LOUISVILLE, Ky. (WDRB) -- Inspired in part by reaction to Breonna Taylor’s death, a bill making it a crime in Kentucky to taunt or insult a police officer cleared the state Senate Thursday night after a sometimes fiery floor debate.
Senate Bill 211 increases penalties for people convicted of crimes committed during or near a riot, which the measure defines as a “public disturbance” of five or more people whose “tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.”
It also would require someone arrested during a riot to stay in jail, with no chance of bond, for 48 hours after they are detained and until their first court appearance.
Sen. Danny Carroll (R-Benton), the bill’s lead sponsor and a former assistant Paducah police chief, said the measure is in response to “riots” in Louisville and other U.S. cities, including in Washington D.C. It aims to protect first responders, deter riots, protect public and private property, and hold local governments accountable, he said.
“We need to send a clear message to those outside this Commonwealth that the welcome mat is no longer there if you plan to come to our Commonwealth to terrorize our people, attack our police, assault communities, assault people, assault first responders and destroy our cities,” Carroll said.
He said the bill addresses changes that need to happen in the wake of last year’s demonstrations and, time and again, blamed Democratic Louisville Mayor Greg Fischer for the city's response, including orders for officers to stand down during protests.
But Sen. Gerald Neal (D-Louisville) argued on the Senate floor that the bill singles out Jefferson County and comes as Louisville is trying to heal from last year’s protests over the March 13, 2020 fatal police shooting of Taylor. And, he said, there already are laws in place to address what the legislation wants to do.
Neal also called it a “ruse” for Carroll to cite other bills the legislature has considered in response to civil unrest, such as measures addressing no-knock warrants, and efforts to spur economic development in Louisville’s predominantly African American western neighborhoods.
“This is a hammer on my district. This is a backhand slap, and I resent it. I personally resent it,” Neal said. “This is beneath this body. It's unwise. It's provocative. it's unnecessary. It's unreasonable.”
Among other things, the bill would:
-Apply third-degree assault charges, a Class D felony punishable by one to 5 years in prison, for someone who intentionally hurts a police officer or EMT with “chemical agents or fireworks.”
-Enhance current penalties for convictions on charges committed during a riot or in “reasonable proximity to the riot.” That includes, for example, no probation, parole or other forms of early release for misdemeanor and felony offenses.
-Make it a Class A misdemeanor, with penalties up to 90 days in jail, to camp on state-owned property that’s not designated for camping. Protesters in Louisville set up camp last year at Jefferson Square Park, the epicenter of the demonstrations following Taylor’s death.
-Makes it a felony, not a misdemeanor, to resist arrest during a riot.
The bill would create Class B misdemeanor charges – punishable by up to three months in jail and a $250 fine – for anyone who attempts to prevent police from “accessing an assembly, protest, demonstration, or other gathering of people on a highway or public passage.”
Those same charges would apply to anyone who “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.”
Sen. Morgan McGarvey of Louisville, the Democratic Senate floor leader, said he is particularly concerned that someone arrested on those charges could not post bond for 48 hours.
“Why do I sound outraged by that? You can bond out of jail in under 48 hours if you’ve been accused of murder, arson or rape,” he said. “But you can’t do it if you taunt somebody because we’ve decided it’s not right up here. We don’t like it.”
McGarvey and other lawmakers said the bill may violate First Amendment protections, but Carroll argued that the violence-provoking speech in the bill qualifies as "fighting words" -- a category exempt from constitutional protection under a 1942 Supreme Court case.
The bill cleared the Republican-controlled Senate on a 22-11 vote, with six GOP senators joining with five Democrats in opposition. No Democrats voted for the bill.
Sen. Julie Raque Adams (R-Louisville), the Senate’s majority caucus chair, said she liked parts of the bill but was voting against it because of the language making it a crime to insult an officer. That section, she said, is “crafted too broadly, I believe, to make this bill constitutional.”
Raque Adams said she will review her position on the bill if the House makes changes to that part.
Republican Sen. Wil Schroder of Wilder also said he supported aspects of the bill but ultimately voted against it because it eliminates shock probation in riot-related convictions.
“When you take that away, you're really saying that there's a one size fits all approach,” he said. “And we are saying, as a General Assembly, we can foresee what has come before them, and that they should treat all those instances the same. And we simply know that is not the case.”
The Kentucky State Fraternal Order of Police supports the bill "because of the protections it offers the community and the public safety professionals who are sworn to protect it," governmental affairs director Ryan Straw said in a statement.
"We believe in the right to peacefully protest. Law enforcement saw first hand the difference in those exercising their First Amendment rights and those who took part in a riot," he said.
"It was clear after last summer we needed to address a number of concerns on both sides and we feel that this bill corrects a number of these issues," he added.
The River City FOP, which represents Louisville officers, did not immediately respond to a request for comment about the bill Friday.
The ACLU of Kentucky and Americans for Prosperity Kentucky issued a joint statement opposing the measure on Friday, saying it would give law enforcement officers the ability to "undermine the First Amendment rights of all Kentuckians."
ACLU of Kentucky legal director Corey Shapiro said the bill is "an extreme piece of legislation that directly targets racial justice protesters and would stifle free speech for all Kentuckians."
The statement said in part that it's "offensive" that lawmakers are trying to criminalize speech they deem offensive.
"When Kentuckians are in so much pain they must take to the streets to be heard, lawmakers should open dialogue, not silence the very people they were elected to serve," Shapiro said. "The House must reject this draconian measure and protect every Kentuckians’ constitutional right to express themselves.”
Activists with the libertarian-leaning Americans for Prosperity chapter share lawmakers' concerns about public safety, the organization's state director, Mike Conway, said.
“That’s why attacking people and destroying property are already illegal acts. Senate Bill 211 will not change that distinction, but will risk punishing Constitutionally protected public participation," he said. "The General Assembly knows protecting public safety and upholding constitutional freedoms aren’t mutually exclusive—they should reject this flagrant violation of Kentuckians’ rights.”
The bill now heads to the House, which must take it up in the final days of the legislative session. After Friday, there are four legislative days left.
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“Our activists share lawmakers’ concerns about public safety. Violence is unacceptable and rioting is not free speech,” said AFP-KY State Director Mike Conway. “That’s why attacking people and destroying property are already illegal acts. Senate Bill 211 will not change that distinction, but will risk punishing Constitutionally protected public participation. The General Assembly knows protecting public safety and upholding constitutional freedoms aren’t mutually exclusive— they should reject this flagrant violation of Kentuckians’ rights.”