DAVIDJ.

GUARNIERI 201 EASr MArN Srnrrr, Sutrs 900

DGUARNIERI@ MMLK.COM
ALSO ADMITTED IN TEXAS
MtrBRAYER LEXTNGToN, Kenrucrv 40507
(8s9) 231-8780 exr. 218
Fax: (859) 231-6518

August 3,2020

Via mail and email

Jonathan. Ri cketts@rickettsl awo ffi ces. corn
Christopher. Bush@rickettslawoffi ces. com
Hon. Jonathan Ricketts
Hon. Christopher Bush
Ricketts Law Offices, PLLC
4055 Shelbyville Road
Louisville, Kentucky 40207

Re: Louisville Metro Council Investigation

Dear Jonathan and Christopher,

In follow-up to our call, we write to continue the dialogue regarding the appearances of
Interim LMPD Chief Robert Schroeder and Chief of Public Services Amy Hess before the
Govemment Oversight and Audit Committee. As you know, on July 14, 2020, that Committee
voted to "conduct an investigation into the Administration, its actions and falleged] inaction
regarding the death of Breonna Taylor, the death of David McAtee, and law enforcement actions
responding to protests in Louisville Metro." In furtherance of this investigation, Chairman
Ackerson wrote to Chief Schroeder and to Chief Hess on July 17,2020, formally requesting their
appearances before the Committee on or before August 5,2020 for 2-4 hours so they could answer
questions and have a discussion with the Committee. In his July 17 letters, Chairman Ackerson
expressly advised each witness that at this time the Committee would refrain from asking either
from "divulging information which would compromise ongoing investigations by the Kentucky
Attorney General and the Federal Bureau of Investigation." Consistent with that understanding,
Chiefs Schroeder and Hess agreed to appear before the Committee on August 3, 2020, and it is
our understanding based on Mr. Rickett's July 30, 2020 emailthat the topics the Committee intends
to inquire about are a) vandalism, and response to it, b) use of tear gas and/or pepper balls, and
how media came to be targeted or came in contact with same, c) placement of snipers on roof tops,
d) placement and use of lighting, and sound equipment, e) warning to and communications with
protestors, f) directives and any confusion relative to use ofhelmets or other equipment by officers,
g) any "stand-down" order(s), directives, guidance given or passed along to government
responders relative to protests, vandalism, etc., and h) how or why law enforcement came to be at
Dino's the night David McAtee was shot.

With the understanding that theirappearance would not require them to divulge
information which could compromise ongoing investigations by the Kentucky Attorney General,

Law Offices: Lexington I Louisville

Govennment Affairs: Fnankfont I Washington, D,C.

mcbrayerf irm.com
 MEBRAYER
Hon. Jonathan Ricketts
Hon. Christopher Bush
August 3,2020

or the FBI, Chiefs Schroeder and Hess agreed to appear and testi$r, and they still plan to do so.
However, on July 30,2020 a lawsuit was filed in the United States District Court for the Western
District of Kentucky styled Scott, et., al., v. Louisville/Jefferson County Metro Government, et. al.,
3:20-CV-535 (the "Scott Action"). The allegations and claims asserted therein concern the same
subject matters Chiefs Schroeder and Hess have been asked to address on August 3. Specifically,
the gravamen of the Complaint in the Scott Action concerns LMPD's response to protests
throughout Louisville beginning on May 28,2020 and continuing to present day, and it specifically
concems: the use of tear gas and pepper balls;l allegations that the media was targeted or came
into contact with such agents;2 the stationing of officers atop buildings;3 the placement and use of
sound equipment;a warnings and communications with protesters fand others];s the use of helmets
and other protective gear;6 purported stand-down orders, directives, guidance given or passed
along to govemment responders;7 and how or why law enforcement came to be at Dino's the night

1
Complaint, paras. 37,39-42,44-47, 50,52,56-7,59-60,64,68,70,74,78-79,81-84, 87,90,98,
101-103, 106,, r22-r25,128-129, 133-135, 148-151, 158-159, 161,180-181, 185-187, 194-196,
216,227,23I-233,239,250 and 273 all allege the use andlor improper use of tear gas andlor
pepper balls.
2
Complaint,para.4g alleges LMPD officers targeted joumalists, and para. 107 alleges an LMPD
officer shot a reporter from the Courier Joumal who was recording the protests, with a pepper ball
onJune 17,2020
3
Complaint,para.226.
a
Complaint, para. 100 addresses the deployment of a sound cannon, and paras. 104, 108 and I37-
138,204 and239 all allege the use of LRAD's by LMPD.
s Complaint, para. 253(D asserts that the questions of law and fact presented by Plaintiffs (who
seek class certification on behalf of all peaceful protesters) include "whether LMPD officers issued
any warning before employing Crowd Control Weaponry;".
6
Complaint, paras. 35, 101, 142,I55,163, 180, 208 and 227 all concern the use of helmets or
other riot/protective gear by LMPD officers during their encounters with protesters fand others].
7 Complaint para 94 alleges that "[i]n the face of mounting public pressure, on June 15, 2020,
,
Defendant Fischer apologized for the use of tear gas against protesters, and stated that, as a result,
he would be instituting needed reforms to the LMPD's use of force practices. But the very next
day, in response to criticism from the LMPD, Defendant Fischer walked back his promise, stating
that he had not instructed and would not instruct officers to "stand down" and that Defendant
Schroeder was responsible for determining the appropriate course of action."

2
Hon. Jonathan Ricketts t MEBRAYER l
Hon. Christopher Bush
August 3,2020

David McAtee was shot.8 The Plaintiffs in the Scott Action are well aware of the Committee
investigation and in fact, specifically mention it in their Complaint.e

Because of the significant, if not complete, overlap between this now pending litigation
and Monday's scheduled agenda, much, if not the entirety, of Monday's Committee hearing will
have to take place in executive session per the mandate of the Kentucky General Assembly.
Specifically, KRS 67C.103(14)(b), which is expressly referenced in the Committee's OR-004-20,
requires that "ft]estimony subject to KRS 61 .8 1 0 q@!! only be taken in executive session." As you
know, KRS 61.810(c) exempts discussions of proposed or pending litigation from open meetings.

On July 31,2020, we contacted the two of you to ensure that the Committee was aware of
the Scott suit, and to inquire whether it affects whether the Committee plans to proceed as
scheduled, or believes a continuance is in order. While Mr. Bush had not had an opportunity to
confer with the Committee andlor its leadership to determine whether this newly filed lawsuit
alters its planned course of action, Mr. Bush did indicate a preliminary assessment that this
development would unlikely change the timing of things. Given the Committee's expressed
demand for "a transparent, public process" as stated in the eighth recital in OR-004 -20, it seems
your client should reconsider proceeding forward on Monday.

The Administration is committed to participating in the Committee's investigation, as it

shares the same goals of bringing to light the truth of these events not only so that the community
can get answers to the questions it has surrounding them, but also so that any resulting policy
changes can be made in an effective, substantive way. However, just as the Committee already
recognized the need to balance the integrity of the AG and FBI investigations with its audit and
oversight authority, we ask that the Committee also recognize the need to balance the important
interests the General Assembly protected when enacting KRS 61.810 (which is carried over into
its enactment of KRS 67C.103) with the mutual goals and objectives our clients have for an open,
transparent process. Accordingly, rather than proceed on Monday under the unsatisfactory
constraints of executive session, we encourage the Committee to reschedule the appearances of
Chiefs Schroeder and Hess to a time when they can reasonably and prudently testifu about the
above referenced matters in an open, rather than closed setting.

KRS 67C.103(14)(b) permits an agency or witness to waive the requirement that the
testimony be taken in executive session. If we proceed forward on Monday, neither witness can
reasonably be expected to do so, and will not do so given: (1) that the Scott lawsuit was just filed
two business days ago; (2) Chief Schroeder is named as an individual defendant and has not had

8
Complaint,para.6g alleges that on the evening of May 3I,2020, "two and ahalf miles from the
site of the protests downtown, LMPD officers and the National Guard shot and killed David
McAtee while attempting to disperse a small social gathering in the parking lot of Mr. McAtee's
restaurant," which is across the street from Dino's.
e
Complaint,paral20.
3
Hon. Jonathan Ricketts t MEBRAYER
Hon. Christopher Bush
August 3,2020

an opportunity to confer with personal counsel, and most significantly, (3) the lawsuit not only
seeks compensatory and punitive damages, but it also seeks injunctive relief that could result in
limitations on LMPD's ability to effectively and lawfully manage future protests in a way that
recognizes the First Amendment rights associated with peaceful protests without impairing
LMPD's ability to protect and serve, by effectively policing those whose objective is not to
peacefully protest, but to vandalize or destroy property, loot businesses or otherwise make
mayhem.

While we have shared the essential components of this letter in our call of this morning,
we look forward to hearing from you once you have had a chance to confer with your client about
whether it plans to proceed Monday in executive session, or prefers to delay the hearing for a
sufficient amount of time to allow for the witnesses to testiff in an open meeting without adverse
impact on pending litigation.

-\2-a A
Sincerely

DAVID J. GUARNIERI
STEPHEN G. AMATO
Attorneys For Louisville Metro Government

J C. KLAUSING
L, Kl .-
Attorney for LMPD Chief Schroeder
a*;