As Louisville Leaders Push Reform, Police And Prosecutors Push Back

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Stephanie Wolf

A police officer watches as protesters disperse from NuLu on Sept. 25, 2020.

Protests in Louisville grew tense as September came to a close. In the month’s final weekend, police made more than 200 arrests, squared off with protesters at a church, and falsely accused state Rep. Attica Scott of rioting and attempting to burn down a library in her own district.

For months leading up to this point, protesters had made their demands clear: Arrest the officers who killed Breonna Taylor, and change the way the police operate.

But as the protesters pleaded for reform, the police pushed back: in the streets with riot shields and batons, and in a more procedural way, as voting members of the Louisville Metro Criminal Justice Commission’s legislative committee opposed several reform measures.

The committee is made up of prosecutors, public defenders, court officials, police and others with a stake in the criminal justice system. Throughout September, after the officers who killed Taylor escaped criminal charges related to her death, the city pulsed with the protests while the committee convened for virtual meetings.

There, they discussed whether they’d lobby for more than thirty criminal justice reform measures — some of the same measures the protesters had called for since taking to the streets in late May.

Recordings of the meetings show that nearly half of the items up for discussion focused on law enforcement and stemmed from controversial police killings, instances of insufficient transparency, and a desire to improve accountability. The city’s police department and prosecutors often weren’t on board.

Louisville Metro Police officials, as well as local prosecutors, opposed seven of the 14 law enforcement related measures the committee considered. The only measures police officials proposed would add new penalties for “blinding” a law enforcement officer with a laser pointer, or doxxing a public employee.

The Jefferson Commonwealth’s Attorney did not respond to a request for comment. A spokesman for the Jefferson County Attorney said that while the office voted against some measures in committee meetings, those actions “does not mean that we are opposed to the idea, simply that we wanted to improve either the proposal itself or it’s chances of being adopted by the General Assembly.” 

Jefferson County Attorney Mike O’Connell initially voted against the full legislative priority list in a meeting of the full commission, but later emailed a commission staffer with a request to change his vote to reflect his support. 

LMPD Sgt. John Bradley said in an emailed statement the proposals “contained language rendering some of the measures impractical at best.”

“There was no opposition to the ideas presented, only the ill-structured nature of the proposals themselves,” he said. 

Ultimately, all but one measure aimed at cementing statewide police policy change passed the full commission anyway, and in all, the Criminal Justice Commission will lobby for 31 legislative priorities spanning policing, courts and juvenile justice when lawmakers return next year for the General Assembly.

Historically, the commission does little to actually lobby legislators to adopt their priority proposals, said Scott Furkin, the chair of the commission’s legislative committee. Usually, the commission drafts a letter and sends to the legislative leadership members, and nothing more.

This year, though, there is a sense of urgency to usher in change, he said. For that, he hopes the commission will take a more aggressive approach to lobbying support for their list of proposals.

“The climate is different this year, than in years past,” he said. “Because of the protests.”

Furkin said the value of each proposal is a “function of who you ask,” he said. 

Opposition, he said, is an expected byproduct of an adversarial criminal justice system.

“That, by its very nature, creates tension,” he said.

‘The Time Has Come’

The commission unanimously supported the measure that drew the most attention this summer: banning no-knock warrants statewide. The civil unrest sparked after LMPD officers killed Breonna Taylor while executing a no-knock warrant led the Louisville Metro Council to ban the practice in the county. Furkin anticipates state lawmakers will support the measures: Democratic Rep. Attica Scott has already filed legislation and Republican Sen. Robert Stivers has indicated he will.

Scott’s legislation will also seek to require police wear body cameras when executing a search warrant. The commission also voted to support such a measure, but with pushback from the Jefferson County Attorney. Ingrid Geiser, the office’s First Assistant, voted against the proposal without offering any explanation.

The commission is also pushing for broader reform of the search warrant process that would require a recording of conversations between judges and the officers who come seeking warrants. The recordings, as well as the warrants, would become public record once the search warrant is executed. Though LMPD supported that measure, it was opposed by the Jefferson County Attorney and the Jefferson Commonwealth’s Attorney.  

Anne Dyke, the county attorney’s criminal division director, worried the measure would put confidential informants — who police often use to gather the probable cause needed for a search warrant — at risk of retaliation. Erwin Roberts, the commonwealth attorney’s first assistant, said conversations between judges and police shouldn’t have “any bearing” on the warrant process, since judges must only consider information contained within “the four corners” of the warrant application.

Leo Smith, Louisville Metro’s chief public defender, said in the meeting that the recordings would simply serve as a mechanism to preserve evidence and boost transparency in an relatively secret sector of crime fighting.

“The time has come and we really need to address this,” he said.

Louisville Metro Police officials and the Jefferson County Attorney’s office also voted against a proposal that seeks to ensure Kentucky cities and counties have authority necessary to establish civilian review panels tasked with investigating complaints against police. The panels would be an independent body with the power to serve as a check on law enforcement through subpoena power, crafting policies and advocating for people who complain about police. Efforts are underway in Louisville to establish such a group, with the support of Mayor Greg Fischer. 

Neither Dyke nor LMPD Assistant Chief Shara Parks offered any explanation before voting against the measure. 

Post-Police Shooting Policies Examined

Police and prosecutors also opposed two measures aimed at reforming the process that follows critical police incidents. One would mandate that decisions to bring criminal charges against officers who use deadly force must be made within 60 days. The other sought to eliminate current protections in the law that allow police officers accused of violating procedures a 48-hour window before questioning, during which they currently receive a written statement informing them of the topic of questioning.

Bradley with LMPD told KyCIR expediting investigations into use of deadly force “is not workable as autopsy reports aren’t often returned until closer to 90 days.”

“In effect – each use of deadly force investigation would be in violation of law unless done without the evidence and information required to complete a thorough investigation,” he said. 

Erwin Roberts, with the Commonwealth’s Attorney’s office, said eliminating the 48-hour window would result in police officers simply refusing to provide any statement.

“It’s going to result in us having less information about what may have occurred,” he said.

Beth McMahon, the city’s deputy chief public defender, said in the meeting that the proposal was meant to inject equality in the criminal justice system. She said civilians aren’t afforded such a right, and police shouldn’t be either.

“The current system creates the appearance that there’s a different criminal justice system for police,” she said. 

That measure was the lone proposal not adopted by the commission as a legislative priority. Furkin and a representative from The Healing Place, an addiction recovery center, joined police and prosecutors in opposition.

But only the police representative opposed a statewide ban on chokeholds and other tactics that involve pressure to the neck or throat, or obstructs the ability to breathe.

LMPD policy already bans chokeholds. But Sgt. Nicholas Owen said he took issue with the banning of “chest compressions,” and voted against the measure.

“There’s some basic handcuffing 101 techniques that we’ve been teaching our recruits for years and years and years that could involve a shin across a suspect’s back while you’re trying to maintain control of their torso,” he said.

The commission also approved a number of reform measures that don’t deal specifically with policing, including proposals to eliminate cash bail and raising the felony theft threshold. B. Scott West, Kentucky’s deputy public advocate, pushed to establish a statutory right for criminal defendants to be physically present for their prosecution.

West said allowing defendants the right to be present in court for their prosecution is necessary once the pandemic subsides and courts eventually resume normal practice.

“Our fear is when we go back to what is a new normal there will be pockets of the state where someone will say, ‘We really liked the virtual court we’ve been having, let’s keep that going,’ and they won’t transfer a person from the jail to the courtroom,” he said. “We do not want to see this become the norm.”

The only vote against that measure came from the Commonwealth’s Attorney’s office.

Police Opposition Common

Police opposition to reform measures is not surprising and can be traced back decades, said Samuel Walker, professor emeritus at the University of Nebraska Omaha’s school of criminology and criminal justice.

“There’s little hope of getting them to accept it,” he said. 

But, Walker said the protests that erupted this summer could mean some reform measures gain traction. The key, he said, is targeted, persuasive lobbying efforts that engage and educate the public and legislators.

“Especially focused on the costs of not doing reform,” he said. “If we don’t do anything then we continue this toxic issue of police and community relationships.”

Police in Louisville, though, don’t seem ready to accept the reforms protesters are calling for, said Jecorey Arthur, the Metro Councilperson-elect for District 4, which encompasses downtown and the surrounding neighborhoods. Arthur pointed to a recent council meeting in which interim Chief Yvette Gentry pushed back on the council’s decision to limit some elements of use of force and push for de-escalation.

And reforms alone, he said, likely aren’t enough to meet the demands of the people who want change.

“It might be too much of a mess,” he said. “We need a reset more than a reform.”

The Louisville Metro Public Defender’s office proposed many of the police reform measures. Smith, the agency’s chief, said police reform is “desperately needed in this state and this community.”

“A two-tiered system of justice can no longer be tolerated,” he said. “In order to repair the broken criminal justice system, bold action must be taken and put into effect now.”

When the General Assembly resumes regular business on January 5, legislators’ top priority will be finalizing a state budget. That task is expected to cut into the work of crafting new laws and amending existing statutes. Furkin of the criminal justice committee admits that getting the Republican controlled legislature to value these proposals will be an uphill battle.

“I don’t think that some of these measures are going to really excite many of the lawmakers in the majority because they run counter to the ‘We back the police, we’re the law and order party,’” he said. “So I have to be realistic and expect that they won’t be embraced with open arms.” 

Sen. Whitney Westerfield, a Crofton Republican and chair of the judiciary committee, said his committee will not shy from tackling criminal justice reform measures. Westerfield expects bills related to no-knock warrant bans, search warrant reforms, and civilian review boards to be considered during the session.

“We always get a whole bunch of bills that come through the committee and we will get stuff done,” he said. “There will be criminal justice bills that I fully expect to pass.”

Contact Jacob Ryan at jryan@kycir.org.