Felony Charges Against Protesters Rare, Unlikely To Stick, Experts Say
The felony intimidation charges brought against protesters outside Kentucky Attorney General Daniel Cameron's home on Tuesday are rarely used this way and unlikely to stick, according to court records and local lawyers.
Sam Marcosson, a professor of law at the University of Louisville, called the felony charges of intimidating a participant in a legal process "outrageous." Marcosson, an expert in criminal and Constitutional law, said he didn't think they were justified based on Kentucky law or the U.S. Constitution.
"If the idea that the (Louisville Metro Police Department) is seeking to put out there is that protest is in and of itself a form of intimidation, then the First Amendment means nothing... We've thrown it out," he said.
In total, 87 protesters were arrested after a peaceful sit-in on Cameron's East End front lawn. They were also charged with disorderly conduct, a misdemeanor, and the violation of criminal trespass, according to a statement from LMPD. An estimated 200 protesters participated in the action, some from out of state.
Police spokesperson Jessie Halladay said in an email Wednesday that the decision on charges came from commanders at the scene.
"The felony charge is based on protesters trespassing onto the Attorney General’s property, refusing to leave and chanting that if they didn’t get what they want they would burn it down," she said. "That was deemed an attempt to intimidate, persuade or influence the Attorney General’s decision."
Cameron's office is responsible for deciding whether to bring criminal charges against the police officers who killed Breonna Taylor. The 26-year-old Black woman's death — and the subsequent lack of charges against the officers — precipitated weeks of ongoing protests in Louisville.
Tuesday's demonstration focused on calling on Cameron to deliver justice for Taylor by arresting and prosecuting the officers who shot her. Cameron said as recently as Monday that he would not put a timeline on when his office would complete its investigation.
Marcosson criticized LMPD's interpretation of the protest chant, which invokes "burning down" systems of oppression. He put it in the same category as another common chant: "No justice, no peace." Both, he said, could refer to anger directed at a larger system or the state of things, rather than a particular individual.
"The state has a very high burden to have to show that something really was directed, intended as a threat and that a particular individual was being targeted," he said.
Plus, he said, the statute is not typically used this way.
The statute defining the offense, KRS 524.040, describes it as "use of physical force or a threat directed to a person he believes to be a participant in the legal process." It's a felony, and Kentucky still has a lifetime felony disenfranchisement law. People convicted of felonies in Kentucky cannot vote, serve on a jury or possess a firearm.
The intention is to protect witnesses who might be threatened to stop them from testifying in cases, Marcosson said. To consider Cameron a "participant in a legal matter" in the way intended by the statute would be a stretch, he said.
Attorney David Mour said he believed the protesters were "vastly over-charged," and that the felony charges were being used as a "political weapon." Mour said he may represent some of the defendants as they fight these charges.
"It's an effort to suppress the First Amendment right of assembly and the First Amendment right to free speech, and to try to take constitutional rights away from these people," he said.
Mour questioned the application of the charge, given that protesters didn't appear to use force or verbally threaten Cameron. He said he did not attend the protest, but watched via livestream.
"I think it's extremely improbable that all 87 of those people uttered some threat of harm against the Attorney General, such as to give rise to charges of that," he said.
Elizabeth Kuhn, a spokesperson for Cameron's office, said in an emailed statement that they "respect the decisions made by the arresting agency and appreciate their assistance in upholding the law."
"Ultimately, any charges will be subject to the legal process and further review by prosecutors," Kuhn's statement said.
Ingrid Geiser, director of the criminal division of the County Attorney's Office, said in an email that the Office was not involved in the charging decisions.
"We will review all available facts and evidence and proceed on a case by case basis," she said in an email.
Marcosson and Mour each compared the issuance of these charges to a different protest in May, when a group rallying in support of gun rights and against coronavirus restrictionshanged an effigy of Gov. Andy Beshear in front of his residence in Frankfort.
No one was arrested in connection with the hanging. One person was fired by a private employer.
"How many people got charged? Zero," Mour said. "Because we don't charge white dudes with guns and who are protesting taking away their freedoms because they can't go get their hair cut."
LMPD was not involved in that protest, as it took place in Frankfort. But Marcosson said the differential treatment of the two groups of protesters highlights the problem. Police and others must take care not to interpret speech as threatening simply because of the identity of the person producing it, he said.
"If the same statement is made by a woman or a white person, it might be seen as not threatening at all by a police officer or by the person who is the recipient of the speech, the target of the speech, whereas when it comes from somebody who's a person of color or from a man, it can be interpreted very differently, even the exact same speech," he said.
Frequency Of Use
Records show that the charges for intimidating a participant in a legal process levied Tuesday night represent more than a third of all such charges in Louisville in the last year and a half.
The intimidation charge was used 216 times since the start of 2019, according to crime data released online by LMPD, which is current through July 10. This dataset represents "calls for police service where a police incident report was taken."
The charge has been used 701 times since 2015, according to District court records. Less than a quarter of those produced indictments and advanced to Circuit court.
It was most often used in the 40215 zip code in the south Louisville area that includes Churchill Downs, with 30 such charges there since early 2019, according to the police's publicly-available crime data. There were 20 charges in the western area covered by the 40211 zip code, and 16 times further south in the Iroquois Park area.
The citation data released online by LMPD show about 54% of those cited were Black, in a city whose population is about 23% Black. The use of the citation overall had decreased from a high of 228 in 2012 to 23 so far this year — until Tuesday's dozens of arrests including that charge.
In Kentucky, Class D felony charges can carry sentences of one to five years in prison, as well as fines ranging from $1,000 to $10,000.
Jacob Ryan contributed reporting.