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Bill to criminalize trespassing at infrastructure facilities takes heat during public hearing

CHARLESTON, W.Va. — A bill currently sitting in the House Judiciary Committee that would create a criminal offense of trespass upon property defined as “critical infrastructure facility” received plenty of feedback Monday morning.

A public hearing was held in the House chamber on House Bill 4615, the West Virginia Critical Infrastructure Protection Act.

The majority that took to the floor spoke against the bill, citing free speech and First Amendment rights.

“The First Amendment to the United States Constitution guarantees freedom of expression, the rights of individuals to speak freely,” Leachtown citizen Rodney Wilson said.

“It also guarantees the rights to citizens to assemble and peacefully and to petition their government.”

The text of the bill states “the purpose of this bill is to codify criminal penalties for persons convicted of willfully trespassing or entering property containing a critical infrastructure facility without permission by the owner of the property, and holds a person liable for any damages to personal or real property while trespassing.”

The bill, which lead sponsor is John Kelly (R-Wood), also prescribes criminal penalties for organizations conspiring with persons who willfully trespass and/or damage critical infrastructure sites and holds conspiring organizations responsible for any damages to personal or real property while trespassing.

Some citizens who spoke at the public meeting believe this bill was put together to directly silence those who have been protesting at industrial sites in West Virginia such as Rockwool and the Mountain Valley Pipeline.

“This bill is a clone to many we have seen across the country since Standing Rock,” Joseph Cohen, the executive director of the American Civil Liberties Union (ACLU) of WV said.

Joseph Cohen

“It’s aimed at silencing indigenous people, water protectors, and environmentalists by banning the non-violent tactics that have been most successful in getting their message heard.”

West Virginia citizen Tom O’Neal, who did not identify himself any further on the floor, was one of the few who spoke during the public hearing in favor of the bill. He said addressed criticisms of the bill on free speech.

“It’s important to state clearly, this bill does not inhibit anyone’s first amendment rights,” he said.

“The courts have long held, just as the right to swing my fist ends the tips of someone else’s nose, the legitimate and protected exercise of free speech does not and should not extend to criminal activity including trespass, destruction of property and conspiracy.”

O’Neal said it was unfortunate but expected to have mischaracterization of the bill. Further saying the bill protects certain types of property from illegal interference.

“Not just any kind of property but specified property whose importance and sensitivity justify a heightened level of legal protection,” he said. “These properties are protected largely because of their inclusion in the United State Department of Homeland Securities list of critical infrastructure properties.”

A critical infrastructure facility has 16 definitions listed in the bill including petroleum refineries, natural gas compressor stations, natural gas storage facilities, chemical facilities, water treatment facilities, and a gas processing plant.

The bill states that the facility “must be completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign(s) that are posted on the property that are reasonably likely to come to the attention of intruders and indicate that entry is forbidden without site authorization.”

Punishment for such crimes is listed in the bill as trespassing a facility as a misdemeanor offense worth a fine of at least $500 and a jail sentence of between 30 days and one year. If there is intent to create any damage to the property during trespassing would be a felony offense, fined at least $1,000 and between 1 to 3 years in jail.

The bill lists any damage done at a critical infrastructure facility is a felony with a fine of at least $2,000 and between 1 to 5 years in jail.

Cohen spoke on the conspiracy charge listed in the bill. It states that any person who conspires any person to commit trespass is guilty of a misdemeanor and will be fined at least $5,000.

“Maybe most troubling is the H-B 4615 seeks to expand the definition of criminal conspiracy,” Cohen said.

“This is the literal embodiment of guilt by association. H-B 4615 is designed to scare people out of defending their lands and their homes.”

Loree Stark

Loree Stark, legal director at the ACLU of West Virginia said the bill raises significant constitutional concerns.

She said the language would make it difficult to impossible in some situations for protestors to determine when and where the law is triggered, and whether or not they will be subjected to the law’s harsh penalties.

The bill moved to House Judiciary on January 30.

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