AZ Capitol Bldg
Hysteria about SB1142 blew up quickly and in unexpected places. The Arizona Capitol Times, Reason Magazine, local Republican Facebook groups and even my email inbox buzzed with fears that Arizona was preparing to seize the property of peaceful protesters. Both the left and the right seemed to agree that this was a bad bill.
But, most of what I read was flat out wrong. The changes to Arizona law are minor and relatively uncontroversial. Property rights will be strengthened. So will laws against conspiracy and racketeering.
The real story here is the media advancing a prepackaged narrative in defiance of the facts. Arizona is Jon Stewart’s “Meth Lab of Democracy.” Coverage is focused on hyping unfounded fears that are consonant with that image of Arizona. Where others see a wacky, Wild West government, I see a vibrant political culture that other states should envy and emulate.
Chasing the Story
When I called Senator Sylvia Allen’s office, her representative sounded exasperated. The media had picked up a quotation by Senator Allen and presented her as a major supporter of the bill, but Allen did not sponsor the bill. “She was asked a question and she answered it.” Fair enough.
Still, her quotation was being circulated. Citizens were calling Allen and demanding answers. But she didn’t write the bill. She didn’t sponsor the bill. The logical people to speak with and quote would have been the sponsors, Senators Borrelli, Montenegro and Smith. When I contacted Senator Borrelli, he responded so quickly that I thought it was an auto-reply, but, a few minutes later, he sent a follow-up email to elaborate. Borrelli is eager to engage on SB1142.
Will innocent protesters be swept up?
The hysteria swirling around this bill centers on the claim that innocent protesters will have their property seized if anybody at the protest riots. False. A charge of conspiracy requires proof that the conspirators agreed to commit a crime.
The section on racketeering is a bit more difficult to parse, but SB1142 does not rewrite the definition of racketeering from scratch. Rioting is added to a list of offenses—terrorism, homicide, robbery, etc.—which racketeering may include. The same standards of evidence that apply to other forms of racketeering will now apply to racketeering that involves rioting.
Why do we need this law?
But why does the law need to be changed. Isn’t rioting already against the law? And conspiracy? And racketeering? Yes. All of those offenses are crimes, but those offenses are narrowly defined in Arizona Law.
Senator Borrelli
SB1142 broadens the definition of rioting to include property damage. Arizona’s conspiracy law only applies to violent felonies, burglary and arson of an occupied building. Now, you could be convicted of conspiring to riot.
Likewise, Arizona’s racketeering laws are narrowly tailored to only include certain offenses. Usually, said offense must be done for financial gain to be racketeering. Terrorism is one exception. Rioting would be the second exception to the financial gain requirement of the racketeering statute.
The definition of racketeering itself is not being rewritten. Rioting is being added to an existing list of offenses that can be prosecuted under racketeering laws. If protesters are put in jeopardy by this bill, then the law needs a more dramatic rewrite to protect others who are unwittingly implicated in other forms of racketeering.
I contacted Senator Sonny Borrelli for clarity on the bill.
Rioting is not protected in the First Amendment. Rioting is already a Criminal act. Damaging property is also a criminal act. However, if during the investigation it is discovered as fact that a person is being paid to commit these criminal acts, that fact constitutes a criminal conspiracy. This should be covered in RICO and the employer should also be held accountable.
The language of the bill seems to preclude the requirement that rioting be done for profit in order to be considered racketeering; however, simply being at a protest that “goes south,” as the Arizona Capitol Times put it, is not enough to be convicted for rioting, conspiracy or racketeering under the language of this bill.
Civil Asset Forfeiture
Michael Gibbs of the Arizona Tenth Amendment cautioned that this new law creates more opportunities for Civil Asset Forfeiture. In Arizona, your property can be seized if you are suspected of a crime. The process for recovering said property can be expensive, which favors deep-pocketed defendants and harms others. Senator Borrelli disputes this characterization. “As for the property seizure issue, that is up to the Court if convicted.” Regardless of who is correct, SB1142 did not create Arizona’s problems with Civil Asset Forfeiture.
As it happens, the Arizona state legislature is taking on Civil Asset Forfeiture reform this year. Representatives Bob Thorpe of Yavapai County and Eddie Farnsworth of Gilbert in Maricopa County have proposed a number of Civil Asset Forfeiture reform bills.
The strongest proposed reforms have been killed, but the three bills that survive have broad, bipartisan support. In various committee votes, they have passed by 9-0, 8-0 and 7-2 margins. The nay votes have come from Democrats, who have little hope of stopping any legislation in Arizona. These reforms would force law enforcement to properly report and account for seized property; give the property owners receipts and make it easier for acquitted parties to retrieve their seized property.
Is this an anti-Soros bill?
The most frivolous criticism of the bill comes from Reason Magazine. Scott Shackford claims that the bill’s sponsors are short-sighted in attacking left-wing protesters when Tea Partiers will be prosecuted under this bill as well. That supposes that Tea Partiers are rioting, conspiring to riot or meeting the qualifications for racketeering by rioting. This bill does not attempt to exempt conservative groups and there is no reason to believe that Senators Borrelli, Montenegro or Smith would oppose prosecuting Tea Partiers who commit these crimes.
I asked Senator Borrelli if this bill was written in response to the recent Berkeley protests or the Fountain Hills protest that shut down traffic to a Donald Trump rally. He responded that this bill was incubating before those incidents.
Watching the Watchers
Getting to the bottom of this story was not hard. Senators Kavanagh, Allen and Borrelli were all happy to address my concerns. The text of the bill, a fact sheet and a record of how everyone in the Arizona Senate voted are easily accessible on azleg.gov. The changes to the law are even highlighted in blue and red to show additions to and subtractions from current law.
Michael Gibbs ventured a theory as to why the coverage has been so shoddy. Twenty years ago, your local newspaper would be delivered to your door step the next morning. When a story broke, that is when you would find out. Now, newspapers are competing with 24 news networks and social media to be first. Accuracy suffers.
SB1142 shows what is best and worst about Arizona’s political culture. Our political culture values liberty and is skeptical of government. In this case, that skepticism was exploited to cause a digital stampede.1
Texts cited:
[1] http://azcapitoltimes.com/news/2017/02/22/arizona-senate-crackdown-on-protests/
[2] http://reason.com/blog/2017/02/23/arizona-bill-to-crack-down-on-rioters-co
[4] https://apps.azleg.gov/BillStatus/GetDocumentPdf/446080
Remember all those Tea Party riots, when they, um, called Democrats bad names? And used racist taunts in such an insidious manner that it couldn’t be recorded?
Personally, I am not a fan of conspiracy laws in general, whether or not they incorporate rioting.
If I say to you “hey, let’s go break some shit downtown”, whose rights have I violated and what harm have I caused? Answer: none and none.
And then, if you go downtown and break some shit (but I do not), then somehow even though you are the one who caused property damage, I am the one guilty of “conspiracy”.
If I say to you “hey, let’s go break some shit downtown”, whose rights have I violated and what harm have I caused?
Well, you also need to take action toward a criminal end to get tagged with criminal conspiracy. Consider: You and a buddy cook up a plan to kill his wife. Just talking, so far, right? No blood, no foul. You go out and you buy a gun, some duct tape, a shovel, all the stuff your plan calls for. Those purchases, in isolation, are perfectly legal, nothing to arrest you for. You take your bag of weapons and whatnot to your buddy’s house. In isolation, again, no crime. He lets you in and you walk into the living room where his wife is. Still no crime, in isolation. Even if a cop was there, wouldn’t be anything he could do, right?
Now, should you be exposed to arrest before you actually put a bullet in your buddy’s wife? I think so. That’s what conspiracy laws are for – to let us take a series of actions which legal in isolation but done in order to commit a crime, put them all in context, and arrest the perps before the crime is committed.
I think that’s a very interesting question to be done for a future think-piece on this site.
I would disagree with you, as I don’t believe in the concept of pre-crime. However, I’m fully cognizant of the fact that I’m an extreme outlier on this, and would always like to read counter-arguments.
And for those reasons, at common law, it was a viable defense to a charge of conspiracy say, in effect “I withdrew from the conspiracy prior to my arrest, or took steps to rebuke it and walk away.” Legislators of course didn’t like this, and have basically written those defenses out of the law.
“Now, should you be exposed to arrest before you actually put a bullet in your buddy’s wife? I think so.”
And I just don’t agree. Because no one’s rights have been violated until I actually shoot someone.
But in your scenario, what is the earliest point in the conspiracy at which I have committed a crime? After discussing the plan? After buying the gun? After walking into the house?
Furthermore, let’s suppose that at the moment I am about to pull the trigger, I get cold feet and change my mind. No one is harmed. Am I nevertheless guilty of a criminal conspiracy in attempted murder?
But in your scenario, what is the earliest point in the conspiracy at which I have committed a crime? After discussing the plan? After buying the gun? After walking into the house?
Furthermore, let’s suppose that at the moment I am about to pull the trigger, I get cold feet and change my mind. No one is harmed. Am I nevertheless guilty of a criminal conspiracy in attempted murder?
I remember having these exact discussions in crim law class 1L year. To answer your questions, it depends on the jurisdiction. Some require an “overt act” before the conspiracy is consummated, so it would require the agreement with the buddy to kill his wife and the purchase of the gun for the purposes of killing his wife. Others don’t require the overt act, but require two-way agreement. If your buddy is an undercover cop, there is no conspiracy. Some jurisdictions allow you to “withdraw” from the conspiracy, but you generally have to do something to “foil the plot.”
I’m curious as to what you think of other inchoate crimes like attempt. If I point a gun at you with the intent to kill you but haven’t pulled the trigger, have I committed a punishable crime? What if I pull the trigger, but the gun doesn’t fire? What if I pull the trigger, the gun fires, but it completely misses the target? I mean, you’re getting pretty close to “not touching you, neener neener” territory if you get rid of attempt laws. So, you pointed the gun at the person, told them to rot in hell, and pulled the trigger, but through your incompetence you didn’t actually kill the person? Okay, no charges, hopefully you’re just as much a bumbling idiot when you try to kill them tonight.
s/consummated/created
If the plan calls for buying a gun and that’s the first act you take in furtherance of the plan, under classic conspiracy doctrine, that’s when you have committed the crime.
If you change your mind before busting a cap in someone’s ass, that is known as abandonment and withdrawal, which gives you an affirmative defense.
The argument that no one’s rights have been violated until the ultimate criminal goal of the conspiracy has been achieved is a tough one. Ultimately, though, I suspect it comes down to this:
Most people think that if we know a crime is being planned and people are starting to carry out the plan, its kinda dumb to sit around and watch them until the crime is actually committed and people are actually dead or have their stuff taken before we do anything.
Imagine that our national security people had actually been on the job before 9/11 and knew all about the upcoming attack and the preparations. If we wait until the attackers actually commit a crime, then we’d still have thousands of people dead. The world just doesn’t work that way, and never will.
I suspect there’s something more nuanced to be said about violation of rights, but it won’t gel for me right now.
But hadn’t at least some of the 9/11 guys overstated their visas, thus actually committing a crime?
Might check out some of IDressler’s work on the subject. He and I argued about it quite a bit although he’s far more practiced than I. The short version is I’ve become convinced that we can probably axe conspiracy if we keep attempt but also axe the exclusionary rule.
Question: If you bought a gun, were camped out on a hillside beside the house and had your rifle sighted in on the wife and your finger resting on the trigger when you were approached by a cop and you stopped, should you be arrested? I would think yes.*
*Brandishing would not apply since nobody saw you with your rifle out and finger on the trigger.
And properly so based on probable cause for an Assault.
Damn. Well done.
Seconded. Actual reporting. Marty must have gone to Columbia, or at least visited.
I know, he, like, checked sources and investigated leads and stuff. I honestly did not know people still did this. Bravo.
Always interesting to get into the nuts and bolts of state and local government.
I’d be really interested to know more about the struggle to get these passed looks like.
This is Arizona, I’m not hopeful.
Fair. I’m sure the process is interesting…as interesting as anything this CSPANey can be, that is.
You’re not interested by the cranks who call into the morning show?
If you’re interested, the video is on the AZ Legislature’s website. http://www.azleg.gov/archivedmeetings/ You can also watch committee and floor sessions online in real time. The asset forfeiture bills I alluded to are HB2170, HB2243 and HB2477. It’s a little bit of work, but what you would do is (1) search for the bill; (2) look at the dates that the bill was debated by what committee and (3) pull up the video for the day and committee you’re looking for. You may have to skip around a little bit to find the particular bill.
You can also see who supports and opposes the bill in the RTS (Right to Speak) system. So, for example, the CAF bills I mentioned had a lot of support from citizens and even some law enforcement. SB1142 had a lot of people log on and ask to speak against it.
Beyond that, it’s basically people from the Tenth Amendment Center and other organizations talking to legislators by phone, email and in person to get bills written and passed.
Thanks for the info! Great piece, by the way.
I’m planning to go riot tonight.
There, now that you’ve all read this, and not turned me in (presumably, you rat fink bastards!) you are all implicated in my conspiracy to riot. You can expect a nice man with law enforcement to be paying you a visit around 2 a.m. tonight.
Exactly. So when some guy posts on some social media platform, “OMG TRUMP IS COMING TO TOWN LET’S SHOW HIM WHO’S REALLY IN CHARGE HERE”, is everyone who reads that message a part of the conspiracy to riot?
More like: “the plan is to meet downtown at the museum at midnight, don’t forget to bring a baseball bat this time”
I bet it was Col. Mustard!
It’s always Col. Mustard.
But then it would have been a candlestick instead of a bat.
Col. Mustard did it in the Conservatory, with Prof. Plum.
There was a group of lefties who were conspiring (but were caught by Project Veritas) to shut down the DeploraBall by gassing it with butyric acid. Those caught on tape had purchased tickets and everything. Do you think they shouldn’t be charged with anything since they didn’t succeed and were caught?
Mmmmm butteracid.
No, I honestly don’t. They didn’t do anything; with all do deference to sarcasmic, intentions don’t matter.
Again, I think this is a real gray place where people can reasonably disagree with each other. I don’t think anyone who takes the opposite side of this is crazy or stupid or anti-liberty. I just don’t agree.
They should be charged with committing any actual violations of people’s rights, including property rights, if any occurred. If they weren’t invited to the event, were they trespassing? Did they commit fraud in trying to gain entrance? Did they commit property damage in trying to release butyric acid? Those are actual violations of rights. Attempting to commit a crime but not actually committing a crime shouldn’t be illegal.
If someone is conspiring to murder me and my family and was caught in the planning stage, personally, I’d prefer the person to be locked up so I don’t have to live my life in perpetual fear because I don’t know when they’re going to attempt to go through with their actions again. I’m not going to risk being off my game the day they do go through with their plans and not be able to kill them in direct self defense.
Legal trivia:
I’m pretty sure the only inchoate/attempt crime that isn’t matched with an actual crime is suicide. Its illegal to attempt suicide, but its not actually illegal to commit suicide.
So, if there are no conspiracy or attempt crimes, how exactly would this plot have been stopped before it succeeded? They had tickets, so trespassing wouldn’t work. Let’s assume it was legal for them to buy and possess butyric acid, because it is. So they can walk into the event carrying butyric acid, and they don’t commit a crime until the acid is released, thus accomplishing the commission of the crime.
Without writing an article about it, there are appropriate foundations to support crimes of Attempt consistent with NAP in a libertarian framework by an analogy to tort and contract. Consider the interrelation of the elements of common law Assault, the doctrine of anticipatory breach, and the necessity of mens rea vis. good faith.
Okay but there is no plan. And I didn’t *say* to bring a baseball bat, but I didn’t *not* say to bring a baseball bat either….
I would hope the prosecutor doesn’t charge, or if he does the jury pulls some nullification.
“”I’m planning to go riot tonight.””
(raises fingers in metal salute)
MOD: link repaired
+1 Metal Health
Can you see the link? or are you telefuckingpathic?
Because this is actually what i’d tried to link
What else would it be?
I can not pretend to understand the minds of wizards, being but a lowly knight errant.
Way too many hours watching early MTV and Friday Night Videos on NBC during my youth.
It could have been The Clash.
Interestingly – i did just discover that by right-clicking dead links and “inspecting element” you can pretty much figure out what said ‘tard like myself was trying to link to.
I still have not determined why it is i break links so often using the Monocle “a” feature.
I think you SF’d the link. At least, it’s not working for me.
Look if you want to spend your evening playing League of Legends, we won’t judge. I mean, we will, just not to your face.
I’ll spend my evening watching sports like a respectable person, thank you very much.
I only play whatever that thing is you referenced on the weekends.
I only play whatever that thing is you referenced on the weekends.
League of Legends (by Riot Games) is an online game with a reputation for having a toxic player base. I just figured you were omnipresent in toxic online communities.
Well now that you put it like that, I’ll check it out. I should be present in as many toxic online communities as I can be.
I just want you to be your best self, yo.
Then investigate Dota 2.
It’s like League of Legends, but you can’t surrender and are stuck for full 45-80 minutes of misery.
Also, as a game, it’s strictly better designed…
Like this one?
It’s less funny when it’s explicit, but yes, that’s what I was going for with that joke.
Talking without more isn’t a criminal conspiracy. You’re all fine.
+1 Woodchipper
You uncovered some fake news. I saw the Internet blow up over this one. Good to know that it isn’t really insanity, just bad reporting.
Here in Pima county, I don’t trust Barbara LaWall. Remember, regardless of the outcome, the process is the punishment. And I guarantee it will be used as such.
That’s right. In talking with Mike Gibbs of TAC, I found that you can post bail for your property seized under CAF. But most people don’t know that. You can’t exercise a right that you don’t know you have.
I can’t seem to see monocle doing anything in FF…wtf?
NEVERMIND
I accidentally deleted it.
* SELF SLAP *
this keeps up I am going to have to revoke my own license
P.S. not sure if I have the latest updates for it…anyone care to share?
OT: Thanks for setting this up. It’s a much more pleasant lurking environment. The only thing I think I’ll miss from the “Other” site is Agile Cyborg.
Invite him over. Does anybody know how to get ahold of Herc?
Hercules Triathlon Savinien? Why would you want to bring him here?
Walls of text
The real story here is the media advancing a prepackaged narrative in defiance of the facts.
*clutches chest, falls to floor*
“”most of what I read was flat out wrong“”
buying tickets to an event you plan on committing a crime in might be fraud. I don’t really know. this is a weird area.
I am a fan of the speeding isn’t a crime, drug possession is not a crime, but conspiracy to commit murder seems to be different.
What they’re trying to get at is the kingpins. Without some kind of conspiracy, racketeering, etc. law to back them up, the people who organize and pay for these crimes will just keep on doing it. They don’t commit the actual crimes of violence and property crimes themselves, you know. They just pay others to do it. You want these crimes to stop? Then you need to do more than arrest the useful idiots.
What about “aiding and abetting”? Doesn’t that cover there’s no crime until there’s a crime?
Just as a devil’s advocate here, you should (theoretically) be able to increase the cost to the kingpins by increasing the punishments to the useful idiots.