Civil disobedience constitutes a bargain between protesters and government. Since civil disobedience involves breaking the law, protesters who engage in it accept the reality that the government may respond to their civil disobedience with arrests and prosecutions. As Henry David Thoreau wrote in his famous essay “Civil Disobedience,” “Under a government which imprisons any unjustly, the true place for a just man is also a prison.” It is thus in the grand tradition of the civil rights movement that protesters subject themselves to arrest, and, in the process, call attention to the injustice and create the impetus for change.
While arrest and prosecution is thus woven into the very fabric of civil disobedience, there are still limits to how the government may legitimately respond to law-breaking protesters. Recent events in Louisville demonstrate how easily these limits can be exceeded.
On July 14, protesters seeking to spur action by Attorney General Daniel Cameron on his investigation of the Breonna Taylor case staged a demonstration on the front lawn of Cameron’s home. After police ordered them to disperse, and they refused, they were arrested. As you might imagine, they were charged with trespass, which is either a misdemeanor or a violation under Kentucky law, depending on the degree.
So far, so good. Trespassing charges make all the sense in the world. There can’t really be much question that they were trespassing — they were ordered to disperse, and they refused to comply. But the police didn’t stop there. The 87 protesters were also charged with “intimidating a participant in the legal process,” which under KRS 524.040 is a felony punishable by one to five years in prison. These charges were a blatant and obscene violation of the protesters’ constitutional rights and no legitimate or acceptable part of governance in a time of civil disobedience.
Section 524.040 requires the prosecution to show that the defendant used “physical force or a threat directed to a person he believes to be a participant in the legal process.” There is no indication that any of the protesters used physical force or threatened the attorney general. The only real “threat” was a demand for action. Think about two parents whose kids’ rooms look like a tornado hit them. The first parent says, “Clean up that pigsty of a room!” That is a demand for action. The second parent says, “Clean up that pigsty of a room, or you will be grounded until you are ready to leave for college.” That is a threat. The protesters were the first parent, demanding that Daniel Cameron clean up his mess. They made no threat, and they used no physical force.
Or, to put it another way, they engaged in speech — speech that petitioned an elected government official for action. In other words, activity at the heart of the First Amendment rights to free speech and to petition the government for the redress of grievances.
And it won’t do to respond that they could not have been exercising their First Amendment rights because they were trespassing. The trespass is already addressed through — you guessed it — the trespass statute. The intimidation element requires a lot more than trespass, and the protesters either didn’t do that something more, or it is unconstitutional to apply the law to the protected (i.e., nonthreatening) expression in which they did engage.
If there was any question that it would be blatantly unconstitutional to apply the “intimidation” provision to the protesters’ activities, look no further than the Supreme Court’s 2003 decision in Virginia v. Black. There, the Court held that a state may criminalize cross burning carried out with the intent to intimidate, but that such speech fell outside the First Amendment only when it constitutes a “true threat” — i.e., “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” It should go without saying that the trespassing protesters on AG Cameron’s lawn made nothing like such a “true threat,” and thus that their speech was protected by the First Amendment.
Nor, despite the statement issued by the Louisville Metro Police Department, did the protesters’ chant that “if we don’t get it [it referring to justice for Breonna Taylor], burn it down” constitute a true threat. The chant had not even begun at Cameron’s house. Instead, it occurred at Ballard High School, before the protesters marched to his house. The only reasonable interpretation is that they were talking about “burning down” or rethinking the justice system. As the Supreme Court said in Black, for the state to punish threats, they must be clear and targeted at someone in particular. It can’t be ambiguous; punishing an ambiguous statement as a threat violates the First Amendment.
All this, I believe, is why on July 17, the Jefferson County Attorney decided to drop the felony charges, saying in a statement that he was doing so “in the interest of justice and the promotion of the free exchange of ideas.” While this was good news for the protesters and the First Amendment alike, it is not an “all’s well that ends well” situation, either. Sadly, the LMPD’s decision to file these charges in the first place did considerable damage despite the County Attorney’s decision. These 87 peaceful protesters will have felony charges on their records. Expungement of even dismissed charges can be expensive and time-consuming. Even though the County Attorney took the commendable step of saying his office would assist the protesters in expunging the felony charges from their records in this instance, the specter of the typical obstacles that make expungement difficult would linger over protesters going forward. And of course, future protesters will know that the LMPD is willing to use and abuse every tool at its disposal to chill their expression.
Here is the irony of the situation. If we ask whose conduct better fits the statutory definition of “intimidation” under 524.040 — the protesters’ or the LMPD’s — the clear answer is the police. Nothing the protesters did constituted a “threat directed to a person he believes to be a participant in the legal process.” Sadly, the same cannot be said of the LMPD officers. It is no great stretch to see their actions in bringing thoroughly unjustified felony charges as a threat to the protesters to stay in line, and since they were already being arrested on the trespassing charges, the protesters were “participants in the legal process.” If I had to choose only one of the two groups as having violated 524.040, I would have little difficulty choosing the LMPD. And it ought to be a deeply troubling state of affairs when it can plausibly be argued that the police are using their authority to intimidate peaceful protesters.
Put simply, KRS 524.040 is blatantly unconstitutional if applied as broadly as the LMPD attempted to use it in these cases. While prosecutorial overcharging has a long tradition in the criminal justice system (plea bargaining leverage doesn’t grow on trees, you know), charging protesters under a statute that doesn’t apply to their conduct, and especially when they were engaged in constitutionally protected expression, is not just routine overcharging. Sadly, it is routine in another sense: These arrests are simply the latest example of a routine pattern of the LMPD trampling civil rights. We are long past the point where enough is enough. •
Sam Marcosson is a professor at the UofL Brandeis School of Law. The views expressed herein are his alone and do not speak for UofL or the School of Law.