Judge Leroy Kirby ruled Thursday that there is no probable cause for the attempted first-degree kidnapping charges against three organizers arrested for a protest outside of Aurora Police headquarters in July.
Joel Northam, Lillian House and Whitney “Eliza” Lucero, of the Denver chapter of the Party for Socialism and Liberation (PSL), were arrested in September for a protest demanding the firing of officers involved in Elijah McClain’s death.
The protest, held on July 3 into July 4, drew hundreds of people to the APD District 1 precinct, resulting in 18 officers staying inside for several hours. The three organizers were charged with several misdemeanors and three felonies each, including attempted first-degree kidnapping and inciting a riot.
In his ruling, Kirby called the attempted kidnapping charges “a bridge too far,” disagreeing with Prosecutor Timothy Twining’s depiction that the officers were “imprisoned” in the police station.
“All of the officers had freedom of movement in the police station and the roof and outside in the fenced area,” Kirby said. “They also had access to their weapons, an armory ... numerous patrol vehicles, approximately 40-60 vehicles were outside.”
During the protest, some of the protesters erected barriers around the police station and secured some of the building’s doors with ropes and U-locks. However, at least one of the officers left the station during the protest without any issue.
In the preliminary hearing, Aurora Police Detective Andrew Silberman, the lead investigator for the protest, said the officers were under orders not to engage with the protestors.
“They chose not to (leave),” Kirby said. “They were ordered not to go outside, they were ordered not to engage with protestors. … Imprisonment is against their will. The court cannot find, based upon the evidence presented, that these officers were confined against their will.”
Kirby also said there was no evidence that Northam, House and Lucero had been acting violently or put up any of the barriers. None of the officers questioned during the preliminary hearing said they witnessed any of the three trying to block the police station doors.
Based on video evidence gathered from the protest, Kirby described the PSL protestors as “bored” and “peaceful,” handing out pizza and waiting for someone to talk to them. When ordered to disperse, Kirby said they complied.
“There was violent action, but not that the court can connect to these defendants. These defendants cannot be held responsible for all the actions of the people present,” Kirby said. “Even if this court found there was some sort of attempted imprisonment, it wouldn’t have been the act of PSL.”
During the preliminary hearing on March 9, Twining used photos, videos and social media posts to argue that the three organizers intended to occupy the police station, directing protestors to trap officers inside and use scavenged materials to barricade the building and surrounding streets.
“While this happened … were those officers able to respond to or perform their duties as police officers?” Twining asked Silberman, to which he replied they were not.
When asked by Kirby why he thought the officers were trapped, Silberman said it was “based on training experience of what dangers these barricades could have around the police precinct, and just as a generalization based off of … how the officers felt inside.”
Defense attorneys casted doubt on Silberman’s credibility, painting him as an unprepared investigator who hadn’t yet interviewed witnesses save for one police officer and didn’t know some basic details about pieces of evidence such as times when photos and videos from the evening were taken.
Lucero’s attorney, Adam Frank, claimed the order not to confront protesters was what kept officers inside, and that it was given to avoid a repeat of negative media coverage the police department received for their tactics dispersing a June march.
“This isn’t a whole bunch of officers cowering in fear inside. What is going in is they were being told not to leave, because Aurora doesn’t want the optics of them repressing a peaceful political protest trying to find justice for Elijah McClain,” Frank said on March 9.
McClain, a 23-year-old Black man, was killed in Aurora after being placed in a chokehold by police and sedated by fire rescue paramedics on Aug. 24, 2019. McClain was walking home from a convenience store at the time and had committed no crime.
PSL has held numerous protests in Aurora and Denver since McClain’s death, demanding action be taken against the officers and paramedics involved.
Kirby said even when he looked at the case prior to hearing testimony, he didn’t find probable cause for the attempted first-degree kidnapping charges.
“The court may be wrong, and if the court’s wrong, the good thing is the District Attorney has the ability to appeal,” Kirby said. “If the court had ruled a different way, these defendants would not have the ability to appeal.”
The remaining felony charges for inciting a riot will move forward to trial. The next court date is set for May 11 at 8:30 a.m.
House and Northam also face charges in Arapahoe County related to their participation in a June march for McClain onto Interstate 225. The charges include riot incitement and obstructing a highway. The arraignments in those cases are scheduled for April.
Denver Gazette reporter Julia Cardi also contributed to this report.