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.
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