With warrants issued for protesters at Boise homes, what actions can lead to charges?
At least one person has been arrested in connection with a series of protests at private residences regarding a proposed coronavirus health order in the Treasure Valley, and others could follow.
In charging at least three people in a protest that took place outside one elected official’s home in Boise, police have alleged that conduct has gone beyond the scope of speech and assembly protected by the First Amendment.
But when exactly is that line crossed, and when can police pursue charges?
According to the Boise Police Department, those three arrest warrants were issued on charges of misdemeanor disturbing the peace. Idaho’s criminal code says that such a charge can be levied against a person who “maliciously and willfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise ...”
The law also indicates that someone could be charged with the misdemeanor by “threatening, traducing, quarreling, challenging to fight or fighting, or fires any gun or pistol, or uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner ...”
Ada County Commissioner and Central District Health board member Diana Lachiondo told board members that anti-mask, anti-health order protesters were making a ruckus outside her home during a meeting on Tuesday, Dec. 8. In a Facebook post, Lachiondo wrote that protesters blared air horns, among other things.
Dr. Ted Epperly, an Ada County physician and CDH board member, said about 15 people were outside his house “beating garbage cans and flashing strobe lights through my windows.” Epperly said two people came up and knocked on his door during the meeting, which lasted only minutes.
The noise was “one thing,” he said. “And then they came up and started pounding on my door, and that’s another. My sense is that there’s a line to be crossed. It’s not been crossed yet.”
On top of the dangers caused by a pandemic, he said he’s concerned about the backlash against public health and medical officials getting worse.
“It doesn’t take much in this environment right now to kind of throw a match on this thing,” he said.
Boise Police Chief Ryan Lee told reporters on Dec. 9 that the three arrest warrants were connected to the protest outside of Lachiondo’s house, not the large demonstration that took place outside CDH headquarters, where several hundred people, some of them armed, had gathered.
There was one person arrested who had gotten inside the CDH building.
Lee said one challenge that police face is that although some actions might be considered inappropriate by police or bystanders, it still might not cross the line into criminal conduct.
“We are interested in holding people accountable for criminal conduct, but we have to operate within that lane of what is criminal conduct versus what may be shocking to public sense,” Lee told reporters. “Those don’t always, unfortunately, line up.”
He said CDH allowed people to be in the building’s parking lot, even giving protesters a podium and sound equipment to use.
“Some of the statutes we may have been able to apply and arrest for weren’t available for us to use as tools to use,” Lee said. “We were very narrowly tailored for what we could arrest people for.”
Misdemeanor arrests require warrant
A ruling by the Idaho Supreme Court has created a bar that police must clear before filing these sorts of charges.
In June 2019, the state Supreme Court ruled on the case State of Idaho v. Clarke, which overturned a conviction in North Idaho. Peter O’Donald Clarke was arrested without a warrant after he was accused of groping a woman at a Hayden beach, and charged with misdemeanor battery. During a search police reportedly found methamphetamine and marijuana in Clarke’s backpack. After Clarke was convicted of felony and misdemeanor drug possession, he appealed the conviction.
Idaho’s high court ultimately vacated Clarke’s conviction, finding that warrantless arrests were unlawful unless an officer witnesses the crime. The decision has placed an additional obstacle for law enforcement, especially in cases of domestic violence. Police cannot arrest someone on a misdemeanor charge they do not witness.
On Wednesday, Lee cited the ruling as a bar to clear. For arrest warrants to be issued, police must have complainants and evidence. In the case of those outside of Lachiondo’s home, they did have complainants, Lee said, and other information.
In a statement published Wednesday, the Boise Police Department said that officers found evidence — witnesses, chalk and videos — that people were outside Lachiondo’s home participating in conduct that could bring charges.
Other possible charges
Trespassing charges can occur if a property owner asks a person to leave and they refuse, according to state law. The property owner must also sign a complaint for the charge to potentially be filed.
This was the case last week when 53-year-old Boise resident Yvonne St Cyr was charged with trespassing, the same night that protests took place at homes. She was placed under citizen’s arrest by a CDH representative for allegedly trespassing in the building, and then was taken into custody by police.
While stepping onto private property could constitute trespassing, areas such as sidewalks are open to the public. It is not illegal to simply stand on a sidewalk to protest, though other conduct could cross the line. This is one reason why those outside Lachiondo’s house were charged with disturbing the peace rather than trespassing, police said.
In Idaho, there also are two types of harassment charges at the disposal of law enforcement: telephone harassment and malicious harassment.
For someone to be charged with telephone harassment, they must engage in “repeated anonymous or identified telephone calls whether or not conversation ensues, disturbs the peace or attempts to disturb the peace, quiet, or right of privacy of any person at the place where the telephone call or calls are received,” according to the state statute.
A malicious harassment charge could be levied against someone who expresses intent to cause injury to a person or property on the basis of “that person’s race, color, religion, ancestry, or national origin,” according to the statute. The law also includes language that covers cross burnings and the placing of “any word or symbol commonly associated with racial, religious or ethnic terrorism on the property of another person without his or her permission.”
For a stalking charge to occur, police have to show that harassment is part of a pattern. Idaho has first- and second-degree stalking, according to the criminal code.
A second-degree stalking charge can occur if a person engages in conduct that seriously alarms, harasses or annoys the victim and would cause emotional distress. One element of this charge could include repeated contact by one party to the other. The charge could also be made if a suspect causes a person to fear physical injury or death. This type of contact could include following or having surveillance of the victim; contacting the victim at home or work; entering a victim’s property without consent; or contacting the victim by phone, electronic means or by mail, among other means of harassment.
For a first-degree stalking charge, the alleged perpetrator must engage in the same conduct as a second-degree stalking case. However, the case would be elevated to first-degree if there is an injunction between the two parties, such as a restraining order, no-contact order or another type of injunction.
The charge also can be elevated if the victim is younger than 16 or if the perpetrator is possessing a deadly weapon. If the perpetrator has committed a crime against the victim prior to the harassment, the charge could rise to the level of first-degree stalking.
There is no indication that any activities by protesters so far have risen to the level of these charges.
Protests and the law
Idaho isn’t the only Western state where protests have taken place at the homes of elected officials.
Last month, a protest held by a far-right activist group took place outside the home of a Washington state Liquor and Cannabis board officer, according to the Tri-City Herald. The anti-mask group was displeased after the board served written warnings to a bar and three restaurants in southern Washington. The governor, Jay Inslee, ordered bars and restaurants to end indoor service from Nov. 18 until at least Dec. 14 in response to an increase of COVID-19 cases in the state.
In Utah, a series of protests were held outside the home of the state epidemiologist. Protests also took place outside the governor’s mansion and at the personal homes of Utah Gov. Gary Herbert in Orem and Lt. Gov. and Gov.-elect Spencer Cox. The protests were in response to Herbert issuing a statewide mask mandate.
In response to the demonstrations, the Orem City Council unanimously approved an ordinance making it illegal — a class B misdemeanor — to protest at a specific person’s home, unless the demonstration is 100 feet or more away from the property line, according to the Salt Lake Tribune.
However, a protest at Herbert’s personal home held days after the ordinance was passed yielded no citations.
Seth Ogilvie, communications director for the city of Boise, said members of the City Council have had informal conversations about an ordinance similar to Orem’s.
He noted, however, that as of this week, the topic has not been seriously discussed and nothing has been proposed.
