Heading down to Waterfront Park on the afternoon of July 24, 2020, Michael Clemons thought he was heading to a normal protest: One where people would just march through the streets of downtown Louisville calling for justice for Breonna Taylor, just like they had been doing for weeks.
When the march from the river arrived at East Market Street, in the gentrified and trendy NuLu district, some protesters started unloading plastic barrels for barricades out of trucks, and it dawned on him that the protest might turn out to be a little different than what he had anticipated.
“Once I realized that, I knew I was on board for whatever was going to happen. And what ended up happening was a block party,” he said. “It was very similar to the festivals that shut down the streets on a regular basis here in Louisville.”
With NuLu’s main drag blocked off to vehicles, protesters put together a long communal table in the street and set it for dinner, decorating it with tablecloths and flowers. They set out art. They even brought a trampoline and a piano.
“It was a joyous atmosphere,” Clemons said.
If left alone, Clemons believes people would have had some food, listened to some music and left — just like they would have at a city-sanctioned block party. But soon, police arrived and told everybody to leave. In an example of textbook civil disobedience, many did not.
Clemons was one of 76 people arrested at the NuLu protest that day and would spend the night in jail charged with a trio of misdemeanors: Obstructing a highway, disorderly conduct and unlawful assembly. But a year and a half later, after refusing to plead guilty to have the charges dismissed, his case is still open. While the majority of the nearly 900 cases from 2020’s protest arrests have been dismissed or otherwise resolved, about 130 remain open and unresolved according to the Jefferson County Attorney’s office. At least five protest-related cases are currently scheduled to go to trial in the coming months. The County Attorney’s office maintains that the prosecution of cases is about ministering justice. But protestors and their advocates say the arrests and prosecutions — and even the conditions of plea deals offered to protesters — are about making Louisvillians think twice about protesting in the future.
“It is to make an example, it is a form of intimidation,” said the Rev. Tim Findley Jr, a Black protest leader and mayoral candidate who continues to face charges from two arrests during the Breonna Taylor protests. “It is to send a message — I think, really, for the future, that they are going to take this course of action when people exercise their right to peacefully protest, to protest non-violently.”
Fighting Charges
Protesters like Findley and Clemons say they have continued to refuse deals from prosecutors that require a guilty plea, forcing prosecutors to dismiss their cases or bring them to trial.“We were not being violent, we were not being destructive at all. It was a peaceful street festival that, while it may not have had city permits, did not harm anybody,” said Clemons, 34, who owns a company that arranges running races and has regularly worked with LMPD in the past to close off streets to accommodate those events. “I don’t believe we did anything that we should be pleading guilty for.”
According to lawyers and court documents, a common offer to protesters with open cases has been a guilty plea, 20 hours of volunteer service, an agreement that police had probable cause to make an arrest and a condition that they not commit any new offenses in the next three months.
Findley faces charges for a June 1, 2020 arrest in St. Matthews and an Aug. 25, 2020 arrest when protesters blocked the Central Avenue overpass next to Cardinal Stadium. In the St. Matthews incident, which was captured on camera, police alleged that Findley resisted arrest by stiffening his arms and that an officer “sustained an injury” trying to arrest Findley. Findley filed suit against the city of St. Matthews and several officers over the arrest.
“The fact that these charges have not been dismissed, to me speaks to — just on a very small scale — it speaks to the issue with the criminal justice system and what we choose to pursue and prosecute and what we choose to drop,” he said. “And I think there are some major disparities there.”
According to Ingrid Geiser, first assistant in the Jefferson County Attorney’s office, prosecutors have carefully reviewed cases to determine which ones to pursue.
“We totally believe in everyone’s right to protest and the right to speak freely and to exercise their first amendment rights. However, when folks cross the line from being a lawful protester to someone who is committing a criminal offense, we have to look at each and every one of those cases in a consistent manner and review each case and the facts of each case and make sure that we are doing the right thing on each of those cases,” she said.
Geiser said the July 24, 2020 NuLu protest, where Clemons was arrested, “crossed the line because they brought things to barricade the streets with, they brought drums filled with urine and bleach and others substances. They actually set up physical barricades in the road. And that infringes on lawful citizens’ rights to come and go down those streets. That infringes upon those business owners’ rights to have their business open and safe to the public.”
In cases where a curfew violation or failure to disperse were the only charges, she said prosecutors moved to dismiss. However, she said the County Attorney’s office sees obstructing a highway — a charge in a number of remaining cases — as a more serious offense.
“When you block a road, the potential for placing other law-abiding citizens in danger is present. It’s just not a way that we can allow protests to occur,” she said.
The shutdown of the courts due to COVID and the sheer number of protest cases has resulted in a backlog of cases and a long delay between arrest and resolution for some. While there are around 130 cases that remain unresolved, that does not mean that all are headed to trial: They include cases where negotiations are ongoing as well as cases where deals have already been made and the defendant only has to show the court proof that they completed volunteer work.
Attorney Ted Shouse, who represents many clients facing protest charges, said he anticipates “several” of the protest cases to ultimately go to trial.
To activists, bringing protest cases to trial is a way to effect change.
“If 25% of these people fought these cases…the system could not hold up because it’s not designed for everybody to fight it,” said Shameka Parrish-Wright, partnerships and advocacy manager for the Bail Project, who is also running for mayor.
But not everybody is in a position to take a case to trial; For many, outstanding protest charges can have serious consequences.
“Many of them won’t get to go on and be Maxine Waters or John Lewis, who had over 40 arrests for doing civil unrest,” she said. “Many of them won’t be able to do that. They’ll be marked and it will be hard for them to get jobs and housing and it will stay with them.”
Pending charges also means you have to keep on top of your court dates or risk arrest again; Currently, there are an estimated 24 people with active bench warrants stemming from protest-related charges, according to the County Attorney’s office. For those people, getting pulled over for a traffic violation — or any other interaction with a police officer — would mean arrest. (While bench warrants could land people with pending charges in jail, the County Attorney’s office maintains that they are not seeking jail time in non-violent misdemeanor protest-related cases they are prosecuting.)
Clemons considers himself lucky to be in a position where he can fight the charges against him.
“I don’t have anything that hinders me having this misdemeanor charge on my record,” said Clemons. “I’m very fortunate and privileged to be in that situation.”
According to Clemons, prosecutors have now offered to dismiss his case without a guilty plea so long as he provides proof he has completed community service. He said he is accepting that deal.
Another protester fighting charges is activist Carla Wallace, co-founder of Showing Up for Racial Justice, who was arrested during a march on Bardstown Road on Sept. 23, 2020, the day the grand jury announcement that no police officers would be charged for the killing of Breonna Taylor.
“For folks who have jobs where their name in the paper could mean that they lose it, that’s a whole other level of how arresting people for dissent has an impact,” she said. “I’m not in that situation, but there are others who are. And that is very vulnerable, because if you lose your job then you’re behind on your rent or your mortgage.”
Attorney Kevin Glogower, who has represented a number of Louisville protesters, said pleading guilty to charges can be dangerous as well.
“If you’re any normal human being, pleading guilty comes with a whole set of consequences that could be very detrimental to you,” he said. “It could cause you problems with your work, problems volunteering with your kids’ school or some other nonprofit that you’re interested in helping. It can affect you in applying for school or loans or different types of subsidies. So a lot of folks that I represented were very apprehensive about entering the guilty pleas.”
“Quite frankly, I don’t think anybody that I represented during those protests violated the law. I think they were lawfully out there,” he added.
Parrish-Wright, the mayoral candidate with the Bail Project, said its understandable why many take plea deals.
“It really takes a lot of resources to fight a case. I see clients and I see why people just cop out and take plea deals: Because they want to know when it’s going to be over,” she said.
The protest arrests and the later legal battles wear down those calling for rights and justice, said Parrish-Wright, pushing people away from the work to be done.
“I’m really worried that this dampens our social justice movement — it hurts the people who are trying to stand up for what’s right,” she said.
Sending A Message To Protesters
To protesters and their advocates, the arrests as well as the conditions set out in plea deals are part of an attempt to punish dissent and send a message that there will be consequences for future protest actions.“I think those statutes, I think they’re designed to suppress free speech and I think they were used by LMPD to suppress free speech,” said David Mour, a Louisville attorney who represented dozens of protesters. “I told [County Attorney] Mike O’Connell very early on that unless a police officer was injured by an intentional act of a protester or property was deliberately destroyed or damaged, all of these cases should be dismissed and dumped.”
Additionally, some dismissals hinged on the defendant committing no new offenses for a certain number of months, a condition that meant protesters who wanted their prior charges to go away would be hesitant about taking to the streets again.
“That was to send a message to protesters: Stay off the streets, don’t be doing this shit, because if you get another one, we’ll charge you with that one and then we’ll go back and grab the old one that was deferred,” said Mour.
If the intention of the arrests and the charges was to sideline protesters, it worked in some cases: After Clemons was arrested, he stayed away from the protests.
“I didn’t go out after that just for fear of multiple arrests in a small period of time,” he said. “This was the one and only time I’ve ever been arrested, so I was like, I don’t need to risk that multiple times.”
A report by the Bail Project analyzing the arrests of 173 protesters arrested between June 1, 2020 and Sept. 30, 2020 who requested pro bono legal aid found that 80% had no involvement with the criminal justice system since at least 2017.
Generic Narratives
The first protest case to go to trial opened on Nov. 1, with 36-year-old Shajuandi Barrow facing charges of obstructing a highway and disorderly conduct during the July 24, 2020 NuLu protest. The next morning the trial was over, with the County Attorney’s office moving to dismiss the case after failing to turn over evidence to the defense.In his opening remarks, prosecuting attorney Matthew Kinney maintained that Barrow was part of a group that took away the public’s freedom to travel Louisville’s roads that day. As a result of the actions of Barrow and others, he said, parents couldn’t pick up their kids from school, ambulances couldn’t get to UofL Hospital via the most direct route and citizens couldn’t enjoy NuLu’s shops and restaurants.
But Barrow’s attorney, Shouse, argued that police never saw Barrow commit any of the infractions that were described in her arrest citation — that her citation was filled out before she was arrested and instead relied on a narrative about actions about others in the group of protesters, not Barrow.
In body camera footage shown in court by Shouse, LMPD officers could be seen filling out arrest citations, with one officer saying he was putting together a “generic narrative” and that other officers should copy it.
“They just arrested everybody and charged them with the same thing,” Shouse told the jury.
LEO Weekly obtained and reviewed 71 misdemeanor arrest citations for the July 24, 2020 protest in NuLu. All but one had narratives that shared very similar, if not identical, wording to multiple other citations issued that day, diverging mostly in level of detail.
Here’s a pretty standard citation from that day:
“Above subject was arrested for blocking 700 block of E Market for refusing to move after an order disperse was issued by LMPD. Several subjects were present at an assembly in the middle of the street causing alarm and annoyance to several business owners in the district who called 911 to report unlawful crowd. Multiple orders to disperse were issued and subject refused to leave. Several subjects in the crowd made a barricade out of bike fencing, 55 gallon barrels full of an unknown liquid and large signs made out of several items, including mattresses. Barricade was tied together with zip ties and cables with locks that had to be cut off with various tools.”
At times the citations read like a game of telephone: While numerous citations described barricades held together by zip ties, cables and locks that had to be cut off with various tools, one citation instead reported that “various tools” were found at the barricades.
While 19 other citations mentioned the 55-gallon drums as having an “unknown” liquid or substance, 20 of the citations made no remarks on the contents of the barrels except to note that they were part of the barricade.
Two citations signed by the same officer reported that the barrels were “filled with urine and bleach.” Three other citations signed by that same officer made no mention of the urine and bleach, though one did mention the barrels containing an “unknown liquid.”
In a press briefing the following day, then-Deputy Chief LaVita Chavous would claim the barrels had contained water, urine and bleach. Clemons, who said he helped unload and set up the barrels, said, “none of us would have been up there with that sloshing onto us… it was straight water.” Geiser of the County Attorney’s office said her assertion that the drums had urine and bleach in them came from what police had reported.
Citations with the same exact hand writing and same exact wording were signed by a variety of different officers.
Geiser said police turned to “form-type” narratives during the protests as they went through a learning curve grappling with a large number of arrests.
“Obviously, we would prefer a narrative be narrowly tailored to a particular individual’s conduct. That’s absolutely the preferred method,” she said.
Applying the most extreme actions that occurred in an area to the entire group present was not limited to the NuLu protest.
In Wallace’s Sept. 23, 2020 arrest citation charging her with obstructing a highway, disorderly conduct and unlawful assembly, the arresting officer mentioned that “subjects were carrying homemade shields and weapons refusing to leave the area.” Wallace told LEO she was not carrying any weapon or shield.
“Having been arrested a number of times, I know that police often add additional charges hoping that one will stick,” she said.
On Sept. 24, 2020, one night after the grand jury’s decision, Parrish-Wright was traveling in a group with state Rep. Attica Scott (D-Louisville) as they tried to get to the First Unitarian Church on Fourth Street as Louisville came under a 9 p.m. curfew. As they tried to approach the church, the group was quickly surrounded by LMPD officers and arrested without a chance to disperse.
Scott’s livestream of the incident showed the group walking towards the church past the Louisville Free Public Library and worrying that a heavy deployment of police officers was blocking routes to the church. But Scott’s arrest citation wasn’t about breaking curfew; instead, it said, “Above subj was a part of a large group that was given mult order verbally to disperse and failed to do so Subjects caused extensive damage at multiple locations including setting fire to the Louisville Public Library.”
Scott and Parrish-Wright were charged with riot in the 1st degree, a Class D felony which can carry up to five years in prison.
Their felony charge — along with their misdemeanor failure to disperse and unlawful assembly charges — was later dropped.
“This was to quiet our protest voice. This was to bury the protests,” said Parrish-Wright. “You bury them by using the judicial system and process to further prosecute — and I say bully — the people who chose to stand out and stand up against injustice.”
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