There is an interesting controversy in Salt Lake City this week where police are investigating whether Sen. Derek Kitchen (D., Salt Lake) contributed money to buy paint to use to vandalize the street in front of the Salt Lake County District Attorney’s Office . I have serious reservations on free speech and free association grounds over this type of investigation. It creates a type of “material support” crime for protests involving vandalism or property destruction that could deter many from supporting the demonstrations across the political spectrum.
Kitchen made a $10 donation to Madalena McNeil on June 28, according to a search warrant affidavit filed in 3rd District Court. The warrant states “The word that was written in the note of the transaction was ‘paint.’ This was the day after the Justice for Bernardo group used a large amount of paint to deface the street in front of the district attorney’s office.”
McNeil has been charged with a first-degree felony for her involvement in at July 9th protest that damaged the office of the District Attorney. The paint was used to cover the street and building, costing $2,000 in damage. Kitchen is one of five people facing criminal mischief or riot charges due to their roles.
The filing shows Kitchen sent $10 to McNeil on June 28th and used the word “Paint” to describe the donation.
Kitchen did not address directly his donation for “paint” before the protest. Instead he stated
“It is a matter of record that I support criminal justice reform. I love Salt Lake City and Utah, and I believe in progressive activism. In this instance I responded to a solicitation on social media for financial support for what I understood would be a peaceful rally for justice. I gave a small contribution to support the cause of justice, but I wasn’t involved in the planning or organization of the event.”
He was specifically asked about why he would pay for “paint” but Kitchen again kept his response general: “My contribution was made to support progressive activism for justice and criminal justice reform. It was not intended to facilitate vandalism and I have no personal knowledge about how my small contribution may have been used.”
This type of theory of criminality raises serous concerns under the First Amendment. Kitchen was contributing money to a protest. “Paint” could have covered expenses for signs rather than graffiti or vandalism. The investigation also creates a chilling effect on free speech and association by holding donors vicariously liable for how their money is used. Few donors would be willing to subject themselves to investigation if they could be blamed for how such protest funds might be used. Given the contribution for political expression, there should not be a criminal investigation absent a direct and clear role in facilitating a crime.
The criminal mischief provision refers the actor not supporting agents:
(2) A person commits criminal mischief if the person:
(a) under circumstances not amounting to arson, damages or destroys property with the intention of defrauding an insurer;
(b) intentionally and unlawfully tampers with the property of another and as a result: (i) recklessly endangers: (A) human life; or (B) human health or safety; or (ii) recklessly causes or threatens a substantial interruption or impairment of any critical infrastructure;
(c) intentionally damages, defaces, or destroys the property of another; or
(d) recklessly or willfully shoots or propels a missile or other object at or against a motor vehicle, bus, airplane, boat, locomotive, train, railway car, or caboose, whether moving or standing.
Putting aside the statutory language, prosecutorial discretion should militate heavily against criminal investigations absent a more direct role in criminal conduct. The contribution to violent protests comes with political ramifications. However, the attempt to hold donors liable vicariously for such actions is inimical to free speech in my view.