Judge tosses case against BLM protester who blocked I-25, citing free speech

COLORADO SPRINGS, Colo. (The Gazette) - A judge has tossed the case against one of 18 people cited in Colorado Springs after a Black Lives Matter protest on Interstate 25, calling it a violation of her free-speech rights.

El Paso County Court Senior Judge Stephen Sletta on Wednesday dismissed the lone misdemeanor filed against 21-year-old Molly Avion. In a two-page ruling, he found that the state statute used against her — which makes it illegal to obstruct highways — was overly broad in a way that could chill the exercise of the First Amendment and invite “arbitrary” enforcement.

The dismissal means that for now, Avion will not face trial after participating in a BLM protest on June 30 that partially blocked northbound I-25 near the Bijou Street exit downtown.

“I was already determined to speak out,” Avion, an artist and Colorado Springs resident, said a day after the dismissal, cheering the end of what she called a politically based retaliation by Colorado Springs police. “The fact that my case was dismissed is further encouragement to continue.”

But she may not be completely off the hook — and there’s no guarantee other protesters will benefit from the ruling, legal experts say.

The 4th Judicial District Attorney’s Office plans to appeal, a spokesman confirmed, and the charge could be reinstated if the appeal is successful. Spokesman Howard Black cited a Colorado law stating that prosecutors have a “duty” to defend statutes if they are ruled unconstitutional as applied in any criminal case. Black declined further comment.

The I-25 protest also drew headlines after an off-duty Colorado Springs police sergeant, Keith Wrede, used the pseudonym Steven Eric on Facebook and commented “KILL EM ALL” and “KILL THEM ALL” on a livestream video of the protest. Police administrators docked his pay by 40 hours and reassigned him to different unit, stopping short of calls by critics that Wrede be fired.

Sletta’s dismissal is the latest in legal fallout from last year’s historic racial-justice protests, which spawned weeks of street demonstrations in Colorado Springs and led to dozens of arrests, mainly for nonviolent offenses including resisting arrest. It’s difficult to say whether it will be repeated for Avion’s co-defendants.

Even as advocates for the protesters celebrated Sletta’s ruling, longtime legal observers cautioned that other judges are not required to adopt his reasoning, potentially limiting his ruling’s effect.

“They will read Sletta’s opinion, respectfully and thoughtfully, and will agree or disagree. They are not bound to follow it,” said longtime Colorado Springs defense attorney Phil Dubois, who isn’t involved in the case.

Josh Tolini, an attorney who represents a woman awaiting trial in the I-25 protest, said he was hopeful that other judges would be persuaded by what he called an “extremely well-reasoned” opinion.

“It’s unusual in county court to get a written order that has this much legal research that has gone into it, and this much thought,” he said.

But he complained that because protesters’ cases were “scattered” among various divisions at the El Paso County County Court, they could see wildly different results.

“It would be problematic if one person had a case dismissed and another person got a conviction for doing the exact same thing and the only difference is which judge they were assigned to,” he said.

Longtime Colorado Springs attorney Shimon Kohn called it “very rare” for El Paso County judges to dismiss criminal cases after making a finding that a law was unconstitutional as applied.

“This is the second time I’ve heard of it,” Kohn said. Similar free-speech challenges are routinely rejected when protesters block roads or refuse to disperse, making Sletta’s ruling a significant victory for Avion’s legal team, he added.

In defending their cases against other defendants, prosecutors are likely to assert that each case is different enough that Sletta’s ruling shouldn’t apply, attorneys said.

Updates weren’t available for many of the other protesters, but attorneys for two of them confirmed they had filed or planned to file similar motions in the wake of Sletta’s dismissal.

Sletta’s ruling reasoned that while the courts permit the government to enforce “restrictions on time, place and manner of expression,” those restrictions must be “content-neutral,” meaning they cannot be based on the opinions being expressed.

But the state law that makes it illegal to impede highways requires police and prosecutors to show that traffic was disrupted “without legal privilege” — suggesting an illegal, content-based threshold, the judge said.

“The vagueness of ‘legal privilege’ makes the statute and the obstruction to be susceptible to arbitrary and selective enforcement,” Sletta wrote.

In her motion requesting the dismissal, public defender Amanda Bishop cited evidence of what she called selective enforcement. Although Colorado Springs police went to lengths to track them all down after the I-25 protest, they issued no citations to people at “Stop the Steal” protests, who blocked traffic during post-election unrest based on unsupported claims that the election was “stolen” from former President Donald Trump, the motion said.

“By utilizing this statute to charge only Black Lives Matter protestors, the police violated free speech in a content-based way,” Bishop wrote.

A spokesman for Colorado Springs police, Lt. Jim Sokolik, did not return an email requesting comment.

Prosecutors previously dismissed claims of political retaliation, saying they “obfuscate the real issue.”

“This case is not about people’s right to protest, nor is it about the Black Lives Matter Movement,” the DA’s office said in a written statement in December. “It is about anyone who chooses to shut down a public freeway, thus endangering the innocent lives of any person who unknowingly drove on that area of the freeway that evening.”

The protesters were ticketed after driving onto the interstate and getting out of their cars, tying up traffic for about a half hour, police said. The group, whose members rode in roughly a dozen cars, stopped in the middle of the northbound lanes near the Bijou Street exit, where they chanted “no justice, no peace,” and other slogans associated with the racial justice movement.

Police used social media posts, television news footage and appeals to the public for information to track down attendees, who were later cited, authorities said.

If convicted, the protesters face up to six months in jail plus a possible fine of up to $350.

Prosecutors have since confirmed in court that they will not offer plea bargains to lesser charges for those who tied up traffic, what Bishop in her motion called “vindictive prosecution.”

Refusing to consider plea bargains is a rare stand for the DA’s office, which routinely extends plea offers in violent crimes and drunken-driving deaths, among other serious cases, defense attorneys point out.

Among defendants who could benefit if other judges adopt Sletta’s reasoning is Charles Johnson of Colorado Springs, a central figure in the city’s Black Lives Matter protests, and one of three people arrested after an Aug. 3 demonstration in the Pulpit Rock neighborhood that police later called a riot. That incident came in August 2020, on the anniversary of when two Colorado Springs police officers fatally shot De’Von Bailey in the back after he ran from an arrest.

A month earlier, Johnson was also among those who helped stop traffic on I-25 during the June 30 protest, police say, and he received the same citation that the judge dismissed against Avion.

Alison Blackwell, Johnson’s attorney, filed a motion Thursday asking presiding district Judge Marcus Henson to dismiss the misdemeanor on constitutional grounds. She argues that Johnson shouldn’t have to wait for the judge’s ruling.

“I think it should be persuading the people over at the DA’s office to start thinking about these types of cases differently,” Blackwell said.

Johnson is set for a trial Sept. 27 on six counts associated with the Pulpit Rock protest: menacing, attempted robbery, attempted theft, engaging in a riot without a weapon — all felonies — and misdemeanor counts of obstructing traffic and disobeying a public safety order.

Blackwell has said in court the charges were the result of “political prosecution.”

She said the two other people charged in the case might have been armed, but that Charles Johnson did not have a weapon.

“He wasn’t trying to rob anyone,” she said.

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