This week at the Arizona Legislature: GOP creates crimes for ICE protesters, pot smokers

The Arizona House of Representatives later on Monday is scheduled to vote on a measure that would create two new crimes: civil terrorism and subversion.

The bill’s sponsor says it’s aimed at protestors who are critical of ICE, but some of his colleagues say it may have unintended consequences.

Howard Fischer of Capitol Media Services joined The Show to talk about what to expect this week at the state Capitol.

Full conversation

BRODIE: Good morning, Howie.

FISCHER: Good morning. But I'm out filling up gas cans because Lord knows what's going to happen.

BRODIE: Seriously not a bad idea. So tell me about this bill. It's coming up for a roll-call vote in the House today, and it sounds as though it's gone through some changes in the recent past.

FISCHER: This was crafted by the Manhattan Institute. They're a fairly conservative organization. In fact, one of their founders later went on to become the CIA director. The idea is to close some — what people believe are some — loopholes in terms of people stirring things up, trying to subvert the government. So it had some fairly broad language in there.

For example, advocate to try to influence behavior of civilian population or stir up fear and such. And the problem with that, according to Rep. Alexander Kolodin (R-Scottsdale), is, wait a second — what stirs up fear?

He said, for example, he had put out a bill that said, "Look, we may not have Colorado River water. Maybe you need to figure out what's going on. And maybe the water companies in the cities and such need to tell people what happens if there's no water. Could I have been guilty of civil terrorism?"

Then you've got the whole issue of trying to subvert the government. And his point is, "Well, wait a second. Again, as conservatives, it's our job to keep the government from just growing like Topsy. And, and so if we're trying to get rid of certain elements of the government, are we trying to subvert the government?"

So the bill that finally got out of what they call Committee of the Whole debate calendar last week is watered down somewhat. It's scheduled for a floor vote today. But there's still a lot of folks who think it goes too far. I'm sure there are a lot of folks who think it doesn't go far enough.

Capitol Media Services

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BRODIE: Does it seem like this might be a party-line vote coming up later today?

FISCHER: I'm guessing it will be. Democrats as a whole are very concerned about things that they believe will entrap people who are just doing legitimate protest.

If you are out there and you're blocking traffic, for example, are you trying to subvert society? Are you trying to scare people into doing something? And it's the concern that when you legislate this way and you've got fairly broad terms, what gets swept in with that?

BRODIE: Right. Howie, another bill that's gotten a lot of attention and has also been diluted somewhat is the proposal dealing with marijuana smoke in residential neighborhoods. You'd written about how the sponsor, Sen. J.D. Mesnard (R-Chandler), sounds like he was just kind of tired of smelling people smoking pot in his backyard.

What are some of the changes that have been made to that bill that's coming up for a roll-call vote in the Senate?

FISCHER: Well, as originally crafted, essentially, if I'm sitting in my backyard, I smell marijuana from my neighbor or however far away it is, a crime's been committed. Well, OK, what else should be a crime? I mean, I don't happen to like my neighbor's use of lighter fluid or something like that, or is tobacco smoke or is pipe smoke or anything like that.

And it became the kind of situation where a lot of folks said, "What exactly becomes a nuisance?" So he's trying to redefine what is "excessive marijuana smoke." So it's A: detectable by a reasonable person of ordinary sensibilities, occurs for more than 30 consecutive minutes on a single occasion. If it crosses the boundary line, it unreasonably interferes with the use and enjoyment of nearby property, that becomes considered a nuisance.

They've also taken out the criminal penalties. There obviously are concerns, you know, since we've legalized marijuana both for medical use in 2006 ... 2020, we did it for recreational use. There's a lot more people smoking.

Now remember, you cannot smoke in public. In other words, you can't go out to just outside the Capitol and light up a doobie.

But you can smoke in your backyard. Question becomes, at what point your ability to smoke — or whatever you're doing that's causing odor — causes such concern for the neighbors that they can't reasonably enjoy their yards?

BRODIE: I mean, it kind of raises the question, and you'd reported earlier that the bill specifically excluded for as you referenced cigarette smoke, pipe smoke. So ... were there questions raised about whether this is constitutional or not to criminalize what is an otherwise legal behavior?

FISCHER: Well, that's going to be certainly a question. I think that the attorneys who have looked at this have said you can't single out one particular thing as being offensive to you. Is marijuana smoke any more offensive than tobacco smoke? Now, obviously, if it's so intense ... we don't want the 4-year-old getting a contact high from what the neighbors are doing.

But by the same token, is it any more offensive than, again, charcoal lighter fluid? Or somebody working on their car and the diesel fumes coming over the fence? And that becomes a really tricky problem when where courts will say you can't decide unilaterally that this is offensive and this is not.