Judge launches case against BLM protester who blocked I-25, citing free speech
COLORADO SPRINGS, Colo. (The Gazette) – A judge has dismissed the case against one of 18 people named in Colorado Springs after a Black Lives Matter protest on Interstate 25, calling it a violation of his freedoms rights. ‘expression.
El Paso County Court Senior Judge Stephen Sletta on Wednesday dismissed the lone misdemeanor against Molly Avion, 21. In a two-page ruling, he concluded that the state statute used against it – which makes it illegal to obstruct freeways – was too broad in a way that could chill the exercise of the First Amendment and invite enforcement. “arbitrary”.
The dismissal means that at this time, Avion will not stand trial after participating in a BLM protest on June 30 that partially blocked I-25 northbound near the Bijou Street exit in downtown.
“I was already determined to speak up,” said Avion, an artist and Colorado Springs resident, a day after the dismissal, applauding the end of what she called political retaliation from the Colorado Springs Police Department. “The fact that my case was rejected is a further encouragement to continue.”
But she may not be completely off the hook – and there is no guarantee that other protesters will benefit from the ruling, legal experts say.
The 4th Judicial District Attorney’s Office is considering an appeal, a spokesperson confirmed, and the charge could be reinstated if the appeal is upheld. Spokesman Howard Black cited a Colorado law stating that prosecutors have a “duty” to defend laws if they are found to be unconstitutional as enforced in any criminal case. Black declined to comment further.
The I-25 protest also made headlines after Colorado Springs Police Sgt. Keith Wrede, on leave, used Steven Eric’s pseudonym on Facebook and commented on “KILL EM ALL” and “KILL THEM ALL “on a live video of the demonstration. Police administrators cut his salary by 40 hours and reassigned him to a different unit, stopping short of calls from critics asking for Wrede to be fired.
Sletta’s dismissal is the latest legal fallout from last year’s historic racial justice protests, which spawned weeks of street protests in Colorado Springs and led to dozens of arrests, mostly for non-violent offenses, including resistance to arrest. It is difficult to say if this will be repeated for the Airplane co-defendants.
Even as supporters of the protesters celebrated Sletta’s decision, longtime legal observers have warned that other judges are not required to adopt his reasoning, potentially limiting the effect of his decision.
“They will read Sletta’s opinion, with respect and thought, and agree or disagree. They don’t have to follow him, ”said longtime Colorado Springs defense attorney Phil Dubois, who is not involved in the case.
Josh Tolini, a lawyer representing a woman awaiting trial in the I-25 protest, said he hoped other judges would be persuaded by what he called an “extremely well-reasoned” opinion.
“It’s unusual in a county court to get a written order that contains so much legal research and such thinking,” he said.
But he complained that with the protesters’ cases being “scattered” among various divisions of the El Paso County Court, they could see vastly different results.
“It would be problematic if one person had a case dismissed and another person got a conviction for doing the exact same thing and the only difference is which judge they were assigned to,” he said.
Longtime Colorado Springs attorney Shimon Kohn called it “very rare” for El Paso County judges to dismiss criminal cases after finding a law unconstitutional as applied.
“This is the second time I’ve heard of it,” Kohn said. Similar challenges to free speech are routinely dismissed when protesters block roads or refuse to disperse, making Sletta’s decision a significant victory for Avion’s legal team, he added.
In defending their cases against other defendants, prosecutors are likely to say that each case is different enough that Sletta’s ruling does not apply, lawyers said.
Updates were not available for many other protesters, but lawyers for two of them confirmed they have filed or are considering filing similar motions following Sletta’s dismissal.
Sletta’s ruling held that if the courts allow the government to apply “restrictions on time, place and mode of expression”, those restrictions must be “content neutral”, meaning that they cannot be based on the opinions expressed.
But state law that prohibits obstructing freeways requires police and prosecutors to show traffic has been disrupted “without legal privilege” – suggesting an illegal threshold based on content, the judge said.
“The vagueness of ‘legal privilege’ makes the law and obstruction susceptible to arbitrary and selective enforcement,” Sletta wrote.
In her motion for the dismissal, public defender Amanda Bishop cited evidence of what she called selective enforcement. Although Colorado Springs Police went to great lengths to locate them all after the I-25 protest, they did not name anyone during the Stop the Steal protests, which blocked traffic for post-election unrest based on unsubstantiated claims that the election was “stolen” from former President Donald Trump, according to the motion.
“By using this statute to indict only Black Lives Matter protesters, police violated free speech in a content-based manner,” Bishop wrote.
Colorado Springs Police spokesperson Lt. Jim Sokolik did not return an email requesting comment.
Prosecutors had previously dismissed the allegations of political retaliation, saying they “obscured the real issue.”
“This case is not about people’s right to protest, or the Black Lives Matter movement,” the DA office said in a written statement in December. “This is anyone who chooses to close a public highway, endangering the innocent life of anyone who unknowingly drove on that area of the highway that night.”
Protesters were ticketed after driving on the freeway and getting out of their car, blocking traffic for about half an hour, police said. The group, whose members were in a dozen cars, stopped in the middle of the northbound lanes near the Bijou Street exit, where they chanted “no justice, no peace” and other slogans. associated with the movement for racial justice.
Police used social media posts, television news footage and appeals to the public to obtain information to locate the participants, who were later cited, authorities said.
If found guilty, protesters face up to six months in prison plus a possible fine of up to $ 350.
Prosecutors have since confirmed in court that they will not offer plea bargaining to lesser charges for those who blocked the traffic, which Bishop in his petition called “a vengeful lawsuit.”
Refusing to consider plea negotiations is a rare position for the prosecutor’s office, which regularly expands plea offers in violent crimes and deaths due to drunk driving, among other serious cases, say lawyers. of the defense.
Among the defendants who could benefit if other judges adopted Sletta’s reasoning are Charles Johnson of Colorado Springs, a central figure in the Black Lives Matter protests in the city, and one of three people arrested after a protest. August 3 in the Pulpit Rock neighborhood that police later called. riot. The incident occurred in August 2020, on the anniversary of the day two Colorado Springs police officers shot De’Von Bailey in the back after fleeing an arrest.
A month earlier, Johnson was also among those who helped stop traffic on I-25 during the June 30 protest, police said, and he received the same citation the judge dismissed against Avion.
Alison Blackwell, Johnson’s attorney, filed a motion Thursday asking Presiding District Judge Marcus Henson to dismiss the offense on constitutional grounds. She argues that Johnson shouldn’t have to wait for the judge’s decision.
“I think it should be to persuade people in the DA’s office to start thinking differently about these types of cases,” Blackwell said.
Johnson is to be tried on September 27 on six counts associated with the Pulpit Rock protest: threatening, attempted robbery, attempted robbery, participating in an unarmed riot – all crimes – and traffic obstruction and disobedience to a public security order.
Blackwell told the court that the charges were the result of “political prosecution.”
She said the other two indicted in the case may have been armed, but Charles Johnson did not have a weapon.
“He wasn’t trying to steal from anyone,” she said.
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