LOUISVILLE, Ky. (WDRB) -- Who gave the orders to teargas protesters on certain nights of more than a hundred days of protest in Louisville? Did the mayor give a stand-down order that allowed looting and destruction during riots in late May? Why did the city flip-flop on enforcing certain laws like the one that bans camping in parks? And who gave the order to trash protesters' belongings at the park in late June?
The Metro Council Oversight and Audit committee investigating the city’s response to months of protest wants answers to all of those questions and others, but continues to hit roadblocks. The latest one: Louisville Metro Police Department Interim Chief Robert Schroeder won’t testify during a Wednesday meeting, according to his attorney.
In mid-July, the committee initiated an investigation of the mayor's handling of the Breonna Taylor shooting, the David McAtee shooting and the months of protests that have followed.
In August, as the committee sought testimony from Chief of Public Safety Amy Hess and Schroeder, attorneys for Hess and Schroeder argued that their clients testifying in a public hearing could jeopardize their positions in a pending lawsuit filed by the American Civil Liberties Union and expose the city to more liability.
Hess and Schroeder walked out of an Aug. 3 council hearing on the advice of their attorneys, who cited a federal civil rights lawsuit the ACLU filed against Metro Government, Fischer, Schroeder and several LMPD officers. Instead, the attorneys said Schroeder and Hess were willing to testify publicly later, or answer questions immediately behind closed doors in executive session.
Council members denied that offer, demanding an open session.
"There will be nothing hidden from the public regarding this matter," said Councilman Brent Ackerson, D-26, during the Aug. 3 hearing. "Zero. Plain and simple. So, with that being said, if you’re not going to proceed, there’s the door.”
After Schroeder and Hess walked out, all of the committee members, except one, voted to formally subpoena them to compel open testimony. In response, Fischer and Metro Government filed a lawsuit against Metro Council arguing that the Kentucky Open Records Act allows for testimony to be given in private, executive session when it concerns matters under litigation.
However, in September, Circuit Court Judge Audra Eckerle ruled that both Hess and Schroeder "can testify before Metro Council without subjecting themselves or government to any harm."
"The testimony is virtually inevitable, and it should proceed before it becomes irrelevant," Eckerle concluded.
Council swiftly re-subpoenaed both Hess and Schroeder and rescheduled a hearing to collect testimony for Sep. 16. While Hess is confirmed, Schroeder will not testify, according to his attorney.
In a Monday court motion, Schroeder and his attorney, Joey Klausing, argued the judge's order should be revisited. Klausing says the order didn't specifically address legal concerns raised by Schroeder, who's named individually in the ACLU lawsuit.
"Altering, amending, or vacating the Court’s order is required to prevent manifest injustice to Chief Schroeder and his ability to protect himself in a lawsuit in which he was named in his individual capacity, and which seeks monetary damages," Klausing wrote, in part. "As it currently stands, the Court’s order contains several shortcomings that require clarification. The order places Chief Schroeder in the unenviable position of being required to appeal to the Court of Appeals and asking it to review an issue of law upon which this Court did not address."
Councilman David James, D-6, is disappointed by the news Schroeder won't testify Wednesday.
"It's really bad for the city," James said. "I would have thought more of the administration and Chief Schroeder to want to actually provide information to the citizens about what did or did not happen."
James characterizes Klausing's motion as a delay tactic for Schroeder, who’s set to retire in just days.
"And once he retires, we have no ability to bring him back (to testify)," James added.
James thinks it's time for the committee to subpoena other LMPD command staff, as has been suggested by others, if Schroeder won’t testify.
Klausing, meanwhile, says he's told the committee he's open to rescheduling the hearing with Schroeder.
"But we've got to get a ruling from the court first," he adds.
Wednesday, council will proceed with collecting testimony from Hess, who the mayor's office confirmed Tuesday night will attend and participate. Council members might also seek testimony from any LMPD lieutenant colonels who attend the meeting voluntarily.
The meeting is set to begin at 2:30 p.m. and could last up to four hours.
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