Maricopa County prosecutors send Sinema bathroom case back to ASU police for more information
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More than a month after activists ambushed Sen. Kyrsten Sinema on the Arizona State University campus, it is still unclear if the activists will face criminal charges in relation to the protest.
On Oct. 20, the ASU Police Department asked the Maricopa County Attorney's Office to charge four people with misdemeanors after they recorded themselves protesting against Sinema on Oct. 3, interrupting a class she was teaching and continuing to follow and record Sinema in the bathroom on campus.
"Speaking generally, and not referring to any specifics of this case, it’s unlawful to stage a protest in the hallways directly outside of a classroom on ASU campus," ASU police spokesperson Adam Wolfe told The Arizona Republic.
As of Nov. 8, the Maricopa County Attorney's Office was still considering charges of disorderly conduct and disruption of an educational institution, and had sent the case back to ASU police for additional investigation.
An ASU police spokesperson confirmed on Wednesday that police are still working on the case.
Sinema previously called activists' behavior 'unlawful'
This comes after Sinema's office released a statement on Twitter condemning the "unlawful" actions of the protesters.
Sinema's statement and the video of the protest went viral online, even garnering a response from President Joe Biden.
"I don't think they're appropriate tactics, but it happens to everybody ... the only people it doesn't happen to are people who have Secret Service standing around them. So, it's — it’s part of the process," Biden said.
The protesters and activists were with Living United for Change in Arizona, or LUCHA, and were addressing Sinema at the time blocking Democrats' efforts to pass the Build Back Better Act.
LUCHA said the protest was a culmination of many months of rising tensions between Sinema and her constituents, a result of undelivered campaign promises and lack of communication with local public. The organization has not replied to requests for comment since ASU police recommended that its members face criminal charges.
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Some defend right to protest on college campus
Some have spoken out against the possible charges, defending the right to protest on campus as protected under the First Amendment.
“This has to stop... We cannot tolerate actions that chill free speech. We stand with the organizers who are putting everything on the line to hold their elected officials accountable," the American Civil Liberties Union said on Twitter.
Also in a tweet, the ASU Young Democrats wrote: "Protestors should not be punished for making their voices heard. We stand with them. Prosecutors must not pursue these charges."
"I think these students were just trying to express their opinions, and they weren't really being heard any other way." Cameron Adams, president of the ASU Young Democrats, told The Republic.
Many argue that the protest was not disruptive to the school's essential function because it was held outside of any classrooms and because the senator had been avoiding direct contact with constituents.
ASU's College Republicans disagreed vehemently on Twitter, arguing "this isn't activism, this is harassment. Bullying your elected officials in a private setting is inappropriate and also illegal."
Lawyer says County Attorney's Office may be hesitant after gang charges case
David Snyder, executive director of the First Amendment Coalition based in California, told The Republic that, in his view, the First Amendment isn't even at issue here.
"Even if you're in a public forum, the First Amendment doesn't protect you against violating other criminal laws," Snyder said.
Tyler Steele, an attorney with Matthew Lopez's criminal defense law firm in Phoenix who also previously worked in the Arizona Legislature, told The Republic that the County Attorney's Office's decision, in his view, is more politically charged than others for a number of reasons.
The County Attorney's Office has been under widespread scrutiny for more than a year, particularly for charging 15 people at a protest as gang members last year. Charges have been permanently dismissed and external investigations were conducted into the controversial case.
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"They're under a very tight microscope on how they're going to address these issues," Steele said.
The legal question here, Steele said, is not whether the protesters' speech was protected by the First Amendment, but rather if the protesters committed any of the criminal offenses they would be charged with.
"Things are political, too. If you're under investigation by the Department of Justice, you may kind of look the other way on a situation like this," Steele said.
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According to the Arizona Legislature, disorderly conduct is defined as "intent to disturb the peace or quiet of a neighborhood, family or person." Engaging in any of the following constitutes a misdemeanor:
Engaging in fighting, violent or seriously disruptive behavior.
Making unreasonable noise.
Using abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person.
Making any protracted commotion, utterance or display with the intent to prevent the transaction of the business of a lawful meeting, gathering or procession.
Refusing to obey a lawful order to disperse to maintain public safety.
Recklessly handling, displaying or discharging a deadly weapon or dangerous instrument.
Under state legislation, disruption of an educational institution is considered "intentionally or knowingly entering or remaining on the property of any educational institution for the purpose of interfering with the lawful use of the property or in any manner as to deny or interfere with the lawful use of the property by others." This also includes a refusal to obey a lawful order to leave the institution.
Have protesters on Arizona college campuses faced criminal charges before?
Plenty of ASU students have been arrested and charged for off-campus protests in the past, as recently as October 2020. Some have even been arrested or expelled for activities on campus, too, but in most cases, charges were dropped or otherwise not pursued.
In 1969, 10 ASU students participating in a hunger strike against the mandatory ROTC program at ASU that drafted some students into the Vietnam War at the time were arrested and jailed but were later released on $330 bail.
In 2019, three University of Arizona students were charged with misdemeanors after they protested the Border Patrol's presence at a career fair on campus.
There have been no publicly known cases in recent memory of a protester being convicted of a crime for action on an Arizona State University campus.
Reach breaking news reporter Athena Ankrah at athena.ankrah@arizonarepublic.com or on Twitter @AthenaAnkrah.
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This article originally appeared on Arizona Republic: Maricopa County prosecutors seek more info in Sinema ASU protest case
