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Civil rights attorneys are challenging the Louisville Metro Police Department’s decision to more strictly enforce laws against marching in the streets.  

Throughout American history, protesters have commandeered roadways in acts of civil disobedience. To cite one famous example, civil rights protesters crossed the Edmund Pettus Bridge not once, but three times in the fight to secure voting rights for Black Americans. But in Louisville, after months of protests and hundreds of arrests, LMPD said last week that officers will cite or arrest people for marching in the streets.

The ACLU of Kentucky and local attorney David Mour have both sued LMPD in recent weeks over actions they say could have a chilling effect on these constitutionally protected activities. ACLU Legal Director Corey Shapiro says LMPD’s latest decision to increase enforcement reflects a broader pattern of response that excessively targets protesters.

“They are choosing time and time again to escalate the conflict, showing up in riot gear, using tear gas, using excessive charges, making new rules of engagement in an effort and in a pattern that seems to be designed to mute the criticism against their police force,” Shapiro said.

LMPD declined to answer questions for this story and instead directed WFPL to statements made on social media. On Facebook, LMPD said it is committed to the public’s right to peacefully protest, and is more strictly enforcing laws over public safety concerns stemming from demonstrations.

“When that expression starts to impede the rights of others and put the public at risk, including protestors, we must take action,” LMPD said in the Facebook post.

Protest Is At The ‘Fabric Of This Country’

Law enforcement has long attempted to limit the ways people can protest in the U.S., but there’s an even longer history of public dissent, said civil rights attorney Alexis Hoag, an associate research scholar and lecturer at Columbia Law School. 

“It’s part of the very fabric of this country as it broke away from the British monarchy in the late 1700’s,” Hoag said. 

Back in 1963, civil rights organizer Rev. Fred Shuttlesworth held a march in Birmingham to protest institutionalized racism. He was arrested and convicted of holding the event without a permit, which the city had denied him. The case made it all the way to the U.S. Supreme Court and in 1969, justices unanimously decided the city of Birmingham enforced its policy in a racially discriminatory manner.

Writing for the court, Justice Potter Stewart said states may restrict the time, place and manner of speech to manage the logistics of conflicting uses of public streets, like driving and marching, but he made clear that states need to do that in an unbiased way.

Hoag cited Shuttlesworth v. Birmingham as an example of the kind of case attorneys could bring against LMPD. First Amendment case law is pretty clear on this, she said. Any restrictions would need to be content neutral, narrowly tailored and leave alternative channels for demonstration.

Hoag has her doubts that a blanket ban on marching in the streets would meet that standard, she said.

“Because the First Amendment right to free speech and assembly is so central and critical to the exercise of constitutional rights, that sort of consideration can tip in favor of the right to assemble,” she said.

Louisville Attorney Files Suit

Louisville Attorney David Mour represents a group of protesters known as the FIRM Initiative. They’ve led many of the near-nightly marches downtown since May 28th. Last week, on behalf of FIRM Mour sued LMPD over its new policy, which included this language in a social media post:

— All pedestrians must stay out of the streets — staying on sidewalks and following all laws for pedestrian traffic.

— Cars and pedestrians will not be allowed to block intersections for any length of time.

Participants who refuse to comply with any law or lawful order will be eligible for citation and/or arrest. 

The lawsuit asks a judge to declare LMPD’s decision as unenforceable, seeks an injunction barring arrests or citations against protesters for marching in the streets, and requests a judge hold the police accountable for official misconduct.

Mour argues state law implicitly allows protest in the streets. The right to assemble is enshrined in the Kentucky Constitution and in state law, which he interprets as allowing marches on city streets so long as they don’t block the entire roadway — which protesters have also done on occasion.

LMPD decided on stricter enforcement following what police described as a series of protester-related public safety concerns. In a Facebook post, LMPD said protesters have harassed non-protesters, fired paint balls at passing vehicles, set fires and obstructed city streets.

“LMPD continues to balance the First Amendment right to protest with the public safety needs of the entire community. For nearly 75 days, Louisville residents have taken to the streets to express their desire for accountability and change. One of the primary ways of doing that has been to hold nightly caravans – both cars and foot marches – throughout the city. We have seen increasingly unsafe behavior, including an escalation in aggressive behavior over the past week or so,” LMPD wrote in a Facebook post.

Mour said he understands concerns over public safety. He said FIRM does not advocate violence or property destruction. And to the extent there have been public safety concerns at protests, Mour said police should address individual incidents without a blanket ban on marching. 

“I think you deal with the people that cause the problems on a case-by-case basis, but you don’t shut everything down just because of inappropriate conduct by a few. You address that,” Mour said.

A Pattern Of Conduct

Mour and Shapiro with the ACLU of Kentucky say LMPD’s actions over the course of the protests demonstrate a pattern of misconduct designed to suppress protester speech. They highlighted several examples they say are indicative of Louisville law enforcement’s response:

LMPD have fired less than lethal weapons including tear gas and pepper balls at peaceful protesters and media. Officers destroyed protesters’ supplies, trashed protester camping equipment and dropped it off a waste disposal facility, cracked down on protesters for carrying umbrellas and leaf blowers and, in the case of demonstrators performing at sit-in at the Kentucky Attorney General’s House, levied excessive felony charges against protesters (those were later dropped).

The ACLU of Kentucky, the NAACP and others have filed a federal class action lawsuit against LMPD over what plaintiffs say is an “excessive use of force” against protesters. In that case, the plaintiffs are asking the court to stop LMPD from further use of crowd-control weapons on peaceful protesters, and to require the city to create policies that restrict use of force.

Shapiro said LMPD’s actions make people afraid to show up at protests. In part, because of the fear of arrest or the use of force, but also because the language police use to describe the protests make them appear more dangerous than they actually are, he said.

“When the police start threatening to crackdown, threatening to increase the number of arrests, what does that mean? Well what that means is next Saturday or any given day when a family may want to go out to the protests, [they] may feel uncomfortable because it’s being portrayed as this dangerous situation.”

It will likely take months if not years for these lawsuits to make their way through the courts. In the meantime, Shapiro said LMPD should reconsider decisions over when to arrest protesters in light of the coronavirus.

 “We are extremely concerned and we would find it extremely unconscionable for LMPD to start subjecting protesters to additional possible exposure to COVID-19 based on actions that just a week ago would not have put them in Metro Corrections,” Shapiro said.

Louisville Metro Department of Corrections has seen a surge of new cases in its facilities. As of Wednesday, at least 130 inmates have tested positive, according to WDRB.

Ryan Van Velzer is WFPL's Energy and Environment Reporter.