Utah Legislator Under Investigation For Allegedly Paying For Paint Used In Protest

D4-Derek-KitchenThere 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.

19 thoughts on “Utah Legislator Under Investigation For Allegedly Paying For Paint Used In Protest”

  1. Just to point out the infinite level of hypocrisy of those (including JT) blessing this politician’s actions: state for the record that you’re OK with Trump donating money to a group planning a peaceful Right Wing protest, that later committed criminal vandalism. Or with Grand Cyclops KKK member Robert Byrd donating money to the KKK. Oh, wait, scratch that last item; it already happened, and Jesus Obama blessed Robert Byrd at Byrd’s memorial when he passed.

    I searched for two hours and found not one Google link wherein Byrd outright condemned the KKK. He regretted JOINING it, but apparently never condemned it.

  2. How long will “swift justice” take in this slam-dunk case?



    Someone who encourages a person to commit a felony but may not be a part of the commission of the crime or present at the time the crime is committed.

    – The Law Dictionary


    A person who aids, abets, or encourages another to commit a crime but who is not present at the scene. An accessory before the fact, like an accomplice, may be held criminally liable to the same extent as the principal. Many jurisdictions refer to an accessory before the fact as an accomplice.

    – Cornell Law School

    Beer For My Horses
    Toby Keith

    Well a man come on the 6 o’clock news
    Said somebody’s been shot, somebody’s been abused
    Somebody blew up a building, somebody stole a car
    Somebody got away, somebody didn’t get too far yeah
    They didn’t get too far

    Grandpappy told my pappy, back in my day, son
    A man had to answer for the wicked that he done
    Take all the rope in Texas find a tall oak tree,
    Round up all them bad boys hang them high in the street
    For all the people to see

    We got too many gangsters doing dirty deeds
    Too much corruption, and crime in the streets
    It’s time the long arm of the law put a few more in the ground
    Send ’em all to their maker and he’ll settle ’em down
    You can bet he’ll set ’em down

    ‘Cause justice is the one thing you should always find
    You got to saddle up your boys, you got to draw a hard line
    When the gun smoke settles we’ll sing a victory tune
    We’ll all meet back at the local saloon
    And we’ll raise up our glasses against evil forces singing
    Whiskey for my men, beer for my horses

  3. 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.

    Oh, the horror. 😱 Investigations, with the potential to prosecute those wittingly or unwittingly supporting criminal activity might force anyone favoring legal activism to ensure their financial support will not be used for illegal activities.

    Following your logic, you would not favor investigating those making contributions to charitable organizations that are fronts for say, child sex trafficking.

    It’s already a tragedy that Americans support the political class without any concern that what they do is lawful or even constitutional. Now you would support ignorance of the political class returning the favor. What could possibly go wrong with that?

  4. Sentence him (and other guilty people) to scrubbing the graffiti off the walls and sidewalks. A little bit of honest work might benefit a politician who doesn’t know the value of a dollar or hard work.

    1. Witness
      Book by Whittaker Chambers

      This book is the primer for “the value of hard work,” freedom, free enterprise and anti-communism (anti-liberalism, anti-progressiveism, anti-socialism, anti-democratism, anti-RINOism).

  5. JT….vandalism is outside 1st Amendment protections. There are plenty of ways for people to communicate with leaders.

    How about working through open channels to elected leaders?? This whole 1930s socialist-playbook of street-demonstrations is steeped in alienation, distrust, and bad-faith. I’m getting sick of it.

    People need to learn the basics of thinking, speaking and listening in the political sphere. It’s much more persuasive than street demonstrations.

  6. The guy is an accessory to a crime. Vandalism of painting buildings may be the lightest level of vandalism, considering the breaking of windows and arson, but it is still vandalism. The guy is stupid enough to put paint on a form and he contributed to vandalism. However the charges rate from defacing property with paint up to arson and looting, he should be charged at the low end of the scale as an accessory to the vandalism of defacing buildings. A crime is a crime is a crime.

  7. This DEM rep is a left wing radical supporting such defacing/vandalism and etc. he should be prosecuted. He has a Big Problem he is in Utah and many people in Utah do not support such actions and etc.

  8. No doubt that this scum of a Legislator wanted to support a person or group that was involved in criminal activity but I have a hard time making the leap to criminalize his actions.
    He is to be condemned for his activity but not prosecuted. Not every bad or undesirable act should be illegal.

    This is a civil liberties violation. Absent direct evidence that he incited this conduct and provided the materials specifically to do so, he needs to be left alone.

  9. He does not say in his remarks that he knows McNeil. The way I read them, he comes off as a typical, self righteous social justice douche. He’s so committed to their cause that he’s willing to donate a whopping $10 to an online fundraising account – not the person responsible for the account.

    But McNeil, the creator of the online account, describes him as a “friend” who is sending her money (not the cause).

    “Good to know that police resources are being spent to investigate the very serious crime of my friend sending me $10.”


    If they are friends or acquaintances, that makes his professed ignorance about how the paint would be used less credible. He may be telling the truth, but now that we know they are friends it is easier to be skeptical of his claim.

    All that said, the DA is clearing overcharging.

  10. If the guy had half a brain, he would say he expected the paint to be used for signs carried by protestors. C’mon, man.

  11. Assuming the person did it, then nail him for it. I am hoping they are using the “broken windows” strategy here.

  12. It all depends on what he knew, or had reason to know, as to how the paint was to be used. Aiding and abetting a crime is just as bad as the crime itself. If Soros knows that his millions will be used to support and encourage looting and assault, he should be prosecuted too. Just a matter of evidence. Not discretion.

  13. 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.

    A felony.

    Recall the young man in Berkeley killed last June was apparently murdered by a man who had been in and out of court since 1982 on one charge or another, but had never served any time even for his felony convictions. Here’s another example of our problem as a society. Our courts do nothing well and the people working in them are a**wipes.

  14. I don’t know if this is a legal term or not, but this is ‘petty’. It weakens actual prosecutions for actual material support for violent demonstrations and vandalism by reducing the prosecutor to a common bully.

    1. It’s perfectly legitimate to prosecute both of them. However, the statute is badly calibrated and the prosecutor abusing his discretion in charging the primary defendant with a felony.

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