FRANKFORT, Kentucky – The Kentucky state Senate passed a bill Thursday evening to enhance penalties for crimes related to rioting after more than an hour of heated debate, including criticism that it would criminalize insulting police officers and chill protected free speech.
Sen. Danny Carroll, R-Benton, a retired police officer, said his Senate Bill 211 would crack down on and send a message to those who “tried to destroy the city of Louisville” in the civil unrest last year.
In addition to raising punishments on crimes related to rioting and prohibiting early release on such offenses, SB 211 would make it a crime to provoke an officer verbally to the point it could provoke a violent response.
Though Carroll said “insulting an officer is not going to cause anyone to go to jail,” his bill states a person is guilty of disorderly conduct – a Class B misdemeanor with a penalty of up to 90 days imprisonment – if he or she “accosts, insults, taunts, or challenges a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.”
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The bill passed by a 22-11 vote, with six Republicans joining Democrats to vote ‘no.’
Sen. Gerald Neal, a Democrat who represents a majority-Black district in west Louisville, said he was insulted by Carroll’s bill, which he viewed as a direct attack on his constituents who protest for and demand racial justice.
“This is another hammer on my district,” Neal said. “This is a backhand slap. And I resent it. I personally resent it.”
An angered Neal twice said “how dare you,” calling the bill “beneath this body. It’s unwise. It’s provocative. It’s unnecessary. It’s unreasonable.”
Neal added he was “befuddled” by the legislation, as laws are already on the books to deal with violent rioters, saying it could harm the city’s efforts to come together and heal after the tumultuous months of protests kicked off by the fatal police shooting of Breonna Taylor.
Meanwhile, law professors and attorneys said the bill violates the First, Fourth and Fourteenth amendments to the Constitution, including free speech, equal protection and due process.
If it were to pass, it’s likely too vague and broad to uphold a conviction against an appeal, they said.
If challenged, the U.S. Supreme Court could rule based on the Vagueness Doctrine, or the idea that a law is unenforceable if it’s too vague for the average citizen to understand, said Geoffrey Stone, a professor at the University of Chicago Law School.
The bill would “chill” permissible, protected speech because a reasonable person wouldn’t know what behavior was prohibited or permitted, Stone said.
“When you start putting criminal offenses on insulting a particular type of government employee, that law is going to be unconstitutional in all its applications,” said Michael Abate, a First Amendment attorney who has represented The Courier Journal, which is part of the USA TODAY Network.
“It gives far too much discretion to individual police officers to make arrests when their feelings are hurt,” he said.
Abate said the bill presents “incredibly serious” First Amendment problems that go “far beyond” what the Constitution would permit. Senate Bill 211 is so vague and so broad that someone could be criminally charged for saying they don’t like the police, he said.
“I think it’s dangerous because we see police already using existing laws to overcharge protesters. This new statute could open the door for them charging based on their own feelings and how threatened they perceive themselves to be,” Abate said.
Carroll stood by his bill amid the criticism by Neal and other Democrats Thursday evening, saying the legislature would take the steps necessary to protect police officers and property in Louisville that Mayor Greg Fischer failed to take last year.
“The silent majority in this state supports this legislation,” Carroll said. “They are as troubled by what has happened in this country, by what happened in Louisville, as I am. I will not apologize for this bill.”
According to a Courier Journal review of data, Louisville Metro Police recorded 871 protest-related arrests – including 252 with at least one felony charge – between May 29 and Sept. 28. Black people made up 53% of the total arrests and 69% of arrests with a felony.
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Sen. Reggie Thomas, D-Lexington, said the passage of a bill like SB 211 could overshadow the goodwill and positive racial justice work of the session to advance legislation banning certain no-knock warrants, giving subpoena power to Louisville’s police civilian review board and creating a new TIF district in west Louisville.
Sen. Morgan McGarvey, D-Louisville, criticized the section criminalizing taunting police, noting those arrested on such a charge must be held in jail for at least 48 hours – a penalty that does not automatically extend to those arrested on murder, rape and arson in Kentucky.
“This bill shatters what we’re working toward healing,” McGarvey said. “This furthers the divide and it puts us legally down a road where I cannot believe this body wants us to go.”
Several of the Republican members to vote against the bill – including Sen. Julie Raque Adams of Louisville – explained their opposition to the mandatory 48-hour holds and the provision on insulting or taunting police, hoping the House sends back an amended bill striking those sections.
Follow Joe Sonka on Twitter at @joesonka.