OF PROTEST AND PROPERTY: AN ESSAY IN PURSUIT OF

Copyright

2021

by

H.

Timothy Lovelace,

Jr.

Vol.

116

Northwestern University

Law

Review

OF

PROTEST

AND PROPERTY:

AN

ESSAY

IN

PURSUIT

OF

JUSTICE

FOR

BREONNA

TAYLOR

H.

Timothy

Lovelace,

Jr.

ABSTRACT-In

March

2020,

Louisville police

officers

fatally shot

Breonna

Taylor

in

her

apartment while

executing

a

no-knock

warrant.

There

was

great

outrage

over

the

killing

of

the

innocent

woman, and

Kentucky

Attorney

General

Daniel Cameron

led

an

investigation

of

the

officer-involved

shooting.

Activists

protested

in

Louisville after

Taylor's

killing,

and when

Cameron's investigation

appeared

stalled,

these

activists

even conducted

a

sit-in

on

Cameron's

front

lawn.

They

demanded

immediate

justice

for

Taylor.

Cameron sharply responded,

lecturing the

activists

on

how to achieve

justice.

He

contended

that

neither

trespassing

on

private property

nor

escalation

in

tactics

could

advance

the

cause

of

justice.

Cameron's

bold assertion invites

a

discussion

of

how

civil

rights

activists

have and

continue

to

use

trespassing

and

escalation

to pursue

justice.

This

Essay

explores

the

relationship between

civil rights

and

property rights

and finds parallels

between

the

sit-in movement

of

the

1960s

and

the Black

Lives Matter

Movement.

This Essay

also

finds parallels

between

Cameron's

criticisms

of

the Black

Lives Matter Movement

and

criticisms

of

the

sit-in movement

of

the

1960s.

The

Essay

concludes by

suggesting

paths

forward

in the

struggle

to

find

justice

for

Taylor.

AUTHOR-Professor

of

Law

and John

Hope

Franklin

Scholar,

Duke

University

School

of

Law.

23

NORTHWESTERN

UNIVERSITY

LAW

REVIEW

ONLINE

INTRODUCTION

...............................................................................................................

24

I.

THE

HISTORICAL

LINKS BETWEEN CIVIL RIGHTS ACTIVISM

AND

THE

USE

OF

P

R

IV

A

TE

P

R

O

PER

TY

..............................................................................................

2

8

II.

THE

PARALLEL RHETORIC

OF

DANIEL

CAMERON

AND

MARTIN

LUTHER

KING'S

CRITICS...................................................................................................................

34

III.

MAKING

PUBLIC ACCOMMODATIONS

LAW

A

REALITY.........................................

35

C

O

N

C

L

U

SIO

N

............................................................................................................

. . .

3 8

"Justice

is

not

achieved

by

trespassing

on

private

property,

and

it's

not

achieved

through

escalation."

-Kentucky

Attorney

General

Daniel

Cameron'

INTRODUCTION

In

July

2020,

dozens

of

peaceful

protesters conducted

a

sit-in

outside

of

Kentucky

Attorney

General

Daniel

Cameron's

Louisville

home.

The

protesters

were

demanding

that

Cameron

criminally

charge

the

police

officers

who

shot

and

killed

Breonna

Taylor

during

the

execution

of

a

no-

knock

warrant

at

Taylor's

apartment.

Cameron was

livid.

When

the

protesters

did

not

leave

Cameron's

lawn,

eighty-seven

of

the

protesters

were

arrested

and

charged

with

criminal trespass, disorderly

conduct,

and

intimidating

a

participant

in

a legal

process.

2

These charges were far from

mundane.

Intimidating

a

participant

in

a

legal

process

is

a Class

D

felony

in

Kentucky

and

can

carry a

five-year

prison

term.

3

1

Jordan

Freiman,

87

People

Charged

with

Felonies

After

Breonna

Taylor

Protest

at

Attorney

General's

House,

CBS

NEWS

(July

15,

2020,

4:36

PM),

https://www.cbsnews.com/news/87-arrested-

outside-kentucky-ags-house-during-breonna-taylor-protest

[https://perma.cc/5FQT-U8R9].

A

group

of

white

senior citizens seeking

justice

for

Taylor

replicated this sit-in

strategy.

They

carried signs

like

"Grannies

for

Breonna,"

and

they

made

stirring

appeals

to

justice.

One

of

the

elderly

demonstrators

said,

"We

felt

like

elderly

white people

standing up for

justice,

for

Black families

and

Black

people was

worth

the

risk

of

arrest, the

risk

of

being

cited."

Another

elderly

protester

declared that

Louisville

needs

"to

wake

up

and make

sure

we're

on

the

right

side

of

history."

Six of

these protesters

were

given citations

for

trespassing,

and

one

protester

was

arrested

and

charged

with criminal

trespassing.

Bruce

Schreiner,

Kentucky:

Elderly

Whites

Protestfor

Slain

Black

Woman,

AP

NEWS

(Aug.

20,

2020),

https://apnews.com/

article/019f6eaeblf2c7b8fcaa95f9bc8a5ff3

[https://perma.cc/2UZN-N72G].

2

Jacey

Fortin

&

Ally

son

Waller,

87

Face

Felony

Charges

After

Protesting

Breonna

Taylor

's

Death,

N.Y.

TIMES

(July

17,

2020),

https://www.nytimes.com/2020/07/15/us/protesters-arrested-breonna-

taylor-kentucky.html

[https://perma.cc/5JTB-ARPM].

3

David Mattingly,

Felony

Charges

for

Cameron

Protesters

Could

Be

Hard

to

Prove,

WAVE

3

NEWS

(July

15,

2020,

6:54

PM),

https://www.wave3.com/2020/07/15/felony-charges-cameron-protesters-could

-be-hard-prove

[https://perma.cc/49TW-53Q9]

(explaining

the

felony

charges

and

the

difficulty

of

proving

the

charges).

The

felony

charges raised

serious

concerns that

local

officials

were merely

seeking

to

chill

the free

speech rights

of

the

protesters,

and

prosecutors later

conceded

the

point,

dropping

the

felony

charges

"in

the

interest

of

the

justice

and

promotion

of

the

free

speech

ideas."

Vandana

Rambaran,

Prosecutors

Drop

Felony Charges

Against

87

Breonna

Taylor

Protesters

Arrested

at

Home

of

Kentucky

AG,

Fox

NEWS

(July

17,

2020),

https://www.foxnews.com/us/prosecutors-drop-felony-charges-against-

24

Of

Protest

and

Property

Shortly

after

the

arrests,

Cameron

issued

a press

statement

decrying

the

sit-in. "The

stated goal

of

today's

protest

at

my home

was

to

'escalate,"'

he

declared.

4

"That

is

not

acceptable

and

only

serves

to

further

division

and

tension

within

our community."

5

Cameron

maintained

that

the demonstrators

seeking

justice

for Breonna

Taylor

did

not

understand

justice

at

all.

"Justice

is

not

achieved

by

trespassing

on

private

property,"

Cameron

lashed

out,

"and

it's

not

achieved

through

escalation."

6

Cameron's

assertions

about

how

justice

is

achieved

offer

us

a

window

to

explore a

broader,

theoretical question for

justice

seekers.

How

might

people, who

are

witnessing

justice

delayed

and

justice

denied, leverage

trespassing

to create

the

context

for

political

and legal

change?

Put

slightly

differently, why

do

activists often flout private

property

rights

to

advance

civil rights?

The

history

of

the

Civil

Rights

Movement

offers

powerful

insights

to

answer

these

questions-questions

that

Cameron

and

many

others

might

well appreciate.

Cameron

is

Kentucky's

first

Black

Attorney

General

and

only

its

second

Black statewide

officeholder.'

Moreover,

Cameron

strongly

believes

that

he

is

continuing

the

work

of

civil rights

icons.

He

has

stated

that

he

"think[s]

often

about

[his]

ancestors

who

struggled

for

freedom,"'

and

considers

civil

rights

leaders,

like

Dr.

Martin

Luther

King,

Jr.

and

former

civil

rights

activist

and

Congressman

John Lewis, his

heroes.

9

Yet

both

the

content

and

timing

of

Cameron's

comments

on

protest

and

property

are

deeply

ironic;

he

made

them

during

the

60

th

anniversary

of

the

1960

sit-in

movement.

10

When

civil

rights activists could

not

sufficiently

advance

their

claims

for

full

citizenship

through

courts

or

legislatures,

many

87-breonna-taylor-protesters-kentucky-attorney-general

[https://perma.cc/5EDZ-8952];

Dennis

Romero,

Nearly

100

Breonna

Taylor

Protesters

Arrested

on

Kentucky

Attorney

General's

Lawn,

(July

14,

2020,

11:44

PM),

https://www.nbcnews.com/news/us-news/nearly-100-breonna-taylor-protesters-arrested-

kentucky-attorney-general-s-n1233848

[https://perma.cc/QTA2-833Y]

(quoting

the

director

of

the

ACLU

of

Kentucky:

"The only

purpose these charges

seem

to

serve

is

to

potentially

chill

the free

speech

rights

of

the

protesters.").

'

Freiman,

supra

note

1.

5

Id

6

Id

Joe

Sonka,

Daniel

Cameron

Wins

Kentucky

Attorney

General

Race

in

Historic

Victory,

COURIER-

J.

(Nov.

6,

2019,

9:27

AM),

https://www.courier-journal.com/story/news/politics/2019/11/05/kentucky-

election-results-2019-cameron-wins-attorney-general-race/4155926002

[https://perma.cc/6EYP-T5HS].

8

Daniel

Cameron (@DanielCameronAG),

TWITTER

(Aug.

25,

2020,

9:31

PM),

https://twitter.com/

DanielCameronAG/status/1298447848586059776

[https://perma.cc/PB96-ATA7].

9

Attorney

General

Daniel

Cameron

(@kyoag),

TWITTER

(Jan.

20,

2020,

8:06

AM),

https://twitter.

com/kyoag/status/1219259952579207168

[https://perma.cc/935K-4EUF];

Attorney

General

Daniel

Cameron

(@kyoag),

TWITTER

(July

18,

2020,

9:06

AM)

[hereinafter

Cameron,

July

18

Tweet],

https://twitter.com/kyoag/status/1284489831498895360?lang-en

[https://perma.cc/P2MK-XHKB].

10

Freiman,

supra

note

1.

25

116:23

(2021)

NORTHWESTERN

UNIVERSITY

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REVIEW

ONLINE

sought

redress

at

lunch counters

and

other

public

accommodations,

often

trespassing

during

sit-ins.

11

Ownership

of

private

property

has

long

been

considered

a

cornerstone

of

U.S.

citizenship.

Given the

alleged

sanctity

of

private property,

transgressing this

powerful

symbol's

bounds

offered

one

way

for

disempowered

people

to

dramatize

their

plight

and

draw overdue

attention

to

their

cause.

Trespassing

simultaneously

forced

an

array

of

private

and

public

actors-proprietors,

police

officers,

judges,

lawyers,

governmental officials,

and

civic

leaders-to

become

more

involved

in

these

disputes

and to

consider

the

demonstrators'

core

concerns

in

order

to

end

the

trespassing.

12

The

idea behind

the

sit-ins

was

to

literally

disrupt

business

as

usual.

The

demonstrators'

actual

possession

of

food

or

beverages

was

beside

the

point.

The

demonstrators

wanted

to

possess first-class

citizenship.

Trespassing

was

a

powerful

means

of

escalating these

concerns

to

a

broader

political

audience

that

was otherwise

happy

to ignore

them.

The

irony

of

Cameron's

statements

is

apparent

in

yet

another

respect.

For

movement

activists

of

the

1960s,

protesting

on

politicians'

front

lawns

to

reform

law

and to

challenge

criminal injustice

was well

within

bounds.

During

the

drive

for

the

Civil

Rights

Act

of

1964,

for example,

demonstrators

protested

on

Atlanta

Mayor

Ivan

Allen's

front

lawn.13

The

demonstrators

were

seeking

justice

for

twenty-one

other demonstrators

who,

ironically,

had

just

been

jailed

for

trespassing

during

an

earlier

demonstration.

14

In

other

words,

demonstrators

trespassed

on the

mayor's

front

lawn

to

find

justice

for

a

group already in

jail

for

trespassing.

Cameron

should

additionally

note

that

one

of

the demonstrators,

then

in

jail

for

trespassing,

was

the

Chairman

of

the Student

Nonviolent

Coordinating

Committee

(SNCC),

John

Lewis.

11

Escalation

is

central

to

any

social

movement,

and

escalation through

trespassing

is

a

staple

in the

social

movement

repertoire.

Just

ask

Daniel

Cameron's

purported

heroes.

1

6

This

Essay

makes

three

moves.

First,

it

highlights Cameron's poor

understanding

of

the

relationship

between

civil

rights

and

property

rights

by

11

CHRISTOPHER

W.

SCHMIDT,

THE

SIT-INS:

PROTEST

AND

LEGAL

CHANGE

IN

THE

CIVIL

RIGHTS

ERA

8,

11

(2018);

see

also

TOMIKO

BROWN-NAGIN,

COURAGE

TO

DISSENT:

ATLANTA

AND

THE

LONG

HISTORY

OF

THE

CIVIL

RIGHTS

MOVEMENT

134-35

(2011)

(chronicling

activists'

extrajudicial

attempts

to

seek

redress

during

the

sit-in

movement).

12

See

Jim

Bentley,

Caroling

Protesters

Visit

Allen:

Talk

with

Mayor

on

Rights

Issues,

ATLANTA

CONST.,

Dec.

24,

1963,

at

9

(demonstrating

how

a

protest

put pressure

on

a

mayor

to

support

public

accommodations

legislation).

13

Id

14

Id

15

Id

16

See

Cameron,

July

18

Tweet,

supra

note

9

(praising

"[t]he

life and

legacy

of

Rep.

John Lewis"

and "[h]is

fight against

injustice").

26

Of

Protest

and

Property

examining the

claims made

by

civil

rights litigants

and

activists-in

particular,

those

made

by

Black

Louisvillians-during

the

push to

desegregate

public

accommodations. Louisville has

historically been

a key

site

for

reshaping

America's

understanding

of

protest

and

property-from

the

city's

position

as

a

stop

on

the

Underground

Railroad

17

to Black

Americans'

streetcar

demonstrations

during

Redemption

18

to

the

U.S.

Supreme

Court's

landmark

decision

in

Buchanan

v.

Warley.

19

Cameron, like

far too many

Americans,

has

failed

to acknowledge

how

activists'

willingness

to privilege

racial

justice

over narrow

conceptions

of

private

property transformed

civil

rights

law

in

the

United

States.

This

transformation

is

particularly

evident

in

the

region

where

Cameron

was

born,

raised,

attended

college

and law school, and

now

lives.

20

In

turn,

the

sit-in

on

Cameron's

lawn

might

be

viewed

in

a

broader historical

light.

Inasmuch

as

the campaign

seeking

justice

for Breonna

Taylor-and

indeed,

the entire

Black

Lives

Matter

Movement-are

typically

conceptualized

as

efforts

to

reform

the criminal

justice

system, these

campaigns

are

also

part

of

a

much

older

and

more

extensive

struggle

that

relies

on

escalations

on

private

property

to

advance the cause

of

racial

justice.

This

Part

also

discusses

the

responses

that

these

escalations elicited

outside

of

Louisville

in

the Supreme

Court

and

Congress.

Second,

this

Essay

uses

Cameron's

unfortunate

response

to

situate

the

backlash

to the

sit-ins

in

a

broader

context.

Some

might

simply explain

Cameron's

response

to

the sit-in

as

a response made

by

a man

furious

that

activists conducted

a sit-in

on

his

front

lawn.

Others believe

that

Cameron

is

a

political

opportunist

or

that,

while

Cameron regularly

invokes

the fact

that

he

is

Black

and

thus

truly

understands

racial

justice,

he

is

actually

trafficking

in

rampant anti-Blackness.

21

We

might

also

explain

Cameron's

unfortunate

statements

on

property

and

protest

as

expressions

of

free-market

idolatry-

the

sacredness

of

private

property-or

of

the

types

of

appeals to

law and

order

that

spurred

mass

incarceration.

Either

might

be

true,

but

in

response,

17

J.

Blaine Hudson,

"Upon

This

Rock"-The

Free

African American

Community

of

Antebellum

Louisville,

Kentucky,

109

REG.

KY.

HIST.

Soc'Y

295,

321-22

(2011).

18

See

generally

Marjorie

M.

Norris,

An

Early

Instance

of

Nonviolence:

The

Louisville

Demonstrations

of1870-1871,

32

J.S.

HIST.

487

(1966)

(detailing

Black

streetcar

activism during

a

major

rise

in

white supremacy).

19

245

U.S.

60,

82

(1917)

(declaring

that

a

Louisville

ordinance

which

mandated

residential

segregation

violated

the Due

Process

Clause

of

the

Fourteenth

Amendment).

20

Attorney

General

Daniel

Cameron,

KY.

ATT'Y

GEN.,

https://ag.ky.gov/about/Pages/Attomey-

General.aspx [https://perma.cc/ZF3Z-RP5T]

(describing

Cameron's

background);

see

infra

Part

I.

21

See,

e.g.,

Adrian

Florido,

Why

Kentucky's

Black

Attorney

General

Faces

Scorn

from

Black

Activists,

NPR

(Sept.

28,

2020,

5:05

AM),

https://www.npr.org/2020/09/28/9i17656995/why-kentuckys-

black-attorney-general-faces-scorn-from-black-activists

[https://perma.cc/7RZM-EP6F]

("But

he's

not

for

us....

[H]is

skin

is

Black,

not

the

way

he

thinks,

you

know?").

27

116:23

(2021)

NORTHWESTERN

UNIVERSITY

LAW

REVIEW

ONLINE

we

should

ask

Cameron:

what about

the sanctity

of

Breonna

Taylor's

property?

Better

yet,

what about

the

sanctity

of

Breonna

Taylor's

life?

And

why

is

Cameron

so

eager

to

crack

down

on

protesters but

refuses

to hold

officers

accountable

or

force

them

to

respect

law and

order

too?

22

In

any

case,

what

is

so

striking

here

is

that

the

very content

of

many

of

Cameron's

lines

of

argument

have

deep

and

ugly

historical

roots.

23

So,

if

some

of

Cameron's

arguments

seem

familiar,

it

is

because

they

are.

The

sit-

in

movement's

opponents

made eerily

similar

types

of

claims

about

protest

and

property."

But

this

situation

is,

in

some

ways,

more

troubling.

Cameron,

as

state

attorney general,

has

more

judicial

power

than

Eugene "Bull"

Connor,

Birmingham's

commissioner

of

public

safety,

25

or

the

Birmingham

clergymen

who

criticized

King.

26

He

has

wielded

this

power

to

delay

and

deny

justice

to

Taylor

and scores

of

demonstrators.

Then

he

audaciously

proclaimed

how

justice

is

really

achieved-namely,

that

it

is

not

achieved

through

escalation

tactics

and

trespass-all

while ignoring

history

in

the

process.

The

Civil

Rights

Movement's

history

illustrates

how

effective

trespass

and

escalation

tactics

can

be

in

the

pursuit

of

justice,

as

shown

in

this

Essay's

third

Section.

Cameron

would

be

wise

to

revisit this history.

I.

THE

HISTORICAL

LINKS

BETWEEN CIVIL

RIGHTS

ACTIVISM

AND

THE

USE

OF

PRIVATE PROPERTY

On

May

24,

1954,

seven

days

after the

U.S.

Supreme

Court's

landmark

decision

in

Brown

v.

Board

ofEducation,

the Court

issued

a

per

curiam

order

22

See

Marty

Johnson,

Kentucky

Attorney

General

Didn't

Recommend

Any

Murder

Charges

to

Breonna

Taylor

Grand

Jury,

HILL

(Sept.

30,

2020,

12:11

PM),

https://thehill.com/homenews/

administration/518951

-ag-cameron-didnt-recommend-any-homicide-charges-to-breonna-taylor

[https://perma.cc/ACY2-ZS8M]

(explaining

that

Cameron

refused

to

even

recommend

homicide charges

to

the

grand

jury

in

the

Taylor

case);

see

also

Paul

Butler,

I'm

a

Former

Prosecutor.

The

Charge

in

Breonna

Taylor's

Death

Is

Pathetically

Weak,

WASH.

POST

(Sept.

24,

2020,

5:36

PM),

https://

www.washingtonpost.com/opinions/2020/09/24/im-former-prosecutor-charge-breonna-taylors-death-is-

pathetically-weak

[https://perma.cc/H6HK-6J92]

("I'm

a

former

prosecutor,

and

I

would

have

charged

all three

officers

with manslaughter.").

23

Cameron

has

argued

that

we

should

reject

the

reasoning

that

one's

"skin

color

must

dictate

your

politics."

See Florido,

supra

note

21.

I

agree.

Skin

color

should

never

dictate

one's

politics.

Hence,

the

focus

of

this Essay

is

on the

content

of

Cameron's

arguments rather

than

the

color

of

his

skin.

For

more

on

the

parallel

rhetoric

between

Cameron

and

Martin

Luther

King's

critics,

see

infra

Part

II.

24

See

infra

Part

II.

25

MARTIN

LUTHER

KING, JR.,

WHY

WE

CAN'T

WAIT

67

(Signet

Classics 2000)

(1963).

26

Statement

byAlabama

Clergymen,

STAN.

UNIV. MARTIN

LUTHER

KING,

JR.

RSCH.

&

EDUC.

INST.

(Apr.

12,

1963),

https://kinginstitute.stanford.edu/sites/mlk/files/lesson-activities/clergybirmingham

1963.pdf [https://perma.cc/GS2Z-J3DZ].

28

Of

Protest

and

Property

in

Muir

v.

Louisville

Park

Theatrical

Association.

2

,

The

Louisville Park

Theatrical

Association

(the

Association),

a

privately

operated

business,

leased

an

amphitheater

in

a

city-owned park.

28

The

Association

denied

James

Muir,

a Black

Louisvillian,

admission

to the

amphitheater

because

of

his

race.

29

Muir's

subsequent

lawsuit,

which

was

part

of

a

larger

group

of

suits

that

challenged segregated public accommodations

in

Louisville, claimed

that

the

city

violated

the

Equal

Protection

Clause

when

it

allowed

its

lessee,

the

Association,

to

exclude

Black patrons.

30

The case, in its

own

way,

raised

a

profound

question

about

how

segregationists

used

the

public-private

divide

to defeat

claims

for

racial

justice.

3

1

Muir

eventually

reached the

Supreme

Court,

but

the

Court

did

not

discuss

the

merits

of

the

case.

It

instead remanded

Muir

to

the Sixth

Circuit

Court

of

Appeals

in

light

of

the

Court's

declaration

in

Brown

and

the

"conditions

that

now

prevail."

32

The

Court's

order

reflected

not

only

the

potential

application

of

Brown's

antidiscrimination

principle to

other

areas

of

life

but

also

the

Court's

recognition

that

racial

segregation

at

the

amphitheater

was

no

longer

a

problem

for

James

Muir or

any

Black

Louisvillian.

The

Courier-Journal,

the

city's

most

widely

circulated

newspaper,

33

reported

that

during

the

appellate

process, the

Association

had

"lifted

all

racial

bars"

at

the

amphitheater

and decided

that

tickets

"will

be

offered

for

sale

to the general

public."

34

The

Association's

decision, to

be

sure,

was

no

mere

act

of

altruism;

it

required

a very

public

battle.

"The

decision

to

admit

'the

general

public[,]"'

the

Courier-Journal

emphasized,

"climaxes

a

fight

by

Negro

groups to gain

admission

to the theater."

35

In

other

words,

in

Muir,

racial

escalation, by raising

a

provocative

question

to

the

courts

and

to

society, led

to

racial

justice.

Muir's

example,

by

itself,

might

be

enough

for

Cameron to rethink

his

comments

on

the relationship

between

racial

escalation

and racial

justice.

2

347

U.S.

971,

971

(1954)

(per

curiam)

(vacating

and

remanding

"for

consideration

in

the

light

of

the

Segregation

Cases

decided

May

17,

1954,

Brown

v.

Board

of

Education,

etc.,

347

U.S.

483

...

and

conditions that

now

prevail").

28

Sweeney v.

City

of

Louisville,

102 F.

Supp.

525,

528

(W.D.

Ky.

1951),

aff'd

sub

nom.

Muir

v.

Louisville

Park

Theatrical

Ass'n,

202

F.2d

275

(6th

Cir. 1953),

vacated,

347

U.S.

at

971.

29

Id

at

527.

30

Id

at

526-27.

31

Id

32

Muir,

347

U.S.

at

971.

33

Keith

L.

Runyon,

The

Specter

of

George

Prentice

Is

Not

Welcome

Here

Anymore,

COURIER-J.

(Aug.

20,

2018,

12:54

PM),

https://www.courier-journal.com/story/opinion/contributors/2018/08/17/

george-prentice-statue-louisville-free-public-library/993

950002/

[https://perma.cc/B8LV-Y2HT].

34

Amphitheatre

Racial

Bars

Are

Lifted,

COURIER-J.,

Mar.

11,

1954,

at

1.

35

Id

29

116:23

(2021)

NORTHWESTERN

UNIVERSITY

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Cameron

might,

however,

appreciate

Muir

for another

reason.

James

Muir

paved

the

way

for

Daniel Cameron

to

attend

law school.

Muir

was

in

the

first

class

of

Black

students who

desegregated

the

University

of

Louisville

School

of

Law,

Cameron's

law

school

alma

mater.

36

Muir

helped

lay

the

foundation for midcentury protests

challenging

segregated public

accommodations

in

Louisville. During

the

1950s,

Black

activists

in

Louisville held

small

and

sporadic

protests

at

segregated

businesses,

and

Louisville's

Black

state

representative

introduced

public

accommodations legislation.

37

These efforts

received

little

traction,

but

they

nonetheless

raised new

questions

about

the

relationship

between

the

pursuit

of

civil

rights

and

the

protection

of

property

rights.

Local

white

leaders

balked.

As

a

1957

editorial

in

the

Courier-Journal

highlighted,

city leaders

"s[aw]

only

a

danger

to

progress

...

in

the effort

to

force

desegregation

by

statute

in

private business."

38

While

they

could "readily

sympathize

with the

eagerness

of

Negroes

to

achieve a

full

measure

of

acceptance

as

American

citizens[,]" this fight

to

"compel

private

businesses

to accept

Negroes"

could

stop

and

even

reverse the

trend

of

racial

progress

in

the

city.

3 9

Massive

demonstrations

over

segregated public

accommodations

erupted

in

1960

throughout

the

South.

In early

1960,

students descended

on

Jim

Crow

five-and-dime

stores.

They

made

constitutional

claims

with

their

bodies

at

lunch counters

over

the

scope

of

private

property

rights,

the

potential

uses

of

the

Commerce Power,

and

the meaning

of

the

Equal

Protection

Clause.

40

As

Ella

Baker

famously

wrote

after

SNCC's

founding

conference,

the student

"demonstrations

are

concerned

with something

much

bigger than

a

hamburger

or

even a

giant-sized

Coke."

41

The

students

were

letting

"the

world

[]

know

that

we

no

longer

accept

the

inferior position

of

second-class

citizenship."42

Baker

explained

that

the

students

were

willing

to

36

Central

Law

School,

1890-1941,

UNIV.

OF

LOUISVILLE,

https://louisville.edu/lmc/history5.html

[https://perma.cc/P852-X7BP].

The

University

of

Louisville became

the

University

of

Louisville

Louis

D.

Brandeis

School

of

Law in

1997

to

honor Louis

Brandeis,

former

U.S. Supreme Court Justice.

Our

History

and

Traditions,

LOUIS

D.

BRANDEIS

SCH.

OF

L.,

https://louisville.edu/law/about/history-and-

traditions

[https://perma.cc/KL5G-NMFG].

37

See

also

TRACY

E.

K'MEYER,

CIVIL

RIGHTS

IN

THE

GATEWAY

TO

THE

SOUTH:

LOUISVILLE,

KENTUCKY,

1945-1980,

at

80-82

(2009).

38

Pressure

Ill-Placed

for

the

Negro

Cause,

COURIER-J.,

Oct.

31,

1957,

at

8.

39

Id

40

H.

Timothy

Lovelace,

Jr.,

Making

the

World

in

Atlanta's

Image:

The

Student

Nonviolent

Coordinating

Committee,

Morris

Abram,

and

the

Legislative

History

of

the

United

Nations

Race

Convention,

32 L.

&

HIST.

REV.

385,

392

(2014).

41

Ella

Baker,

Bigger

Than

a Hamburger,

S.

PATRIOT

(May

1960),

https://www.crmvet.org/

docs/sncc2.htm

[https://perma.cc/CC46-ZEJU].

42

Id

30

Of

Protest

and

Property

go

to

jail

to

end

discrimination

"not

only

at

lunch

counters,

but

in

every

aspect

of

life."43

The

highly publicized

sit-ins quickly

spread

throughout

the South

and

sparked

fresh

demonstrations

in

Kentucky.

4

Bold activists confronted

segregated

establishments

with demands

for

service.

When

the activists

did

not

leave

voluntarily,

reprisals-including

trespass

or

disorderly

conduct

charges-often

followed."

In

early

1961,

the

protests

hit

a

fever

pitch

in

Louisville.

46

Police

arrested hundreds

of

protesters,

and

the

local

turmoil

made

national

news.

47

King also

visited

Louisville

during

this

period,

where

he

delivered

five

speeches,

met

with

the

mayor

and

the

city's

civic and

religious

leaders, and

championed

the

new

spirit

of

sit-in

activism.

48

In

one

speech,

King

proclaimed

the

sit-ins

demonstrated

that

Black

people

were

"willing

to suffer

to

destroy segregation

[and]

'to

die

if

necessary."'

49

For

King,

the

sit-ins

had

become a

first-class

method for

gaining first-class

citizenship.50

That

spring,

local

activists launched

a new

phase

in

their

demonstrations.

The

Louisville branch

of

the

National

Association

for

the

Advancement

of

Colored

People

(NAACP)

led

a

"Nothing

New

for Easter"

boycott.

51

The

boycott

targeted

segregated

merchants

during

an

important

shopping

season.

52

This

strategy

escalated

the

concerns

of

boycotters,

making them

also the

concerns

of

local shop

owners

whose

properties

and

businesses

were

injured.

The

boycott

put

substantial financial pressure

on

local

establishments,

and several

injured

businesses

decided

to desegregate.

5 3

However,

the

boycott

did

not

fully

desegregate the

city's

public

accommodations."

43

Id

44

CATHERINE

FOSL

&

TRACY

E.

K'MEYER,

FREEDOM

ON THE

BORDER:

AN

ORAL

HISTORY

OF

THE

CIVIL

RIGHTS MOVEMENT

IN

KENTUCKY

84

(2009).

45

See,

e.g.,

The

United

Press,

2

Coeds

Link

Firing

to

Henderson

Sit-In,

COURIER-J.,

June

15,

1961,

at

17

(noting

that

some

protesters

were

fired

and

criminally

charged

for

trespassing

after

a

Henderson,

Kentucky

sit-in).

46

K'MEYER,

supra

note

37,

at

88-92

(describing

the

escalation

in

protests during

this

period).

47

See,

e.g.,

177

Jailed

in

'Lively'

Ky.

Jim

Crow

Protest,

PHILA.

TRIB.,

Mar.

25,

1961,

at

14

(illustrating

how

police targeted

Black

leaders

with

disorderly

conduct

charges);

see

also

162

Seized

in

Louisville,

N.Y.

TIMES,

Apr.

26,

1961,

at

26

(noting

that

there had

been

more

than

600

arrests

during

this

wave

of

protests).

48

King

Warns

Against

'2nd-Class

Methods,'

BALT.

AFRO-AMERICAN,

Apr.

29,

1961,

at

10.

49

Id.

50

Id.

51

K'MEYER,

supra

note

37,

at

89.

52

Id

53

Id

54

Id.

31

116:23

(2021)

NORTHWESTERN

UNIVERSITY

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REVIEW

ONLINE

For

the

years,

Louisville

was

mired

in

spells

of

protests,

arrests,

and

negotiations.

55

Black

Louisvillians

also

pressed

city

officials

to

adopt

a

public

accommodations

ordinance,

but

to

no avail.

56

The

response

was

predictable.

As

one

city official

sighed,

the

city

"has no

control

over

private

property

rights

nor

can

it

pass

any laws

in

conflict

with constitutional

guarantee

[sic]

of

private

property

rights."

57

During

this

time,

the

boycotters'

escalations

and

concerns,

however,

made

their

way

to

the

U.S.

Supreme Court.

The

Court

wrestled

with

the

tension

between

civil rights

and

property

rights

in

a

series

of

cases

known

as

"the

sit-in

cases."

The

earliest

cases

involved

trespassing

58

and

disorderly

conduct."

Civil

rights

lawyers

argued

hundreds

of

these

cases

every

year,

and

some

of

the

cases

that

reached

the Supreme

Court-namely

the

consolidated

cases

of

Hamm

v.

City

of

Rock

Hill

and

Lupper

v.

Arkansas

had

far-reaching

consequences.

60

Both

rulings

would impact

the

convictions

of

large

swaths

of

movement

centers

throughout

the

South.

The

sit-in

cases were,

in

the

eyes

of

some, the

most

significant

civil

rights

cases in

the

post-Brown

years,

61

and

they

came

to

shape

the

careers

of

civil

rights

icons

like

Constance

Baker

Motley.

In

fact,

most

of

Motley's

arguments

before

the

Court

were

sit-in

cases, and

she

won

nearly

every

case

she

argued before

the

Court.

62

Of

all

of

her

arguments to the

Court,

regardless

of

legal

issue, Motley

considered

Lupper,

which

stemmed

from

trespass

convictions,

"the

most

difficult

case

[she]

argued"

and

perhaps

her "most

stunning

Supreme

Court

victory."

63

Motley remembered

that

Lupper

55

Id.

at

97-103

(chronicling

the

tensions

in

the

city).

56

Id

57

Id

at

83.

58

See

Mitchell

v.

City

of

Charleston,

378

U.S.

551

(1964);

Hamm

v.

City

of

Rock

Hill,

379

U.S.

306

(1964);

Barr

v.

City

of

Columbia,

378

U.S.

146

(1964);

Bouie

v.

City

of

Columbia,

378

U.S.

347

(1964);

Shuttlesworth

v.

City

of

Birmingham,

373

U.S. 262

(1963);

Blow

v.

North

Carolina,

379

U.S.

684

(1965);

Abernathy

v.

Alabama,

375

U.S.

963

(1964);

Thompson

v.

Virginia,

374

U.S.

99

(1963);

Bouie

v.

City

of

Columbia,

374

U.S.

805 (1963);

Bell

v.

Maryland,

374

U.S.

805

(1963);

Goberv.

City

of

Birmingham,

373

U.S.

374

(1963);

Peterson

v.

City

of

Greenville,

370

U.S.

935

(1962).

59

Some

states

similarly

used

breach

of

peace statutes

to

prosecute

activists.

See

Henry

v.

City

of

RockHill,

376

U.S.

776

(1964);

Fieldsv.

South

Carolina,

375

U.S.

44

(1963);

Edwardsv.

South

Carolina,

372

U.S.

229

(1963);

Wrighty.

Georgia,

370

U.S.

935

(1962);

Gamerv.

Louisiana,

368

U.S.

157

(1961).

60

Hamm,

379

U.S.

at

307.

The

Court

decided

these

sit-in

cases

after

the

passage

of

the

Civil

Rights

Act

of

1964,

and

the

case

raised

the issue

of

applying

the Act

retroactively.

Id. at

312.

The

Court

issued

a

momentous

ruling,

vacating

the

convictions

and

dismissing

the

prosecutions

in

the

sit-in

cases,

although

the

conduct occurred

before

the

Act's

enactment.

Id

at

317.

61

Rights

Cases

in

High

Court,

CHI.

DAILY

DEF.,

Nov.

1,

1962,

at

6;

Legal

Defense

Fund

Keeps

U.S.

Supreme

Court

Busy,

CLEV. CALL

&

POST,

June

30,

1962,

at

4C.

62

Raymond

J.

Lohier,

Jr.,

On

Judge

Motley

and

the

Second

Circuit,

117

COLUM.

L.

REV.

1803,

1804-05

(2017)

(noting that

Motley

won

nine

out

of

the

ten

cases

she

argued

before

the Court).

63

CONSTANCE

BAKER

MOTLEY,

EQUAL

JUSTICE

UNDER

LAW:

AN

AUTOBIOGRAPHY

199

(1998).

32

Of

Protest

and

Property

determined the

fate

of

"thousands

of

sit-in students

involved

in

cases

pending

in

the

South."

64

Motley

added

that

had

she

lost

the

case,

these

sit-in

students

"would

have

remained

in

the

clutches

of

angry

local

police,

prosecutors,

and

jailers."

65

Cameron

might

do

well

to

recognize a

takeaway

point

here. The

sit-ins

did

not

simply

transform

civil

rights

activism

in

the

1960s;

they

transformed

civil

rights

lawyering

as

well.

66

The

tension

between

racial

justice

and

the alleged

sanctity

of

private

property

was also at the

heart

of

Congress's

debates

over

Title

II

of

the

Civil

Rights

Act

of

1964.

Everett

Dirksen,

a

Republican senator

from

Illinois

and

the

senate

minority

leader,

for

example,

argued

that

Congress lacked the

authority

to

pass

Title

II.

Dirksen

called

any

congressional

attempt

to

"force

business

...

to

accept

integration

a

violation

of

constitutional

protection

of

property

rights."

67

Dirksen

was

not

alone

in

advancing

this

argument

in

the

Capitol.

On

this

front,

he

found common

cause

with congressmen

like

Strom

Thurmond,

Barry Goldwater,

and James

Eastland-politicians

whose

views

on racial

justice

and

property

rights

have

properly

cast

them

in

an

awful

historical

light.

68

And

if

Cameron

wondered

whether

escalation or trespassing

was

important

to

advancing

racial

justice,

he

might revisit

the

highlights

of

King's

legacy.

In

1963,

the

Southern Christian Leadership

Conference

(SCLC)

launched

a

project marked

by escalation in

Birmingham,

Alabama.

69

In

fact,

the

SCLC

was

so

invested

in

racial

escalation

in

Birmingham

that,

in

King's

words, the

SCLC

named

their

crusade

"'Project

C'-the

'C'

for

Birmingham's

Confrontation

with the

fight for

justice

and

morality

in

race

relations."

0

Project

C

featured

marches

on

city

hall,

lunch

counter

sit-ins,

and

boycotts

of

segregated

downtown

merchants.

71

The

peaceful protesters

were

met

with

incredible

violence. Bull

Connor,

Birmingham's

commissioner

of

public

safety,

unleashed high-pressure

fire

hoses

and

snarling

police

dogs on

thousands peacefully

demonstrating.

72

These

horrific

64

Id

at

199-200.

65

Id

at 200.

66

See

id.

67

Marjorie

Hunter,

Dirksen

Imperils

Civil

Rights

Plan,

N.Y.

TIMES,

June

18,

1963,

at

1;

see

also

Al

Kuettner,

29

States

Already

Have

Strong

Rights

Laws,

but

They're

Snubbed,

CHI.

DAILY

DEF.,

Aug.

1,

1963,

at

6.

68

Roll Call

Tally

on

Civil

Rights

Act

1964,

NAT'L

ARCHIVES

(June

19,

1964),

https://www.

archives.gov/legislative/features/civil-rights-1

964/senate-roll-call.html

[https://perma.cc/5PQU-X5AK].

69

KING,

supra

note

25,

at

40.

70

Id.

71

Id

at

40-42.

72

ADAM

FAIRCLOUGH,

TO

REDEEM

THE

SOUL

OF

AMERICA:

THE

SOUTHERN

CHRISTIAN

LEADERSHIP

CONFERENCE

&

MARTIN LUTHER KING,

JR.

126

(2001).

33

116:23

(2021)

NORTHWESTERN

UNIVERSITY

LAW

REVIEW

ONLINE

images

of

brutality

in

Birmingham

not

only

circulated

the

United

States

but

also

became

a

source

ofinternational

embarrassment for

the

country.

73

II.

THE

PARALLEL

RHETORIC

OF

DANIEL

CAMERON

AND

MARTIN

LUTHER

KING'S

CRITICS

The

many

parallels

between

Cameron's

attacks

on

the Louisville

demonstrations

and

critics'

attacks

on

King

are

fascinating.

For

the

sake

of

simplicity

and

to

give

Cameron the

benefit

of

the doubt,

we

might

use

King's

"moderate"

critics

in

Birmingham

as

the baseline

for

comparison,

rather

than

Bull

Connor

and

his supporters.

Cameron

denounced "out-of-state

celebrities"

7 4

and

"irresponsible"

civil

rights

leaders

for

their

calls

for

racial

justice

in

Louisville.

75

King

was

regularly

called

an

"outside agitator,"

6

and

his critics

in

Birmingham blasted

the

demonstrations

that

were

purportedly

"directed

and led

in

part

by

outsiders"

and

took

matters

out

of

the hands

of

the

city's

"[r]esponsible

citizens."

7

Cameron argued

that

the

"escalation"

on

his

front

lawn

"serves

to

further division

and

tension

within

our

community."

78

King's

critics charged

that

the

demonstrations

had

"not

contributed

to the

resolution

of

our

local

problems,"

but

only

incited

"hatred."

9

According

to

the

critics,

the

demonstrations

should

be

abandoned

so

that

people

could

"unite

locally

in

working

peacefully

for

a

better

Birmingham."

80

And

though

Cameron's

investigation

was lagging, Cameron

urged

demonstrators

calling

for

justice

for Breonna

Taylor

to

wait

and

let the

legal

process

work.

8

1

In

Birmingham,

"wait"

was

a watchword.

King's

critics

"

Id

at

126-27.

74

Attorney General

Daniel

Cameron

(@kyoag),

TWITTER

(Oct.

6,

2020,

9:00

AM),

https://

twitter.com/kyoag/status/1313509320294686721

[https://perma.cc/52TZ-TXGM]

(regarding

the

Taylor

case)

("I

joined

@foxandfriends

this morning

to

discuss

comments from out-of-state

celebrities

....

").

5

KYOAG

Daniel

Cameron,

Interview

on

Fox

&

Friends

-

10/6/20,

YOUTUBE

(Oct.

6,

2020),

https://youtu.be/XzGfZfVFzhA

[https://perma.cc/FH52-YGRC]

(providing

Cameron's

full

interview).

76

See

Jacey

Fortin,

The

Long

History

of

the

'Outside

Agitator,'

N.Y.

TIMES

(June

9,

2020),

https://www.nytimes.com/2020/06/08/us/outside-agitators-history-civil-rights.html

[https://perma.cc/JY

2C-MJSU]

(the

term

"outside

agitator"

was

often

used

to

attack civil

rights

activists).

7

Statement

by

Alabama

Clergymen,

supra

note

26.

78

Freiman,

supra

note

1.

9

Statement

by

Alabama

Clergymen,

supra

note

26.

80

Id

81

Emily

Czachor,

Kentucky

AG

Asksfor

Patience

in

Breonna

Taylor

Case

97

Days

After

Shooting,

NEWSWEEK

(June

18,

2020,

5:53

PM),

https://www.newsweek.com/kentucky-ag-asks-patience-breonna-

taylor-case-97-days-after-shooting-1511992

[https://perma.cc/QS2L-V95T].

34

Of

Protest

and

Property

pressed

the

demonstrators

to

be

more

patient

and

allow the

legal

system more

time to

resolve

the

situation.

8 2

Many

of

the

responses

that

justice-minded

people

might

offer Cameron

today

are

similar

to

King's

responses to

his critics

in

yesteryear.

While

Cameron

criticized

"irresponsible"

outsiders

for

the

demonstrations,

Breonna

Taylor's

family

invited many thoughtful

activists

and

lawyers

to

Louisville

in

the

same

way

that

the

Alabama

Christian

Movement

for

Human

Rights

invited

King

to demonstrate

in

Birmingham.

83

Perhaps more

importantly,

in

the words

of

King:

"Injustice anywhere

is

a

threat

to

justice

everywhere....

Never

again

can

we

afford

to

live

with

the

narrow,

provincial

'outside

agitator'

idea."

84

While

Cameron rebuked

the

demonstrations

on

his

front

lawn

and

many

others

throughout

the

city,

Cameron,

to

use

King's

words

again, has

"fail[ed]

to

express

a

similar

concern

for

the

conditions

that

brought

about

the

demonstrations."

5

Indeed,

Cameron's

own

inaction

in

Taylor's

case

spurred

the

demonstrations. And

his appeals

to

wait

for

justice

sounded a

familiar

alarm

to demonstrators.

In

Birmingham,

King wrote,

"[t]his

'Wait'

has

almost

always

meant

'Never."'

86

King's

insight

has

proven

to

be

true

in

Louisville.

Taylor's

loved

ones

and

other

justice

seekers

waited

more

than

200

days

for

Cameron to

file

charges

against

the

officers

for

Taylor's

death.

To

this

day,

the

only charges filed

are

wanton endangerment

charges

brought

against

one

of

the

three

officers

whose

stray

bullet

hit

a

nearby apartment.

87

Cameron's

call

for

Taylor's

family

and

supporters

to

"wait"

for

justice,

sadly,

seems

to

be

turning

into

"never."8"

III.

MAKING

PUBLIC

ACCOMMODATIONS

LAW

A

REALITY

The

demonstrations

in

Birmingham

created the

political context for

legislative

reform.

President

John

F.

Kennedy

had

been

relatively

uninterested

in

passing

new civil

rights

legislation

until

he

appreciated how

82

Statement

by

Alabama

Clergymen,

supra

note

26

(calling

for

civil

rights

activists

to

practice

patience

and

stating

that

the

activists

should

pursue

justice

through

courts

and

political

negotiations

rather

than through

"unwise"

and

"untimely"

demonstrations).

83

KING,

supra

note

25,

at

64-65

(publishing

King's

1963

letter

from

Birmingham

Jail).

84

Id

at

65.

85

Id

86

Id

at

69.

87

Nicholas

Bogel-Burroughs,

What

is

'Wanton

Endangerment,'

the

Charge

in

the

Breonna

Taylor

Case?,

N.Y.

TIMES

(Sept.

23,

2020),

https://www.nytimes.com/2020/09/23/us/wanton-endangerment.

html [https://perma.cc/U65R-42SG].

88

See

id

("Mr.

Cameron

said

on

Wednesday

that

the

F.B.I.

was

still

investigating

whether

Mr.

Hankison or

any

of

the

other

officers involved

in

the raid

committed

a

federal

crime,

such

as

violating

Ms.

Taylor's

civil

rights.").

35

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UNIVERSITY

LAW

REVIEW

ONLINE

racism,

like

the

racism

the

world witnessed

in

Birmingham, undermined

America's

position

in

the

Cold

War.

89

People

around

the

world

asked how

America

could

talk

about

spreading

democracy

abroad

when it practiced

racism

at

home.

90

Segregation

gave

fodder

for

Soviet

propaganda

machines

and

raised

serious

doubts

in

the

Third

World

about

the United

States'

commitment

to

its

creed."

As protests

in

Birmingham

raged,

President

Kennedy finally

moved

into

action.

He

proposed new

civil

rights

legislation

that

would

prohibit

racial

discrimination

in

public accommodations."

While

the

Birmingham demonstrations

were

forcing

federal

officials

to

rethink the relationship

between

civil

rights

and

property

rights,

they

were

also

forcing

Louisville

officials

to

do

the

same.

White

Louisvillians

watching

Birmingham

unravel

became

fearful

that

Birmingham-style

protests

might

come

to Louisville,

and

for

good

reason.

Local

activists

who had

traveled

to

Birmingham

to support the

SCLC

advertised

their

plans to

invite Fred

Shuttlesworth

and

King's

lieutenants to Louisville. An editorial

in

the

Courier-Journal

captured the sentiments

of

many

white

Louisvillians

when

they

learned

of

local

activists'

plans.

The

editorial was

aptly

titled, "Why the

Aldermen

Should

Act Now

on the

Anti-Bias

Law."

93

The

Courier-Journal

recounted

the

long

struggle

for

racial

justice

in

Louisville

but

soon

turned

to

what

officials

in

Louisville could

learn from

the

struggle

in

Birmingham.

"The

lesson

of

Birmingham

is

clear[,]" the

editorialists

underscored.

9

"Negroes

are

no

longer

content

to

let the

white

community

decide

when

they

will

be

given

certain

rights.""

The

editorialists

then

borrowed

from

King,

offering insights

enshrined

in

his

Letter

from

Birmingham

Jail.

They

stressed

that

"mere

expressions

of

good

will"

could

no

longer

delay

justice

and

that

"Negroes

are

setting

their

own

timetable

now."

96

The

editorialists

added

that

Black

Americans

knew

that

"little

or

nothing

has

happened

until

they

took

direct

action."

97

It

had been

"nine

years

since

the

Supreme

Court

decision

on

desegregation"

and

"colonialism

[was]

breathing

its

last

gasps

in

most

of

89

Mary

L.

Dudziak,

Birmingham,

Addis

Ababa,

and

the

Image

ofAmerica:

International

Influence

on

U.S.

Civil

Rights

Politics

in

the

Kennedy

Administration,

in

WINDOW

ON

FREEDOM:

RACE,

CIVIL

RIGHTS, AND

FOREIGN

AFFAIRS,

1945-1988,

at

181,

183-84

(Brenda

Gayle

Plummer

ed.,

2003).

90

Id

at

182-83.

91

Id.

92

President

John

F.

Kennedy,

Excerpt

from

a

Report

to

the

American

People

on

Civil

Rights,

JOHN

F.

KENNEDY

PRESIDENTIAL

LIBR.

&

MUSEUM

(June

11,

1963),

https://www.jfklibrary.org/leam/about-

jfk/historic-speeches/televised-address-to-the-nation-on-civil-rights

[https://perma.cc/A2MC-Y623].

93

Why

the

Aldermen

Should Act

Now on the

Anti-Bias

Law,

COURIER-J.,

May

14,

1963,

at

8.

9

Id

95

Id.

96

Id

97

Id

36

Of

Protest

and

Property

Africa

and Asia."

98

Meanwhile,

"in

parts

of

the

United

States-including

a

few

places

in

Louisville-an

American

Negro

[could

not]

get

a

cup

of

coffee.""

The

editorialists'

conclusion

was

straightforward:

passing

a

public

accommodations

ordinance

would

be

"the

most

effective

means

of

insuring

Louisville

against

the

dangers

of

demonstrations

and

boycotts."

100

The

tactics

of

Black activists

worked.

Escalation-activism

in

Louisville, activism

in

Birmingham,

and

the

growing ties

between activism

in

Louisville

and

Birmingham-led

to

significant

legal and social

results

in

the

city.

Louisville

officials

enacted

an

ordinance

banning

racial

discrimination

in

public accommodations

on

May

14,

1963,

more

than

a

year

before Congress

adopted the

Civil

Rights

Act

of

1964

(the Act).

101

When

Congress

eventually

adopted the

Act, the

Bill's

advocates

recognized

the

legacy

of

civil rights

activism

in Louisville.

In

the

Senate

Commerce

Committee's

report

on the Act,

the Committee cited

Muir

and

discussed

Louisville's

struggle

against

segregated

public accommodations

to

help

illustrate the

long

history

of

this

activism.

10 2

Soon

thereafter,

the

Court

upheld

the

Act

in

Heart

ofAtlanta

Motel

v.

United States

and

Katzenbach

v.

McClung.

103

While segregationists

like

Lester

Maddox,

one

of

the

Atlanta

business

owners who

challenged

the

Act

in

Heart

of

Atlanta,

and Ollie

McClung,

the

Birmingham restaurant owner

who

challenged

the

Act

in

Katzenbach,

continued

to

gripe

about

the

invasion

of

their

property

rights,

one

thing

was

evident

from

this relatively

swift

transformation

in

law.

Trespassing

and

escalation

were

central

to

achieving

racial

justice.

The

important

links

between

protest, property,

and racial

justice

were

not

lost

on

commentators

of

that

time.

After

the

Court's

rulings

in

Heart

of

Atlanta

and

Katzenbach,

the

New

York

Times editorialized,

"The

defenders

of

segregation

and

racially based

discrimination

had

relied

heavily upon

a

sweeping

view

of

property

rights

to

defend

their

morally

reprehensible

treatment

of

Negroes."

104

The

editorialists

praised

the

Court

for

"[sweeping]

aside

this

antiquated

and

presumptuous assertion

of

the

sanctity

of

private

property."

105

The

Times

concluded by

praising

the decisions

as

"a

profoundly

important victory for

the

cause

of

justice."

106

After

the

Court's

rulings, a

98

Id

9

Id

100

K'MEYER,

supra

note

37,

at

104.

101

Id.

at

105.

102

S.

REP.

No.

88-872,

at

139-40

(1964).

103

Heart

of

Atlanta

Motel,

Inc.

v.

United

States,

379

U.S.

241,

243

(1964);

Katzenbachv.

McClung,

379

U.S.

294,

295 (1964).

104

The

Civil

Rights

Cases,

N.Y.

TIMES,

Dec.

16,

1964,

at

42.

105

Id

106

Id

37

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ONLINE

writer

for

the

Washington

Post

asked,

"What

did

the

sit-ins

and

the direct

action

movement

accomplish?"

107

His response

was

unequivocal.

"The

direct

action

movement

showed

that

force

was

needed

to provoke

a

quicker

pace

in civil

rights."

108

The

article

recognized

that

the

sit-in

was

a

"technique

of

protest

which

may remain

with

us,"

highlighted

that

sit-ins

"applied the

leverage

and

created

the

climate

that

made

the

change

possible

and

mandatory,"

and

concluded

that

"if

the

property

owner's

rights

are

thereby

abridged by forcing

him to

serve

Negroes,

so

be

it."109

And

if

the

New

York

Times

and the

Washington

Post

are

insufficiently

compelling

sources

for

Cameron,

as

they

have

been

for

conservatives

for

more

than

a

half-century,

Cameron

might

take heed

of

John

Lewis's

understanding

of

the relationship

between

protest

and law reform.

Lewis

declared

that

Heart

of

Atlanta

and

Katzenbach

"vindicated

the

thousands

of

demonstrators

who made

the

civil

rights

bill

not

only

possible

but

imperative."

11

0

CONCLUSION

Breonna

Taylor's

killers

have

still

not

been

brought

to

justice,

but

the

escalations

stemming

from

Taylor's

homicide

have

not

been

in

vain.

Louisville

passed

an

ordinance

known

as

"Breonna's

Law," which banned

the

use

of

no-knock

warrants,

established clearer

guidelines

for

officers'

execution

of

all

search

warrants,

and

mandated

that

officers

activate

their

body

cameras

when

serving

a warrant."

1

The

law has

inspired

other

official

actions.

112

Louisville's

mayor

recently

signed

an

executive

order

that

declared

that

racism

is

a

public health

crisis

in

Louisville,

and

he

offered

an

extensive plan to

better

the

lives

of

the

city's

Black residents.

113

This plan

107

Robert

E.

Baker,

Sit-ins

Gave

Equality;

Where's

Opportunity?,

WASH.

POST,

Dec.

20,

1964,

at

E3.

108

Id

109

Id.

110

LBJ,

Rights

Leaders,

Hail

Court's

Decision,

N.Y.

AMSTERDAM

NEwS,

Dec.

19,

1964,

at

1.

111

See

Tessa

Duvall,

Louisville

Mayor

Signs

Breonna's

Law

'Banning

No-Knock

Search

Warrants,

COURIER-J.

(June

12,

2020, 3:02

PM),

https://www.courier-joumal.com/story/news/politics/metro-

government/2020/06/12/louisville-mayor-signs-breonnas-law-banning-no-knock-warrants/3176830001

[https://perma.cc/5QDY-7SE4].

112

Nadia

Ramiagan,

Breonna's

Law

Prohibiting

No-Knock

Warrants

to

Be

Introduced

in

Legislature;

Other

States Support

It,

N.

KY.

TRIB.

(Jan.

3,

2021),

https://www.nkytribune.com/2021/01/

breonnas-law-prohibiting-no-knock-warrants-to-be-introduced-in-legislature-other-states-support-it

[https://perma.cc/VZ7P-RGHW].

113

Office

of

the

Mayor,

Louisville,

Ky.,

Exec.

Order

No.

2020-022

(Dec.

1,

2020),

https://

louisvilleky.gov/resilience-and-community-services/document/eo2020-022racismasapublichealthcrisis

1

[https://perma.cc/6H77-9BWR].

38

Of

Protest

and

Property

features

criminal

justice

reform

inspired

by the

demonstrations.

1 4

And

the

demonstrations

themselves

have

been

transformative

beyond

Louisville's

borders.

People around the

world

took

to the

streets

throughout

2020

and

have

continued

to

do

so

in

2021.

Demonstrators,

often

invoking

Taylor's

memory,

have also

emphasized

that

anti-racist

efforts

must

be

inclusive

of

Black

women.

1

5

There

remain other options

in

the

pursuit

of

justice

for

Taylor

and,

more

broadly,

in

the

pursuit

of

ending

systemic racism

in

law

enforcement.

On

November

7,

2020,

then-President-elect

Joe

Biden

declared

that

U.S.

voters

had

given

him

a

mandate

"to achieve

racial

justice

and

root out systemic

racism

in

this

country"

and

that

his

Administration

would

seek

to

"restore

the

soul

of

America."

116

More

than

a

half-century

earlier, the SCLC adopted

the

motto,

"To

Redeem

the Soul

of

America."

117

The

organization's

president

was

Dr.

King,

118

and

the

organization blossomed

through

the

toils

of

countless

foot

soldiers

and the

unsung

leadership

of

staffers

like

Ella

Baker."

9

Biden

put

his

campaign

in

clear conversation with

the

SCLC's

mission.

On

the

campaign

trail,

President Biden

pledged

to

end

systemic racism

in

policing,

and

he

spoke

directly about

Taylor's

death.

"We

must

continue

to

speak

Breonna

Taylor's

name,

support

her

family

still

in

grieving,

and

never

give

up

on

ensuring

the full

promise

of

America

for

every

American,"

President Biden

said.

120

Moreover,

Vice

President

Kamala

Harris,

a

Black

woman and

former

prosecutor, has

stated

that

she

does

not

believe

justice

has

been

done

in

Taylor's

case.

"I've

talked

with

Breonna's

mother,

Tamika

114

Darcy

Costello,

Mayor

Declares

Racism

a

Public

Health

Crisis

in

Louisville

After

Breonna

Taylor

Killing,

COURIER-J.

(Dec.

1,

2020,

7:06

PM),

https://www.courier-joumal.com/story/news/

politics/metro-government/2020/12/0

1/louisville-mayor-fischer-lays-out-path-racial-equity-after-

breonna-taylor-death/6464926002

[https://perma.cc/4FQL-ERG2].

115

Melissa Brown

&

Rashawn

Ray,

Breonna

Taylor,

Police

Brutality,

and

the

Importance

of

#SayHerName,

BROOKINGS

(Sept.

25,

2020),

https://www.brookings.edu/blog/how-we-rise/2020/09/25/

breonna-taylor-police-brutality-and-the-importance-of-sayhername

[https://perma.cc/8RXK-CLJ6].

116

Matt

Stevens,

Read

Joe

Biden's

President-Elect

Acceptance

Speech:

Full

Transcript,

N.Y.

TIMES

(Nov.

9,

2020), https://www.nytimes.com/article/biden-speech-transcript.html [https://perma.cc/VN8A-

AKFU].

117

FAIRCLOUGH,

supra

note

72,

at

32.

118

KING,

supra

note

25,

at

64.

119

FAIRCLOUGH,

supra

note

72,

at

5.

120

Ledyard

King

&

Michael

Collins,

Joe

Biden

Urges

Peace,

Patience

Following

Breonna

Taylor

Grand

Jury

Decision,

USA

TODAY

(Sept.

24,

2020,

10:08

AM),

https://www.usatoday.com/story/

news/politics/elections/2020/09/23/breonna-taylor-decision-joe-biden-urges-action-policing-reforms/

3511616001

[https://perma.cc/AY45-TAJK].

39

116:23

(2021)

NORTHWESTERN

UNIVERSITY

LAW

REVIEW

ONLINE

Palmer,

and

her

family,

and

her

family

deserves

justice,"

Harris

commented.

121

"She

was

a

beautiful young

woman."

122

If

the

Biden

Administration

sincerely

seeks

to

hold

officers

accountable

and

plans to work

in

the

tradition

of

the

SCLC-and

I

am

hopeful

that

it

does-the

Department

of

Justice

must

bring

charges

against

the

officers who

killed

Breonna

Taylor

and

help

to reimagine

the

very concept

of

public

safety.

And

contrary

to

Daniel

Cameron's

calls

for

protestors

not

to

escalate,

protestors

must

be

willing

to

do

so

peacefully

in

order

to

ensure

that

the

Department

follows

through

on

its

responsibility

to the American

people.

Justice

can

no

longer

wait.

40

121

Brie

Stimson,

Harris,

Pence

Disagree

over

Whether

Justice

Was

Servedfor

Breonna

Taylor,

FoX

NEWS

(Oct.

8,

2020),

https://www.foxnews.com/politics/harris-pence-disagree-over-whether-justice-

was-served-for-brenonna-taylor

[https://perma.cc/MVM9-92JV].

122

Id.