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Idaho Court of Appeals: What good is power unless you can abuse it

Idaho Court of Appeals: What good is power unless you can abuse it

Wayne Hoffman
August 14, 2014
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August 14, 2014

Let’s suppose for a moment that your neighbors are in trouble. For whatever reason, they’ve fallen on rough times and can’t pay their bills. Things are so tough that they’ve even missed payments to the city water department, prompting the government to disconnect service.

Could you help them? Doing so couldn’t possibly be considered illegal, could it?

In fact, it can, as Michael Freitas of Spirit Lake found out. A Spirit Lake officer noticed Feritas had connected a hose to an outside spigot, and that hose connected to his neighbor’s home, whose water service had been turned off because of non-payment. The officer issued a warning to Freitas: City law says “it shall be unlawful for any person to … permit connection or delivery of water to third persons for use within a residence or other building not otherwise provided with water service.”

Freitas figured he was doing nothing wrong. After all, he was providing water that had gone through his meter; he had paid for it. The city disagreed, fining him $500. Freitas fought the fine, saying that the city’s ordinance is unconstitutional, and as written would even prevent him from giving a glass of water to his neighbor or anywhere else the city doesn’t provide water service.

The case went before the Idaho Court of Appeals, which sided with the city.

“The conduct that Freitas engaged in—hooking a hose from his home to his neighbor’s home to provide that neighbor with water within his home despite termination of the neighbor’s water service by the city—is the quintessential example of the conduct the ordinance was designed to prohibit,” the court ruled. “This and similar forms of unauthorized usurpation of the city’s exclusive authority to provide domestic water services are the core of circumstances to which the ordinance can unquestionably be constitutionally applied. Law enforcement is not empowered to restrain all conduct involving provision of water outside of the city water system. Only when an individual takes the additional step of setting himself or herself up as the provider of water service to a residence or other building where water service has been discontinued may the ordinance be invoked.”

The court said it didn’t want to address “what ifs” such as the question of “what if Freitas had brought a glass of water to his neighbor.”
But I will: What if Freitas had brought a glass of water to his neighbor? Or what if Freitas had brought gallon jugs—several of them—filled with contraband water to his neighbor? Or what if his neighbor’s house was on fire? Under the reading of the ordinance, the “delivery of water,” for whatever purpose, is illegal.

Defenders of the city claim the government has a legitimate interest in stopping people from using garden hoses from delivering water. The biggest of these is that Freitas’ neighbor is obviously a freeloader who should pay up.

Clearly, if the neighbor owes the city money, the city has plenty of legal avenues available to try and collect. Trying to enjoin a neighbor from helping a neighbor seems conduct befitting a Third World tyrant, not a city government in Idaho. Helping your neighbor out by giving them water shouldn’t be a criminal act in 21st century America.

Freitas told the Coeur d’Alene Press he’s still fighting to defend his right to do what he wants with the water he paid for.

“It's like the Founding Fathers said, ‘If you don't exercise your rights you don't deserve to have them,’” Freitas told the newspaper. “So I exercise mine every single chance I get.”

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