Protesters sit along Central Avenue on June 4, 2020. The march was one of several countrywide protests against police violence spurred by the killing of George Floyd in Minneapolis.
A law that would make it a criminal for protesters to impede streets with their rallies is awaiting Governor Katie Hobbs’ decision.
The proposal would make it a class 6 crime for a pedestrian to impede with traffic on any bridge, tunnel, or highway carrying more than 25 people or cars, or any roadway leading to an airport, unless they have legal authority to do so and have already been warned.
Sen. John Kavanagh, R-Fountain Hills, the bill’s sponsor, explained to the House Judiciary Committee last month that a class 6 felony requires police to tell a person to move if there is a large blockage of cars. If the person refuses, the felony is charged.
Obstructing a highway is currently classified as a class 2 misdemeanor under state law, punishable by up to four months in jail and a $750 fine. A class 6 felony carries a presumptive one-year prison term.
Senate Bill 1073 passed the House of Representatives on March 26 by a vote of 36 to 19.
Kavanagh acknowledged that protesters blocking traffic is already a criminal under state law, but he believes the penalties should be greater if busier roads are obstructed.
“I’m simply stating that greater harm requires a greater penalty.” If you’re going to obstruct a large number of people, even after being instructed to move, you’ve just committed a criminal, he said. “I think a lot of them, when told that, will get up and we can restore traffic”
The bill is Kavanaugh’s third modification to state traffic-blocking legislation. It was also changed in 2016 after a rally scheduled by former President Donald Trump was canceled due to protesters blocking a road leading to the rally site.
Hugo Polanco of the American Civil Liberties Union testified before the committee that SB1073, with its “overly broad” language, would significantly suppress protected First Amendment expression.
“Arizona law already forbids the action the sponsor claims he wants to outlaw,” he added. “Under SB1073, the police’ initial verbal admonition to desist is not required to be lawful. The act grants police the authority to order people out of public places without provocation.
Katie Gipson McLean, a public defender in Maricopa County, also told lawmakers that the practicality, or lack thereof, of SB1073 would make it nearly impossible to use in court.
“I would have a field day and would love a trial where prosecutors and officers look like fools for claiming there were 25 or more people present.” “That is not being recorded anywhere,” she replied. “We’re going down a rabbit hole that I don’t think prosecutors want to go down. You must prove each ingredient beyond a reasonable doubt, which will be extremely difficult given the way this is written.”
Rep. Alexander Kolodin, R-Scottsdale, rebuffed criticism that the law is ambiguous, saying he feels it adequately tackles situations similar to recent ones.
“‘Intentionally interferes with passage on any route,’ is about as narrow as you can make the line. The ACLU seeks to restrict conservative political speech, according to the speaker. “I actually view this as a very rare criminal justice bill… tailored towards protecting the First Amendment.”
Democrats were less supportive of the measure. While the remainder of the committee voted in favor of the bill, Democrats on the panel appeared hesitant to give law enforcement the authority to criminally prosecute Arizonans who attempted to exercise their first amendment rights.
Rep. Melody Hernandez, D-Tempe, said she has heard from several demonstrators who claim they have been unlawfully harmed by the police.
“I have a lot of concerns with this bill not because of the bill itself, but because of my lack of faith in our police department to properly implement the laws that we create.”
Rep. Analise Ortiz, D-Phoenix, has stated that she hopes the bill is vetoed, and that its ramifications should “terrify” people across the political spectrum.
“I’m, frankly, tired of politicians and people on the right who get mad at us when we kneel, get mad at us when we boycott, get mad at us when we use our freedom of speech to stand up against things that are wrong,” she said in a statement. “So, yes, perhaps people have taken drastic measures, but that’s what happens when the government doesn’t listen to you.”
Ortiz stated that, as someone who has been to protests that have been broken up by police, she knows firsthand that the police frequently do not care about giving people enough time to respond to the warning before taking further action, making the mandatory warning required by SB1073 less effective than one might expect.
“I have heard them say, ‘We are going to disperse tear gas, so you better get out of here,’ and then, without giving people, including women and children and people with disabilities, anytime to get away, they disperse the tear gas seconds afterwards,” she went on to explain. “That is how our police behave.”
She claimed that this bill will give law enforcement even greater authority to go after persons who express dissident opinions about current events and the government.
This occurred in October 2020, when 18 protesters protesting police brutality were detained and accused as members of a fake “ACAB” street gang. The charges were withdrawn after it was discovered that Phoenix Police did not have sufficient reliable evidence to back up their assertions.
“They took our laws and they used them to falsely charge more than a dozen political protesters as gang members,” Ortiz said in a statement. “Ultimately, those charges were dismissed by the Republican county attorney when they realized what an absolute abhorrent civil rights violation (it was), and it wasn’t that they didn’t know it was happening, it was that the public found out.”
SB1073 passed both the House and the Senate with mostly Republican support, and it now awaits Hobbs’ decision.