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Last week, Kentucky state Rep. Lisa Willner submitted a request to draft “Attica’s Law,” a bill that would eliminate a clause from Kentucky’s rioting statute that lets prosecutors charge anyone who was a part of a group of rioters even if they themselves did not engage in “riotous activity.” The law’s namesake is Attica Scott, a Kentucky legislator who was recently arrested along with 22 other protestors including her daughter for a Class D felony offense of first degree rioting, the same class of charge faced by the sole officer to be prosecuted for events related to Breonna Taylor’s death. Police said that Scott and the others were a part of a larger group of protesters that caused damage to the Louisville Public Library. Scott has described the arrest as “absurd” saying in an interview with WFPL that it was “retaliation against me being an outspoken critic of both administration and law enforcement and I truly believe their message is we are going to squash your dissent, quell your dissent, shut up the loudest critics.” Scott, who is the state’s only Black representative, was released from Louisville county jail the next morning.

While Willner’s bill would protect protesters who are caught in the crosshairs of riots and deemed guilty by association, it doesn’t address the criminalization of political dissent that has in part defined the backlash against this year’s protests against police violence. Since May, over 2,000 protestors have been arrested. Many have been charged with felonies and jailed, and even after release they remain subject to the ongoing violence of the criminal legal system. While COVID-19 has exacerbated the financial burden of fees and the health impacts of pretrial detention, the criminalization of protest this year is not new.

In fact, it falls within a trend of anti-protest bills being drafted in direct response to protests and social unrest over the past few years. According to a report released this May by PEN America, between 2015 and 2019, 116 bills directly limiting protest rights have been proposed in state legislatures across the country. 23 of those proposals have become law in 15 states.

This “explosion of anti-protest legislation,” as report author Nora Benavidez describes it, was a result of both Donald Trump’s presidency and a shift from Democratic- to Republican-led state legislatures. Of the 116 bills, 95 had a Republican primary sponsor, 13 had a Democratic sponsor, five were introduced by legislative committees, and only two had bipartisan sponsorship.

Critics of Scott’s arrest and the arrests of protestors nationwide have pointed out the ways that the lawmakers behind this legislation have deliberately created a chilling effect to dissuade demonstrators from exercising their first amendment rights. The bills feature remarkably high fines, convert former misdemeanors to felonies with longer sentences, and hold protesters and organizers liable when protesters are harmed or subject to violence, including government-inflicted violence by police. The PEN report notes that these pieces of legislation tend to be proposed immediately after major demonstrations, with many of the 2015 bills being sparked by the 2014 Ferguson, Mo. protests after officer Darren Wilson fatally shot Michael Brown. The link between political activity and the subsequent legislation is made even clearer by the fact that the legislation itself often seeks to criminalize the very type of protest that has just occurred.

“In states where there were highway protests led by Black Lives Matter protesters, shortly thereafter we saw a number of examples in places like Missouri, Minnesota, and elsewhere, where legislators were really quick to introduce bills that would increase penalties if you blocked highways, or other roadways,” said Benavidez in an interview with Prism.

“In the same way, if there were Dakota pipeline protests, or protests challenging another kind of critical infrastructure site, we saw a number—and I mean like dozens of examples—where legislators quickly introduced legislation that would increase penalties for people who were marching or demonstrating near critical infrastructure sites, which really means to me that there are only specific protests and voices that these bills are attempting to chill, and those are Black, Indigenous, and other people of color.”

Benavidez also notes that this legislation is frequently rushed through special sessions, preventing community members, organizers, or lawyers from submitting public comments. The speed and lack of transparency of the process can also leave potential protestors unsure whether the legislation has even passed, which deters protest activity that may not even be criminalized. For those who are relatively new to protesting or nervous about getting involved, the dissuading effect of possible prosecution may be especially strong. But the legislation isn’t just targeting those who are new to political engagement.

In recent years, there have been several incidents much like Scott’s where elected officials are arrested for protesting. In August, Virginia state senator Louise Lucas was charged with conspiracy to commit a felony after her alleged involvement in the toppling of a Confederate statue in Portsmouth. In 2018, Georgia Senator Nikema Williams was arrested during a protest against the state’s vote tabulation process and voter suppression. The state law under which Williams was arrested criminalizes anyone who “recklessly or knowingly commits any act which may reasonably be expected to prevent or disrupt a session or meeting of the Senate or House of Representatives.” While Wiliams’s arrest was not a result of an anti-protest law specifically, Benavidez notes that officers chose to arrest her knowing who she was and the platform she held. This week, Williams filed a lawsuit against a dozen public safety officers involved in her arrest alleging that the offense that she was arrested for is unconstitutional and violates freedom of speech protections granted under the First Amendment. Notably, like Scott, both Lucas and Williams are Black women.

“I think it is worth really considering what this is doing when we see photographs of Black women who are in leadership positions arrested for trying to fight for being on the right side of history,” said Benavidez. “It almost seems to suggest that government officials are not wanting to have those women and those voices speak out or be heard.”

This is particularly true of legislators like Scott, who is the only Black legislator in her state and also a vocal advocate on behalf of protestors and those who are fighting for change. Just earlier this summer, Scott filed a lawsuit against the Louisville Metro Police Department for their treatment of demonstrators, and she recently pre-filed “Breonna’s Law”, a state bill that would ban no-knock raids. Scott drafted the bill using a citizen sponsorship model, giving the community ownership over the law. While the bill has 11 legislative cosponsors it currently has over 900 community co-sponsors. In Louisville, such raids were banned at the local level this summer under a bill passed by the city’s metro council.

While these targeted arrests send a clear message from law enforcement and anti-protest legislators, Benavidez says that they can also inspire action amongst protesters and organizers. The arrests evoke the image of what the late John Lewis called “good trouble,” as Lewis himself famously engaged in political protest during the March on Selma and was met with the type of police violence that protestors still face today. As present day legislators wield the law in ways that compromise people’s political agency, it’s crucial for people to understand how this backlash sits in a long timeline that has often been sanitized.

“Part of what we have seen is that people do not receive information about how protest is not inherently criminal,” said Benavidez. “This summer I have seen people—well intentioned people—not understand what the First Amendment means, what freedom of assembly is, and what freedom of speech is, and so frankly, part of our role is often to try to educate people about that, and that includes talking about these historical truths. On the one hand, the way that the civil rights era is now, largely applauded and seen as a wonderful movement towards social change. And yet, so much of those actions at the time were met with very similar efforts as right now on the part of legislators and government leaders to basically crackdown violence or criminalize Black leaders and Black movement building.”

Tamar Sarai Davis

Tamar Sarai Davis is the criminal justice staff reporter at Prism. Follow her on Twitter @bytamarsarai.