Why Charges Against Protesters Are Being Dismissed by the Thousands

(New York Times) – Matt Kaufmann loved bringing real-world issues into his classroom, but he never expected he would become a lesson himself. The headlines, however, made it hard to avoid: “Kentucky High School Teacher of the Year Arrested,” blared the local news after he was detained on May 31.

An English teacher at Marion C. Moore School at that time, Mr. Kaufmann was among more than 800 people swept up by the police in Louisville during the many months of demonstrations prompted by the police killings of George Floyd in Minneapolis and Breonna Taylor in Louisville.

Mr. Kaufmann and his fiancée, protest novices, joined a large downtown crowd in late May, he said, when police officers began to break up the demonstration by firing tear gas and charging from all sides. With a helicopter thumping overhead, he suddenly found himself lined up on the ground with dozens of other protesters, then hauled off to a crowded jail cell.

“I had never experienced anything like that before,” Mr. Kaufmann, 41, said. “It was scary.”

Now, more than five months later, as Mr. Kaufmann’s case and those of thousands of others finally land in courts across the United States, a vast majority of cases against protesters are being dismissed. Only cases involving more substantial charges like property destruction or other violence remain.

Prosecutors called the scale of both the mass arrests and mass dismissals within a few short months unrivaled, at least since the civil rights protests of the early 1960s. With the police detaining hundreds of people in major cities, the arrests this year ended up colliding with the limitations of the court system.

In the aftermath, prosecutors declined to pursue many of the cases because they concluded that the protesters were exercising their basic civil rights. Cases involving free speech or free assembly rarely succeed in court, according to prosecutors across the country, and the coronavirus pandemic also played a role in the decision. A wave of thousands of minor cases threatened to capsize courts already floundering under hefty lockdown backlogs.

There was also the recognition that law enforcement officers often use mass arrests as a technique to help clear the streets, not to confront illegal behavior.

For those handling the cases, the task has felt Sisyphean. “Every day I would think I was done and the next morning there would be 50 or 100 cases to tally,” said Mary Ellen Heng, a deputy city attorney for Minneapolis. So far the city is pursuing about 75 of 666 cases.

“What’s happened in the last few months here is nothing like I have seen in my 23 years when it comes to the volume of cases,” she said.

Most charges in the almost 300 federal protest cases involve arson or assaulting police officers, as do the state and municipal cases.

“This is the hangover from months of protests,” said Ted Shouse, a criminal defense attorney in Louisville who helped to organize more than 100 volunteer defense attorneys.

Protest leaders and defense attorneys nationwide accuse the police of piling on charges to try to halt the demonstrations. “It was to squelch dissent,” said Attica Scott, the only Black woman in the Kentucky State Legislature and one of the protest organizers detained by the police.

The arrest of Ms. Scott in September has become one of the most contentious cases in Louisville because she and several other protest leaders were initially accused of trying to ignite a library, a felony, and of violating a 9 p.m. curfew.

The Jefferson County attorney, Mike O’Connell, appeared in court himself to ask that the felony charges be dropped after reviewing the evidence, including a live Instagram broadcast by Ms. Scott with a time stamp showing that the arrests came before curfew.

Defense attorneys working on cases in numerous cities said more people of color than white people were charged, but it was not a universal pattern. “Even adjusting for the racial makeup of the protests, Black people have been charged out of proportion,” Mr. Shouse in Louisville said.

A recent study by The Louisville Courier-Journal found that Black people constituted 53 percent of those arrested there during the four months starting May 29, but that they faced 69 percent of the felony charges. In Portland, Ore., which is predominantly white, white defendants constituted 65 percent of the more than 140 cases moving forward, while 32 percent were from other racial groups.

Sgt. John Bradley, a spokesman for the Louisville Metro Police Department, said that officers made arrests on the basis of Kentucky law, and that it was up to the county attorney whether to prosecute.

Precise numbers on both arrests and dismissals nationwide are elusive amid the complicated patchwork of law enforcement agencies and the state, county or city prosecutors involved.

In Los Angeles County, for example, the district attorney declined to file criminal charges against 334 people but is pursuing 257 cases of people arrested between the end of May and the beginning of August, said Greg Risling, a spokesman.

But not all jurisdictions in Los Angeles County are dismissing cases. Beverly Hills is pursuing misdemeanor charges against a group of 25 people stemming from one protest in June and plans to pursue others from another protest in July, said Rachel Steinback, the coordinator for the National Lawyers Guild of Los Angeles’s Mass Defense Committee.

In Portland, the Multnomah County District Attorney’s Office boiled its numbers down into a neat chart: District Attorney Mike Schmidt has rejected 721 cases, is pursuing 144 and has 165 under review.

Based on the example of Occupy Wall Street protesters a decade ago, Mr. Schmidt knew that judges would toss out most cases or impose small sentences. “Seventy to 80 percent would not survive constitutional challenges,” said Mr. Schmidt, who added that the costs far outweighed any benefit to public safety.

Adding 1,000 cases to the yearly average of under 20,000 would be daunting, he said. The same is true for the Minneapolis city attorney, whose office handles some 15,000 misdemeanors annually. “Even if Covid was not a problem, it would be a monstrous task for us to prosecute 500 additional cases,” Ms. Heng said.

Walk into virtually any large courthouse in America and the strain of dealing with the case backlog is palpable.

In Louisville, those cases are referred to as being in the “parking lot.” There are some 22,000 such cases over all, with just four of 10 trial courts functioning in the Jefferson County Courthouse. Across two days in late October, 300 protest case arraignments were jammed onto the calendar, about 10 times the normal rate.

Judge Lisa Langford briefly lost track of which cases were in the courtroom and which were on Zoom. “He has been waving at me, I thought he was just happy to see me,” she joked after locating a lawyer on Zoom.

Prosecutors have moved to dismiss 219 protest cases, said Josh Abner, the spokesman for the Jefferson County attorney.

“We don’t have a magic wand that we can wave in connection with all these cases,” said Mr. O’Connell, noting that a team of four prosecutors was combing through them.

After mass arrests during the 2000 Republican National Convention, Philadelphia legislated a lesser charge to get people off the streets. Police officers started issuing summonses outside regular courts. Misdemeanors and felonies go to the district attorney, while summonses do not.

Larry Krasner, the city’s district attorney, said that his office was reviewing 586 cases and that the city was dropping up to 2,000 summonses. Cases being reviewed involve incidents like breaking into stores or torching police vehicles.

Prosecutions there and elsewhere were also curtailed by the chaotic nature of the demonstrations, especially during the first few weeks when most arrests occurred. With the police working double shifts, paperwork lagged, so finding reports or witnesses for some cases proved impossible.

In Louisville, as the months drag on with the charges dangling overhead, many protesters feel stuck in limbo.

Kelly Parry, 33, both a volunteer defense attorney and a defendant, was among some 76 protesters arrested while blocking an avenue in July. “It is mentally draining not knowing what might happen to you,” she said. “You are constantly thinking, ‘Is this a small situation or will it become something bigger?’”

Mr. Kaufmann, the teacher, was charged with a curfew violation, a misdemeanor, but tried to ignore it. “I don’t want to give in to fear,” he said, focusing instead on his new job within the Jefferson County school system that involves helping to develop a social justice curriculum.

He and Stephanie Kornexl-Kaufmann, then his fiancée and now his wife, decided to join the protesters after hearing the recording of the 911 call that Kenneth Walker, Ms. Taylor’s boyfriend, made as the police broke into her apartment during a botched drug raid.

“We were dumbfounded, we were shocked,” Mr. Kaufmann said. “The country does not live up to the values that we have been teaching in class.”

Mr. Kaufmann had been named the state’s high school teacher of the year partly for building classroom discussions around real-world issues like the #MeToo movement. But none had hit quite so close to home.

News of his arrest spread at lightning speed.

Kaelyn Goatley, 17, a senior at Marion C. Moore School, had to explain to her grandmother, who was initially appalled, why Mr. Kaufmann’s arrest was a good thing.

“I was proud that I had a teacher who was out on the streets fighting for justice,” she said. “He has this big title being high school teacher of the year and the fact that he was out there protesting and being arrested meant that he risked that. It shows how adamant he is about making change.”

In late October, Mr. Kaufmann learned that the charges against him, his wife and a former student who was with them would be dropped. He was elated but noted that hundreds of cases were still pending.

“My young Black male and female friends who I met through the protests were in greater danger than I was and some of them are still dealing with these charges,” he said. “It is not fair, it is not consistent and we have to do better.”