Senior Judge Don Ash on Tuesday dismissed two charges against activists Marie Mott and Cameron Williams, leaders of last summer's racial injustice protests in Chattanooga, and sent their remaining charges to the grand jury.
Mott, Williams and six other protesters face multiple misdemeanor charges stemming from two separate July incidents: the burning of a Hamilton County Sheriff's Office flag and the blocking of an emergency vehicle.
Tuesday's four-hour preliminary hearing, during which both Mott and Williams laughed from their seats in the jury box and were admonished for using their cellphones, was not to determine guilt. It was to determine whether there was enough evidence to support probable cause - the lowest legal standard to find that someone could have committed a crime - in order to send the charges to a grand jury.
The grand jury would then take another look at the evidence and vote on whether to indict the defendants in criminal court.
In the case involving the obstruction of the Hamilton County emergency vehicle, the prosecution showed a body camera video from one of the Chattanooga officers who responded to the intersection of Market and Main streets. Protesters there were blocking all four directions of traffic and had set up a tent in the center.
A motorist, business owner and a pedestrian all complained on the video about the protesters being in the road.
Shortly thereafter, the video showed the Hamilton County vehicle pull up to the intersection on Market Street heading to North Shore with its emergency lights and sirens activated.
"That's EMS! You idiots! Somebody's in need of help!" the officer was heard shouting on the video as he approached protesters standing in front of the emergency vehicle.
The protesters did not appear to move.
At the same time, two fire trucks barreled through from Main Street to Market Street. And as the officer got closer, the EMS vehicle turned off its siren and kept its flashing lights turned on. The vehicle was not an ambulance but was equipped to respond to scenes where "advanced life-support measures" are needed, testified EMS Capt. Marc Puglise, who was driving the blocked vehicle.
Defense attorneys argued their clients may not have known to move short of an announcement and that the vehicle's lights were similar to those seen at previous demonstrations.
"There is a way," Officer Caleb Hargraves testified. "It's written on the side, which you can see several of these people are standing - were standing before they gathered in front of it it's clearly written on the side of the vehicle."
He added that police vehicles have blue lights, not red lights. And Puglise later testified that, while EMS vehicles were stationed near protests out of precaution over the summer, they were not typically visible.
"A reasonable person would see flashing lights and sirens and know that it's an emergency vehicle," Hargraves said.
Puglise said he took a photo of the people blocking his vehicle before turning around, but he didn't see any of the people in his photo in the courtroom, he testified.
Police officers testified that they identified the people they say blocked the vehicle via driver's license photos and social media posts. Asked why action wasn't taken on the spot, officers said they were outnumbered at the time.
Attorneys also argued that protesters wouldn't have known they needed to move out of the road with haste because the police department hadn't enforced pedestrian traffic laws up until that day.
Officers who testified said the department had taken the strategy of creating safe spaces for protesters to demonstrate in order to prevent loss of life and damage to property while avoiding conflict. But the department changed that approach once it started to receive complaints from citizens about blocked traffic, which officers said was that day.
Judge Ash said that, regardless, police department policy does not trump state law, which makes it illegal to obstruct traffic.
Another attorney asked Chattanooga Sgt. Billy Atwell if it was possible that the EMS vehicle was sent through that intersection "to create this charge."
"Anything is possible. That's why we play the lottery," Atwell responded after a brief pause.
With the exception of Mott and Williams' charge of inciting a riot, Ash sent all charges to the grand jury.
As for the flag-burning incident, Ash dismissed theft charges because he said he did not hear evidence that Mott or Williams were the ones who stole the sheriff's office flag from a flagpole outside the jail.
However, a sheriff's office detective Brevin Cameron testified he had seen social media posts by Mott and Williams taking responsibility for taking the flag.
In July, the Times Free Press reported that Mott took to Facebook to discuss the incident.
"I took the flag that belongs to the sheriff down from the flagpole in front of the county jail and I burned it," Mott said in a now-deleted 38-minute video.
At the time, she said she took down the flag because she "got tired of seeing that flag flying in the wind knowing that right behind that flag there are Black, brown and poor bodies being funneled into our jails. But we have white people who can openly decide to break the law and will not be cited for spreading a virus that is killing so many."
Two other charges - vandalism and reckless burning - were bound over to the grand jury after prosecutors played Miller Park security video footage showing both Mott and Williams pouring accelerant onto the burning flag multiple times.
Three other defendants - Joshua Tilford, 34, Cedric Josey Jr., 24, and Grason Harvey, 22, who all face disorderly conduct and obstruction of highway charges - also had their cases sent to the grand jury.
Two others - Gerald Cowley, 19, and Daniel Cash, 39, who face the same two charges - will have their cases heard on May 20.
The last defendant, 33-year-old Lindsay Baker, pleaded guilty to disorderly conduct on Aug. 27 and received a sentence of 30 days on probation.
In issuing his ruling, Ash referenced the countrywide protests against racial injustice sparked by last year's killing of George Floyd by a Minneapolis police officer, who was found guilty on Tuesday.
"I understand these are difficult days in our country," Ash said. "It's not just today - it's been difficult days since the 1600s.
"And I certainly agree with the people's right to protest. I think that's the foundation of our country. And I also understand, I think, racial tensions ... But all we can do, I think, is try to be better. I think all of us need to step back - I've tried to step back and think about my life and my biases and my prejudices, and how do I deal with those and get over those. And I think we, as a country, need to do that.
"My ruling today, many of you will not be pleased with that," he added. "But I want you to understand that I hope with your excellent counsel that you will continue to pursue your defenses on this."
Contact Rosana Hughes at 423-757-6327, email@example.com or follow her on Twitter @HughesRosana.