[JK: This has been a particularly challenging post to write because there are so many errors and misrepresentations in the twenty-eight pages of the Attorney General’s report. After days of working on this, I realized that rather than drag the reader down the rabbit hole that is this report, it would make more sense to select representative items rather than write an opus.

I encourage followers of this blog to read the original report themselves:

707392395-new-york-attorney-general-saratoga-springs-police-report-1Download

I would also encourage people to read the letter from Meg Kelly’s attorney, Karl Sleight, to the report’s authors and their email exchange, which are included at the end of this post. I credit Sleight for being a considerably more skilled writer than myself, and clearly, he knows more about the law than this blogger.]

The Attorney General’s Report on the Saratoga Springs Police Department’s Response to Protests in 2021 has been released. It is dated February 20,2024.

The report is riddled with inaccurate information and misrepresentations, utterly failing to support its basic scathing conclusion.

Sadly, this report was a lost opportunity to have honestly and objectively explored the issues that have plagued the city since Black Lives Matter became active here. The Attorney General could have provided advice on how best to address the blocking of city streets and the disruption of the deliberations of the City Council. Instead, they have cherry-picked from the information gathered while accepting at face value the testimony of BLM activists to throw together a document that pillories city officials and the Saratoga Springs Police Department.

Glaringly missing from the report is, with one minor exception, any acknowledgment that the city had struggled for four years to address the illegal activities of the local BLM, including repeated demonstrations that occurred without permits and illegally blocked city intersections for hours and the repeated disruption of City Council meetings leading to their abrupt adjournments and the inability of the Council to conduct city business.

Unsubstantiated Allegation That The Police Department’s Policy Was To Suppress BLM’s First Amendment Rights

The central theme of this report is their allegation that the city’s focus was to ruthlessly suppress the First Amendment rights of BLM.

“The Attorney General concludes that, in 2021, Dalton, Kelly, and Crooks implemented an unconstitutional official policy of retaliating against BLM protesters based on their speech.”

Executive Summary Attorney General Report, p.1

This is a truly outrageous statement that is simply not supported by the facts put forward in the AG report. If this were an “official policy,” where is the citation for this “policy” in the AG’s document? Where is the City Council resolution? Where is there a Charter reference? Where is there any evidence in the Council’s minutes? Every “official policy” I know of is stated somewhere in a written document. The creators of this AG report claim they reviewed “approximately (JK:?!) 276,809 documents” (p.1), yet they failed to cite one document that supports this. No such document is cited because it doesn’t exist. This hyperbolic assertion calls into question the very integrity of the report.

There are court cases that have broadened the meaning of “official policy.” Without going too far into the weeds, the AG cites a legal case but does not explain how the standard established in that case applied to the events described in the report. I submit that they exploited the term “official policy” to add gravitas to their allegations.

Their central problem, though, remains that they failed to provide credible proof that any elected officials were motivated by a desire to silence BLM’s freedom of speech rather than address how to manage the disruptions in our streets and in city hall.

Amazingly, the report fails to even consider the possibility that the actions of the SSPD might have been to address the repeated illegal blocking of city streets and the routine disruption of the City Council meetings.

BLM-Innocent Victims??

The AG exploits the situation of a city struggling with an unprecedented wave of provocative demonstrations, if not always getting it quite right, to falsely accuse officials of deliberately initiating a campaign to deny BLM their constitutional rights.

Buried in the report and absent from media coverage is the fact that BLM had been allowed on seven occasions to demonstrate without permits and illegally block city streets for hours while, as the report concedes, the police protected the demonstrators from traffic without interference(p.2, p6).

The report emphasizes the fact that during these demonstrations, BLM was not cited for hurting anyone or for any destruction of property. It fails to acknowledge how volatile and fraught the demonstrations were. Most critically, it fails to acknowledge the important role of the Saratoga Springs Police Department in effectively protecting the members of BLM along with the public. The potential for violence that the police had to address, after all, was not just from the BLM people but also from opponents of BLM.

Consider this picture of a BLM activist in body armor and carrying a club at one of the demonstrations in Congress Park:

or this:

[Lexis Figuereo is separated from a Schenectady minister by police and sheriffs as Figuereo curses and taunts the minister. Without the police intervention, this would probably have erupted in violence.]

When the report does touch on BLM behavior, it is either dismissive of any possible danger posed by the actions of the demonstrators, calling their actions “raucous” but “peaceful”, or misrepresenting the intent of their actions. In one example, the narrative in the AG report alleges that the arrests made during the July 14 demonstration were unfairly made because the demonstrators “dispersed” following the warnings issued by the police that their occupation of Broadway at its intersection with Church Street was unlawful. The disingenuous use of the term “disperse” suggests that they honored the order and removed themselves from the street. What the demonstrators actually did, which I personally witnessed, was simply move out of the intersection and head south, remaining in the street, continuing to taunt the police, and continuing to block traffic.

It is important to note also that during this period of BLM actions, then-Mayor Meg Kelly felt sufficiently threatened that she wore a bulletproof vest. Then-Public Safety Commissioner Robin Dalton had to move her family out of their home to another location for a period of time because of threats she received. Citizens were expressing discomfort at attending City Council meetings where BLM was routinely shouting down speakers with whom they disagreed and aggressively approaching City Council members and grabbing microphones.

There is little doubt that the frustration of our city government and the public, in general, increased as the costs and dislocations of dealing with BLM’s disruptions went on.

The Free Speech Issue

The report relies on remarks from a press conference involving then-Public Safety Commissioner Robin Dalton and Lieutenant John Catone to make the case that the police acted to suppress the BLM people’s First Amendment rights. A careful reading of the report provides not one other example of statements or other materials from any police officer or public official that support this allegation.

Catone told attendees at a press conference that he planned to:

“…pull out every single connection my family has made over the last 130 years, and…stop your narrative.

You’re either with us or you’re not. And if you’re not, then you’re part of the problem.”

Lieutenant John Catone, June 28, 2021

How, then, do you explain that the AG never subpoenaed or interviewed Catone?

In all likelihood, they did not want to muddy their narrative by having to include any qualifying statements from Catone. Again, an interview with Catone would have been essential if this were a fair, objective, and vigorous investigation into the events.

Confusing Free Speech With Illegal Action

The question the AG’s investigation never addresses is whether blocking streets is a protected form of free speech. Nor do they address whether disrupting City Council meetings is a protected form of free speech. The AG simply assumes that any interference by the city to clear its streets or to take action against individuals disrupting its Council meetings is a form of suppression of free speech. There is no acknowledgment that for many who observed the continued disruptions of City Council meetings and the taunting and interruptions of speakers with whom BLM disagreed, it appeared that the right of free speech was exclusively theirs.

The Document Contains Information Which Is Simply Not True

The AG’s report contains errors of fact, which call into question the credibility of the report and the thoroughness of those who wrote it.

One of the glaring errors occurs on page 2 of the report in the description of an encounter between BLM and law enforcement on July 30, 2020.

The logistics for managing this street demonstration were carried out by a joint operation that included the officers of the Saratoga Springs Police Department, the New York State Police, and the Saratoga County Sheriff’s Department.   As the AG report purports to have investigated the alleged abuse of demonstrators at this event, it would seem axiomatic to get the take from the State Police and the Sheriff’s Department regarding what happened and what they thought about the Saratoga Springs Police Department’s performance.  Yet the investigators never bothered to contact either of these other law enforcement agencies equally involved in the response to BLM.  

If they had, for one thing, the authors of the report might not have erroneously reported that the city police were in military riot gear, fired pepper balls at the demonstrators and that the armored vehicle that was deployed at a demonstration belonged to the city.  (This error was reported to the AG by Public Safety Commissioner Tim Coll, and the AG was forced to correct the record).

I submit that the reason the AG did not interview the Sheriff’s department or the State Police was:

1. The report would have been forced to acknowledge that according to these other law enforcement agencies, the reason for the arrests was not to suppress BLM’s freedom of speech but instead to manage the illegal occupation of the city’s street.
2. These agencies might have spoken favorably regarding the performance of the Saratoga Springs Police.
3. To acknowledge that there were law enforcement agencies outside the control of Kelly and Dalton equally involved in this operation would have undermined much of the AG narrative.

The Shoddy and Untrue Attack On Meg Kelly

The AG report also includes flagrantly false statements regarding former Mayor Meg Kelly.

It accuses her of having instructed the Police Chief to arrest people. The report offers no citation or documentation to back up this allegation, which is patently false. Meg Kelly never directed the Chief to arrest anyone, and if the AG has proof of such an action, they should produce it.

In a particularly disturbing aspect of the AG report, Meg Kelly is accused of failing to “adequately” respond to the AG’s subpoena.

I am including the response to the AG by her attorney, Karl Sleight, at the end of this post.

An email exchange between attorney Sleight and Rick Sawyer from the AG’s office is also included at the end of this post. As these documents show, a meeting for Kelly’s deposition was canceled by Sawyer due to health issues. Further efforts were hampered by scheduling conflicts.

The situation became more problematic when Mr. Figuereo initiated a federal lawsuit against the city and a laundry list of people, Ms. Kelly among them.

Attorney Sleight responded to Sawyer, pointing out the legal difficulties represented by dealing with both the AG investigation and the federal suit. Rather than acknowledging this thorny problem and addressing this complication, Sawyer responded imperiously, “This is not a request. (to appear for the deposition)”

If Sawyer seriously wanted to depose Kelly, he could have easily entered a motion in State court to compel the interview. Rather than engage Sleight as courtesy and justice would dictate, he used the issue in an attempt to spin the situation in the report to make it appear that Kelly was uncooperative.

Fundamental Questions Ignored

The AG report could have done a tremendous service if her office had addressed the fundamental questions vexing our city:

1. What is the appropriate response to people blocking public thoroughfares and demonstrating without permits required by the municipality?
2. How should the city deal with people who refuse to abide by the Council meeting rules and interfere with the transaction of city business?

The corollary of these two questions is to what extent does the curtailing of this behavior constitute an infringement of the First Amendment?

Nowhere in this report does the AG address these central issues. Instead, every effort, however flawed, by our police and our elected officials to address these issues is deemed to be motivated solely by a desire to limit the freedom of speech of BLM.

A Poorly Researched and Poorly Crafted Report

The thrust of this report was that Saratoga Springs officials and members of the city’s Police Department set out to deliberately suppress the free speech of BLM. This report utterly fails to substantiate this claim. Other than Catone’s remarks, there is nothing in the report that remotely documents any statements to justify this allegation. I invite the readers of this blog to read the report for themselves.

Unfortunately, in the opinion of many, particularly attorneys I have discussed this report with, there is suspicion that this report had less to do with a review of city procedures (most of the recommendations in the report have already been implemented, but the authors of the report didn’t bother to research that either) but more to do with creating a document that could help the pending federal lawsuit against the city by BLM members. Lex Figuereo has already boasted to the press that he is looking forward to the money he and his family will get from the city. The taxpayer dollars that paid for this report from Letitia James’ office have saved BLM some serious change.

I find it interesting that Attorney General Letitia James, who is not afraid of a microphone, has apparently decided to keep a low profile in this matter.

Letter From Meg Kelly’s Attorney Karl Sleight

Emails From Sleight To Sawyer Documenting Subpoena Compliance