit other minor crimes could end up in state prison under the terms of legislation making its way through the state House.
But it could depend on what they are protesting — and why.
Several thousand anti-ICE protesters marched through downtown Tucson last month. Legislation being pushed in Arizona would create a new crime of "civil terrorism'' for those who commit vandalism, destruction or property or disorderly conduct "with the intent to coerce or intimidate a civilian population.''
Legislation being pushed by Rep. Michael Way in the wake of anti-ICE disturbances in other cities would create a new crime of "civil terrorism'' for those who commit vandalism, destruction or property or disorderly conduct "with the intent to coerce or intimidate a civilian population.''
But the measure by the Queen Creek Republican also would include "deprivation of civil rights or any other unlawful act'' within the definition. And Way, during a hearing at the House Judiciary Committee, said what also could lead to 18 months in state prison would be blocking roads.
That's just part of what is in his HB 2136 which was crafted in collaboration with Tal Fortang, a legal policy fellow at the Manhattan Institute which says its goals including advancing "creative, evidence-based policy ideas for better policing, public safety and criminal justice.''
Also in the legislation is a new crime of "subversion'' for someone who commits any unlawful act to advance the interests of a terrorist organization, attempt to act as a foreign government agent, or "subvert the government of this state or the United States.''
That last provision alarmed Marilyn Rodriguez of the Arizona chapter of the American Civil Liberties Union.
"Persons can be charged with a Class 5 felony if the action is motivated by disdain for the United States government,'' she said.
"The government cannot punish people more harshly because they express views critical of the government,'' Rodriguez told members of the House Judiciary Committee. "And it it part of a larger attack ... to label everyday Americans as terrorists for expressing political views critical of the Trump administration.''
There are things considered "civil disobedience'' that already violate the law and can be prosecuted. What's different, Rodriguez said, is that new label of "terrorist'' and the enhanced penalty.
Consider, she told lawmakers, the 1965 civil rights march from Selma to Montgomery where 600 people blocked the highway while crossing the Edmund Pettus Bridge.
"This bill would declare them terrorists,'' Rodriguez said.
The measure is being pushed by Tal Fortang, a legal policy fellow at the Manhattan Institute which says its goals including advancing "creative, evidence-based policy ideas for better policing, public safety and criminal justice.''
He said that in Arizona and elsewhere, "extremist groups'' are making increased use of civil terrorism.
"That term refers to the mass commission of minor crimes in order to intimidate or coerce civilians into taking unpopular political positions,'' Fortang said.
"Instead of persuading their fellow Americans through free and robust speech, they break laws by doing things like blocking roads, or vandalizing, or destroying property,'' he said. "When you engage in democratic politics, actions that inconvenience your fellow citizens are the worst things you can do.''
Fortang also said that "certain radical organizations'' brag about how they plan to escalate until their demands are met.
"Sometimes they do so explicitly to advance the interests of America's adversaries or of designated foreign terrorist organizations,'' though he offered no specific examples.
The bottom line, said Fortang, is the legislation would allow "enhanced'' prosecution of those who violate other minor crimes "based on the intent behind the commission of those crimes.''
"If someone throws a rock or fires a weapon or blocks a road, and they say that they are doing so because 'I want the state of Arizona to change its policies around one thing or another,' it could really be anything, that could be evidence that could go to prosecuting the crime more severely,'' he said.
The legislation would add disorderly conduct, riot, civil terrorism and subversion to the definition of racketeering. And that, said Fortang, has a specific purpose.
"It allows the state of Arizona to prosecute those who conspire to commit riot or felony disorderly conduct for civil terrorism in addition to the people that actually carry it out,'' he said.
The question of how the law would be applied provoked questions from Rep. Lupe Contreras. The Avondale Democrat asked Way whether what he was proposing could have been used against those who rioted at the Capitol on Jan. 6, 2001, assaulted police officers, broke into the building and tried to stop the electoral vote count in an effort to prevent certification of the results which showed that Joe Biden had won the presidential election.
Way sidestepped the question, saying all that occurred on federal property in Washington, where Arizona laws don't apply.
Contreras pushed the issue, asking Way to explain how his bill would apply if the same thing occurred here in Arizona. Way again deflected, preferring to provide his own illustrations.
"Some of the recent real world examples that could apply to this that we can actually make sure we can give our law enforcement officers the ability to stop this would be the recent attacks in Texas that happened in July against ICE enforcement officers, the recent attacks that occurred in L.A., the FBI investigations that went into the anti-ICE activity that seemed very coordinated coordinated, very coordinated threats against those, are some of the examples of what this would apply to,'' he said.
Pushed further, Way noted there were demonstrations against ICE recently in front of the state Capitol, with security locking the doors to keep them out.
"I think that would probably qualify,'' he said.
Tempe Democrat Brian Garcia tried a different approach, asking Way if his legislation would apply to "terrorizing children that are undocumented.''
"We're very familiar with how ICE has been terrorizing children,'' he said to Way. "Because this is civil terrorism, I want to understand what we're talking about.''
Rep. Quang Nguyen, who chairs the committee, cut in to ask Way if he would characterize ICE as a terrorism organization.
"Absolutely not,'' Way responded.
But in casting his vote, Way acknowledged "there's a lot of gray area'' in exactly what his legislation would cover and offered to meet with Contreras to see if there is a way the measure could be amended to make him more comfortable with what is and is not covered.
Changes could be necessary if Way expects his measure to become law.
Gov. Katie Hobbs vetoed a measure last year that would have made it a felony to intentionally interfere with traffic if it results in more than 25 vehicles being held up.
"Recognizing the sanctity of constitutionally protected rights, it is critical we approach these matters with precision to avoid infringing on Arizonans' freedoms,'' she wrote
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