Break a window, get a felony? This bill is heavy-handed

Turning crimes that are largely misdemeanors into felonies just because they occurred at protests seems more retribution than justice or deterrence.

Arizona lawmakers pushing House Bill 2309 say they’re trying to deter people who contemplate violence at protests.

Activists and free-speech advocates warn that the bill will, in fact, deter people from contemplating the idea of protesting itself.

Both sides exaggerate, but the latter has a better argument: The legislation is heavy-handed and poorly timed.

First, let’s get this out of the way: Violence has no place in protests. Those who commit it – and those who foment it – should be prosecuted.

Vandalism and criminal damage should be prosecuted.

Arson should be prosecuted.

Assault should be prosecuted. That includes

assault of law enforcement officers.

Nothing precludes authorities from arresting and booking people on those and other charges. Or precludes city and county attorney’s offices from prosecuting on those charges. Or precludes judges from handing down appropriate sentences upon conviction.

HB 2309 ups the ante by increasing the severity of the penalties of crimes at protests. It takes acts that are mostly misdemeanors and converts them into felonies under a new classification of “violent or disorderly assembly.”

Law enforcement has a wide berth at interpreting what constitutes disorderly assembly.

The effects are serious. Under House Bill 2309, if you attend a protest of seven or more persons and cause property damage or injury, you’ll be arrested on a Class 6 felony. A conviction carries a presumptive term – the baseline a judge uses before weighing mitigating and aggravating factors to determine sentencing – of a year in prison.

Those offenses include obstructing a street or highway, or graffiting, say, “Black Lives Matter” on a building. It also includes criminal damage above $250, such as smashing a window. (The current standard for a Class 6 felony is $1,000 to $2,000 in criminal damage.)

They include defacing a public monument or structure of a park. They include anything constituting public nuisance, arguably even excessive noise.

An argument can be made that HB 2309 could cause some to reconsider attending protests. Knowing that an unlawful act is no longer a misdemeanor resulting in as little as a fine or dismissal but rather a felony can be sobering, no doubt.

But how many among us who protest for one political or social cause or another plan on committing unlawful acts?

That said, HB 2309 is a ham-fisted way to counter low-level criminal crimes. Should an act of vandalism or criminal damage committed by a culprit in the dead of night be treated any less seriously than one committed during a protest?

Is obstructing a thoroughfare during a protest in a group of seven or more people truly a higher crime than blocking it as a group of two?

The elevation of severity smacks of retribution rather than justice or deterrence.

And should law enforcement be handed a such a powerful tool?

That question is more concerning given the baffling case involving the Maricopa County Attorney’s Office and its indictment on gang-related charges of more than a dozen individuals following a protest in October.

The protest appeared unremarkable except for “incendiary devices that emitted smoke at officers” and resistance when officers arrested them, according to a police official.

The prosecutor’s office and the Phoenix Police Department sought street gang charges against the protesters apparently because the group was dressed in black, carried umbrellas and collectively used phrases “All Cops Are Bastards” and “ACAB.”

(County Attorney Allister Adel dropped the charges in February after heavy media scrutiny; an independent review into how the case was handled is pending.)

If free-speech advocates needed a bogeyman against HB 2309, the county attorney’s office scared one up. That the legislation’s felonies-at-a-protest list includes setting off fireworks is not lost on them.

Prosecutors have wide latitude and great powers, not the least of which is to present mostly one-sided and uncontested evidence to grand juries to secure an indictment.

Felonies carry grave potential consequences: prison time, fines, legal costs, job loss and suspension of rights, including the right to vote.

They shouldn’t be used as a cudgel against protesters who commit what are statutorily misdemeanors. There are sufficient laws on the books and tools for law enforcement to deal with unlawful acts in protests.

Legislators who purport to champion justice should bear that in mind when HB 2309 comes up for a vote.