Bill Description: House Bill 519 would establish overreaching and unnecessary new crimes of "impeding critical infrastructure" and "critical infrastructure trespass," which could infringe on constitutional rights. 

Rating: -5

NOTE: House Bill 519 is a toxic combination of House Bills 147 and 148, both introduced during the 2023 legislative session. 

Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

House Bill 519 would create Section 18-7045, Idaho Code, to establish two new crimes carrying enhanced penalties, even though the acts covered by these definitions are already criminalized. 

The bill defines "impeding critical infrastructure" as "knowingly and intentionally impeding the operations of a critical infrastructure facility in a manner not otherwise authorized by law." 

It broadly defines "impede" as "to block the operation of or prevent legal access to a critical infrastructure facility or the construction of a permitted critical infrastructure facility; or "to damage, destroy, deface, or tamper with the equipment of a critical infrastructure facility or a permitted critical infrastructure facility."

It would declare this crime to be "a misdemeanor punishable by imprisonment in the county jail for no more than six (6) months, a fine of no more than ten thousand dollars ($10,000), or both, if the impediment causes damage or economic loss, the cost of which is less than ten thousand dollars ($10,000)." 

It would declare this crime to be "a felony punishable by imprisonment in the state penitentiary for no more than two (2) years, a fine of no more than one hundred thousand dollars ($100,000), or both, if the impediment causes damage or economic loss, the cost of which is ten thousand dollars ($10,000) or more."

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The bill creates a second crime of "critical infrastructure trespass," which would happen "if the person knowingly and intentionally enters or remains in a critical infrastructure facility or a construction site of a critical infrastructure facility without permission of the owner of the property or after notice is given to depart or not to trespass," 

It defines “notice” as "personal communication to the person by the owner or legal occupant, or his agent, or by a peace officer; Posting of no trespassing or no access signs reasonably likely to come to the attention of intruders; or the presence of fencing or other physical barrier designed to exclude intruders or unauthorized individuals."

A first offense would be "a misdemeanor punishable by imprisonment in the county jail for a period of no more than six (6) months, a fine not to exceed one thousand dollars ($1,000), or both." A second or subsequent offense would be "a felony punishable by imprisonment in the state penitentiary for a period of no more than ten (10) years, a fine not to exceed twenty thousand dollars ($20,000), or both."

Some of the actions encompassed by these definitions would constitute trespass, but trespass is already a crime. 

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This bill creates broadly defined crimes and imposes excessive penalties for actions that constitute simple trespass at worst and may well fall under the constitutionally protected rights of free speech and peaceable assembly. A group protesting on a public sidewalk may inconvenience or delay people entering and exiting a government or quasi-governmental facility. Preventing such inconveniences should never be prioritized above the right of the people to protest injustice, however. 

This bill also goes far beyond criminalizing the actions defined above. It also attempts to directly criminalize free speech. It says, "An individual or organization that aids, abets, solicits, compensates, hires, conspires with, commands, or procures a person to commit the crime of impeding critical infrastructure or critical infrastructure trespass is subject to a fine not to exceed one hundred thousand dollars ($100,000), provided that the individual or organization acted with the intent that the crime of impeding critical infrastructure or critical infrastructure trespass be completed."

The list of actions criminalized here is incredibly broad and would encompass a very wide range of speech. Consider specifically the word "solicit," which Merriam-Webster defines as "to make petition to"; "to approach with a request or plea"; and "to urge (something, such as one's cause) strongly." If a radio host or podcaster urged his listeners to protest at a facility deemed "critical infrastructure" and offered an entreaty such as "don't leave until they listen to you," this could be deemed a crime of soliciting others to impede critical infrastructure. 

Even if the protesters never set foot on the actual property of the facility deemed "critical infrastructure," if their presence near or around the facility was deemed to impede access such that it caused the facility "economic loss," the criminal penalties allowed under this law would apply. 

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Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?

Idaho law already prohibits trespassing, vandalism, and any other real crimes that might fall under the new umbrella crimes created by House Bill 519. These new and duplicative crimes would grant special and enhanced legal protections to more than 20 different categories of government and quasi-governmental industrial facilities. 

In general, laws against trespass should be uniform and not contain carve-outs or enhancements for government facilities or favored industries. If there is room for deviation, it is in the opposite direction of this bill; recognize that incidental trespass at a government facility during a protest is a forgivable error during the exercise of a constitutionally protected right. 

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Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

House Bill 519 says the new crimes of "impeding critical infrastructure" and "critical infrastructure trespass" will not apply "to public demonstrations or other expressions of free speech or free association on public land to the extent that such activity is protected under the constitution of the United States or the constitution of the state of Idaho." 

This language is unnecessary because any law that attempted to criminalize activity "protected under the United States constitution or the constitution of the state of Idaho" would already be invalid and unenforceable, even without this statement. The inclusion of this language is intended to pay lip service to constitutional rights, even as the bill attempts to limit and constrain them.

This bill significantly expands the definition of what actions would be criminalized during a public demonstration or protest. It says that actions that "block the operation of or prevent legal access to" a critical infrastructure facility would constitute a crime. 

A large crowd of protesters surrounding a government facility could easily fall under this broad definition, triggering criminal charges against the protesters because simply being in the way would be presumed as criminal rather than as activity "protected under the constitution."

A simple reading of this bill and its predecessors makes it clear that the purpose of these proposals is not to deal with actual trespass or vandalism, which are already sufficiently criminalized. They are, instead to use broad definitions and excessive penalties to weaponize the law against protesters who expose corruption and malfeasance within government and by its corporate partners. 

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