She was accused of hitting Idaho State Police lieutenant. Why did judge call off trial?

BOISE (Idaho Statesman) — In the midst of last summer’s tension after the Supreme Court overturned 50 years of abortion law, a 34-year-old Boise woman was arrested on the steps of the Idaho Capitol while protesting an anti-abortion rights celebration.

Police said Avalon Hardy repeatedly shoved a law enforcement officer, but after a video of the June 28 incident was played in court and the Idaho State Police trooper made contradictory statements on the stand, the judge began to doubt the charges.

The YouTube video, posted by a member of the far-right Idaho Liberty Dogs group, showed a man in a crisp blue jacket and cropped blond hair coming between Hardy and a woman who were yelling at each other. The man appeared to put his hand out to hold Hardy back as she shouted expletives at him and the woman. Friends grabbed Hardy’s arms as the man shouted for someone to “get her out of here.” As the man turned his back, Hardy appeared to attempt to leave, and bumped her shoulder against the man’s back in the tightly packed crowd.

The video did not appear to show what was detailed in the police report: that Hardy allegedly shoved Idaho State Police Lt. Michael Kish, the man in the blue blazer, “repeatedly with her hands” and then “continued to shove him with her hands and chest.”

Less than two hours after opening statements in Hardy’s trial on Jan. 27, Magistrate Judge Michael Dean paused proceedings to rewatch the video in his chambers at the Ada County Courthouse. When he re-emerged, it was with a verdict: The touching appeared to be more “inadvertent brush” than intentional battery, Dean said.

“I simply cannot find that there’s sufficient information to go to the jury,” Dean said.

The jurors were dismissed; Hardy was acquitted.

The decision concluded an unusual case.

It is “extremely rare” for a judge to acquit someone on insufficient evidence during a jury trial, according to Sam Newton, a University of Idaho professor who specializes in criminal law.

“That means the judge believes no jury could convict them,” Newton told the Idaho Statesman in a phone interview. “Usually the state has something, at least some testimony, that supports their verdict.”

TENSIONS RISE AT ANTI-ABORTION RIGHTS EVENT

The rally, complete with a gospel band, was meant to “celebrate a new era in America” after the Supreme Court ruled in Dobbs v. Jackson that abortion was not a constitutional right, overturning the famous Roe v. Wade decision from 1973.

But the guitar strums could not hide the chants coming from the other side of the steps, where abortion-rights protesters with painted bodies and handmade signs outnumbered the supporters of the decision.

“Not your body, not your choice,” the protesters shouted. “Two-four-six-eight, separate the church and state.”

Also in attendance were members of the Idaho Liberty Dogs and the Proud Boys, a far-right extremist group, many of them holding firearms, and about 20 Idaho State Police officers keeping an eye on the crowd.

Hardy, a mother of six, said she went because she was upset at the thought of her children growing up without abortion rights.

“I feared for my girls,” Hardy told the Statesman in an interview at her house. “I have lots of girls in my house.”

People on both sides of the issue grew more agitated as the evening wore on. When the main speaker, Stanton Healthcare CEO Brandi Swindell, finally took the podium to address the crowd, her words were angry. She told protesters they “couldn’t stop” the movement. She used phrases like “baby killers,” “forces of evil,” and “slaves of sin” when speaking about abortion-rights supporters.

Hardy said she initially stayed to the side, handing out water bottles to fellow protesters, but got “more and more angry” as the feeling grew in her that police were ignoring bad behavior from the anti-abortion rights side. The last straw came when Hardy said she saw a protester get hit by someone wearing brass knuckles.

“The girl that had gotten hit pointed out the person who had hit her,” Hardy said. ”And in that moment, another lady had called me a fat bitch. So that ticked me off even more and kind of egged on an argument between the two of us. She continued to tell me that she was going to beat me and called me a beast and told me I was disgusting.”

Kish, who heads both Capitol security and Gov. Brad Little’s security detail, stood between them, keeping the two women apart as Hardy yelled obscenities at both the other woman and Kish.

“Kish never even acknowledged that she had started this argument between us,” Hardy said, tearing up. “It was automatically on me.”

When Kish turned his back to Hardy, she said she tried to move past him. As she did, she bumped into him, her shoulder making contact with his back. Hardy then rejoined her mother on the sidelines.

After about 10 minutes, she said, police officers appeared in front of her and placed her hands behind her back. Hardy said that despite her repeated questions, no one told her why she was being arrested until she was in the back of a police vehicle.

“I think the terrifying part was that nobody could answer what I had done,” Hardy said. “I never touched anybody. I never raised my hand to law enforcement. I was heated in the moment, but I’m not dumb. I know what’s at stake.”

As she sat in jail, she said she thought about what life might be like if she ended up behind bars. She thought about her children’s lives. Hardy has felony convictions from 2008 for forgery and has probation violations, and she was afraid of how that might affect a potential sentencing.

“This is a time where I need to be there and be their mom,” Hardy said.

When she called from jail, Hardy said she told her 6-year-old daughter that she was on vacation.

CHARGE REDUCED FROM FELONY TO MISDEMEANOR

Hardy was initially charged with felony battery of a law enforcement officer, according to court records.

Her attorney, Ryan Black, played videos for prosecutors to show that Kish was not in uniform and that Hardy could not have been expected to know he was in law enforcement.

“He didn’t identify himself in the video,” Black told the Statesman by phone. “He’s just in khakis and a blue sport coat.”

On Aug. 19, prosecutors dropped the felony charge, which would have come with a five-year maximum sentence, to a misdemeanor, which no longer alleged that the battery was on a law enforcement officer.

A prosecutor offered Hardy a plea deal at that point, but she refused.

“Even if I pled to a simple battery with no consequences, it’s still in my record, and it’s not a good look,” Hardy said.

Hardy said she made eight court appearances.

The Ada County Prosecutor’s Office declined the Statesman’s request to speak to the prosecutor on the case.

DISCREPANCIES BETWEEN WITNESS AND STATEMENT

The case showed an unusual lack of evidence and documentation from the state, according to the judge.

The state’s only substantial pieces of evidence were a one-page report written by Idaho State Police Sgt. Troy DeBie, who was not within close proximity at the time of the altercation, and a video of the event pulled from social media. Kish, the one witness called, disagreed with the report in court.

Black read from the police statement that alleged Hardy had shoved Kish repeatedly with her hands. The attorney asked Kish if he remembered that happening.

“I don’t remember that happening, no,” Kish said.

Kish instead said the battery actually consisted of a “bump” from Hardy’s chest when his back was turned, and said she “swatted” or “slapped” his hand. It was the first time Hardy or Black had heard these allegations.

The judge noted the discrepancies among the police statement, the video and Kish’s testimony. He did not consider Kish’s claim of the hand slap because the state had not included that in its charge.

“That’s not the charge here,” Dean said. “The testimony entirely from the state was the allegation of the pushing, the chest bumping.”

The Statesman requested an interview with Kish, and Idaho State Police spokesperson Aaron Snell arranged one, but then canceled it, saying Kish was no longer available. Snell answered questions from the Statesman by email regarding why Kish did not write a report after the incident.

“While not always required, victim statements are usually obtained,” Snell said. “However, obtaining victim statements from law enforcement is not a normal practice. In hindsight, we recognize more information benefits the prosecutor, and supplemental reports might have helped in this case.”

Gary Raney, a former Ada County sheriff who now consults for other law enforcement agencies, said it would have been unusual for law enforcement not to obtain the statement of an officer if the officer was supposedly a victim.

“It just sounds like it was not very thorough police work to not go to the victim of the crime and to get a statement and to not clarify exactly what happened,” Raney told the Statesman by phone. “Because, if nothing else, that person is a witness.”

When the Idaho Statesman sent questions for DeBie to ISP regarding DeBie’s statement, Snell replied that “the statement by Sgt. DeBie stands” and added that “the video provided in court did not show context to the situation as events occurred before and after the clip.”

Snell said police video was taken of the incident; that video was not produced in court.

As to why Kish brought up new allegations while on the stand, Snell said Kish’s “intent was to provide information from his direct point of view about a chaotic situation, not to seek additional charges.”

JUDGE ACQUITS OVER LACK OF EVIDENCE

After reviewing the video and the state’s complaint, the judge decided to call off the jury trial and acquit Hardy based on the Idaho Supreme Court’s Criminal Rule 29, which allows someone to be acquitted if a judge determines the evidence to be insufficient.

The judge noted in court while issuing his acquittal that Kish’s testimony contradicted the state’s complaint and the ISP trooper’s written statement.

“The report issued by a different law enforcement officer, which quite frankly, the witness today testified portions of it did not, in fact, happen, or claimed, ‘Well, that may have been his perspective, but I don’t recall that,’ ” Dean said.

Dean pointed out that the state needed to prove that Hardy intentionally and unlawfully struck or touched Kish. Kish alleged Hardy intentionally bumped him while his back was turned. The video showed that “to the extent there was any touching, this appears to be purely incidental, unintentional, as she’s trying to get around him,” the judge said.

“It’s always somewhat difficult for someone to ascertain what’s taking place when their back is turned,” Dean said.

KISH KEPT SAYING HAND IN THE VIDEO WAS NOT HIS

One of the strangest aspects of the court proceedings occurred when Hardy’s attorney tried to establish that Kish had also touched Hardy. Kish repeatedly denied that a hand seen in the video touching Hardy’s chest area was his.

“What I do see is a police officer who’s committed something like perjury in saying that’s not his hand a number of times when it is very clearly his hand,” Black told the judge in court.

After the judge watched the video repeatedly, he agreed that it was Kish’s hand.

“It is entirely clear to the court that it was the witness’s hand,” Dean said. “I had no question about that when I watched it.”

PROTESTERS ALLEGE RIGHTS VIOLATION

There were at least three other 2022 cases in which those protesting over abortion rights were arrested in Boise:

• Kimra Luna was charged with resisting or obstructing officers and a noise prohibition infraction, according to previous Idaho Statesman reporting. Both charges were dismissed by the city’s prosecutor.
• Kristi Lynn Jordan was accused of felony battery on a law enforcement officer and misdemeanor resisting arrest, according to court records. She was also cited for a crossing violation. The battery charge was dismissed after a motion by the prosecutor. A trial was scheduled in January for the resisting charge, but was delayed after the defense said prosecutors had not complied with an evidence discovery request.
• Jessica Kumple was arrested and charged with disturbing the peace at the same event Hardy attended. Her case is scheduled to go to trial later this year, according to court records.

Luna and Jordan have lodged claims against the city, saying the Boise Police Department violated their right to protest.

“People shouldn’t be being arrested in Boise or anywhere else for exercising their constitutional rights,” said Ritchie Eppink, attorney at Wrest Collective, the law firm representing them.

Hardy said she has not decided whether she will seek legal action against the Idaho State Police.

Newton, the University of Idaho law professor, said there has been a push to criminalize the behavior of protesters since 2020. He pointed to a rise in anti-protest legislation. Republican lawmakers in 34 states introduced 81 anti-protest bills in 2021, which was twice as high as any other year, according to The New York Times.

“This is a movement that happened post-George Floyd,” Newton said, referring to nationwide protests after Floyd, a black man, was killed by a white Minneapolis police officer. “People see pictures of violent protests and associate protesters with that.”

THE TRIAL COURT TRANSCRIPT: AN EXCERPT

Idaho State Police Lt. Michael Kish’s hand became a point of contention during Avalon Hardy’s trial.

After viewing a video, Kish repeatedly denied on the witness stand that the hand near Hardy’s chest in the first few seconds of the video belonged to him.

The following is a transcript of the two trial exchanges in which Ryan Black, Hardy’s defense attorney, tried fruitlessly to get Kish to say the hand was his.

Black: It looks like your hand here is pressed up against her breasts.

Kish: I would say no, sir.

Black: It looks like you are making contact with her in this photo.

Kish: No, sir.

Black: So there’s no contact?

Kish: It’s not physically possible, I don’t think, for my arm to bend that way, sir.

Black: So is this here your hand?

Kish: No, sir. My arm is right here. I’d have to be able to bend my arm around this person. I’m not pushing into her here. You don’t see my arm at all. So I would say that’s not my hand.

Black: So to confirm, this right here, this thing I’m pointing at is not your hand?

Kish: I can’t say that that is. No.

A few minutes later:

Black: I’m going to draw your attention to this right here. That’s your hand, right?

Kish: I don’t think it is. No, sir.

Black: That’s somebody else’s hand?

Kish: I think it’s a stretch.

Black: A stretch?

Kish: Yes.

Black: Of what?

Kish: I would say that because my arm comes down like this. And how is my arm going to reach around to come all the way across the front of her body when her body isn’t depressing in at all? So I would say no, it isn’t my hand. I don’t mean to be argumentative, counsel. I’m sorry, I just don’t think that’s my hand.