The head of the Arizona Police Association is rejecting arguments that legislation to include rioting in racketeering and conspiracy statutes will chill the rights of Arizonans to protest.
Levi Bolton told Capitol Media Services Monday he does not want changes to SB1142, which he helped craft, despite claims by foes that it needs to be curbed — or killed entirely — to prevent abuse by police and prosecutors.
The legislation approved by the state Senate last week and awaiting House action expands the definition of rioting, which already is illegal, to include damage to property. More significant, it allows prosecutors to charge people with conspiracy ahead of any actual event and permits prosecutors to go after the assets of those they contend were involved in planning a demonstration.
And under current racketeering laws, the burden of proof to take someone’s property does not require anyone actually be charged with a crime, much less convicted.
Bolton said SB1142 provides prosecutors an additional tool to go after those who are involved in planning demonstrations. But he said it would not be abused because the only way it could be used to charge an organizer criminally or go after that person’s assets would be to show a “nexus’’ to those people who are actually breaking the law, like smashing windows.
He acknowledged he knows of no situations in Arizona where such a law would be needed. But he said that’s irrelevant.
“Just simply because something hasn’t happened yet doesn’t mean’’ it won’t, he said. “There’s a lot of things we haven’t seen since the 60s: wholesale rioting by folks that are employed to do such things like that.’’
And Bolton insisted there’s reason to believe this change is necessary.
“Without divulging some things that law enforcement has shared with me, there is a movement,’’ he said.
“We know there is a move for organized protests that have called for not just acts of civil disobedience but violence,’’ Bolton continued. “It’s arbitrary, it’s not necessarily targeted as, ‘Damage this, do this, you need to arm yourselves with a minimum of these things so you can break glass and Molotov cocktails.’ ‘‘
But foes like Sen. Steve Farley, D-Tucson, said the proposed statute is overbroad and would have a chilling effect on the right of groups to demonstrate for fear a single bad actor could result in racketeering charges against organizers. And Farley sniffed at the idea that expanding the laws will give police the opportunity to stop riots before they start.
“I’d like to stop crimes before they start, too,’’ he said. “But you can’t do that if you’re not using thought police.’’
Farley also said SB1142 is a solution — and not a good one — for a problem that does not exist.
“It’s not something where we have an ongoing bunch of people trying to commit mayhem for the sake of committing mayhem,’’ Farley said. “If it happens, it’s a few individuals making that happen.’’
Bolton did agree with Farley on one point: the effect of the law on those planning protests, though he sees it through a different lens.
“What we want it to do is have a chilling effect that you would come into the great state of Arizona with the idea that you can have an unfettered ability (to riot) because Arizona doesn’t have a statute to address it, and create wholesale lawlessness that could either jeopardize Arizonans’ lives and welfare, but certainly to bring about extensive property damage with no accountability.’’
Bolton said these are minor changes: including property damage in rioting and then allowing those racketeering and conspiracy statutes to be used to go after people who riot and those who plan the events.
He criticized those who “leap to some kind of legal analysis’’ that it infringes on the First Amendment right of lawful assembly. The key, he said, is “lawful.’’
“The word ‘protest’ is not there,’’ Bolton said. “It allows people to redress their government.’’
Anyway, he argued, the fact that a demonstration turns violent would not make everyone liable.
“The idea that you are present at a scene does not invoke the statute,’’ Bolton said.
Farley said the big concern is putting all this in racketeering statutes, where prosecutors can seize the assets of those they contend were involved in planning something that could be a riot.
“You don’t have to prove before a court that they’re guilty of it because it hasn’t happened yet,’’ he said. And Farley said the changes don’t adequately address the question of culpability “between the organizers and those people who may be providing the violence.’’
Bolton said prosecutors would still have to prove a “nexus’’ between organizers and those breaking the law before being able to involve the civil forfeiture statutes.
“We’d follow the money,’’ he said, such as who paid for buses parked off site and whether those getting off the buses have masks and crowbars.
“In cases where you see five buses parked off site and they all are owned by a phantom company owned by (an individual),’’ Bolton continued, and whether people who show up have masks and crowbars.
He said there are ways to prove a conspiracy.
“Sometimes they’re stupid enough to put them in flyers,’’ Bolton said. “Sometimes people actually have them in possession when they’re arrested.’’
He acknowledged that it does not require a criminal conviction to seize someone’s assets, something that requires proof “beyond a reasonable doubt,’’ but merely convincing a judge the “preponderance of the evidence’’ shows a link. But Bolton, who was a police officer for 32 years, said that’s not as easy to prove as it seems.
Anyway, he said, this new law would be used only in “extraordinary cases’’ where prosecutors believe that simply charging people with rioting under the criminal code is not enough.
“We can not only go after two or more people involved but the organizers and the planners,’’ Bolton said. And he said prosecutors have to comply with “the letter and the spirit’’ of what those racketeering laws allow.
Farley, for his part, has an alternate solution to the problem.
“If you really want to stop the protests the most important thing you could do is actually start governing based on reasonable principles,’’ he said.
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