First a Utah activist faced life in prison after she allegedly bought red paint used at a protest. Now a Utah state senator is under investigation for giving her 10 bucks.
A controversial charging enhancement, handed down by a Salt Lake City district attorney this month, could mean life sentences for protesters accused of criminal mischief and rioting at a July protest over a fatal police shooting. District Attorney Sim Gill contends that, because the protesters allegedly acted in a group of two or more people, their mischief charges are subject to a “gang” enhancement. One of those protesters, Madalena McNeil, is accused of buying red paint that was splashed on the outside of Gill’s office building.
Now police have subpoenaed McNeil’s Venmo account and filed an affidavit targeting state Senator Derek Kitchen—who did not attend the protest in question—over a $10 Venmo payment with the caption “paint” the previous month. It’s the latest bizarre turn in a series of crackdowns against protesters following the death of George Floyd in Minneapolis police custody in May, with experts suggesting this particular saga was veering toward a caricature of law-enforcement overkill.
On June 27, activists poured red paint on a Salt Lake City street in protest of the fatal police shooting of 22-year-old Bernardo Palacios-Carbajal. After that action, McNeil tweeted that she was soliciting donations to help compensate organizers for paint. Kitchen is accused of sending her a Venmo payment the following day.
The charges against McNeil and her co-defendants stem from a subsequent protest, on July 9, that took place when District Attorney Gill declined to charge the officers involved in the shooting of Palacios-Carbajal. Protesters allegedly splashed paint on Gill’s office building and broke windows, although McNeil is not charged with those acts.
Kitchen, the state’s Senate minority caucus manager, was one of the plaintiffs in a court case that led to the national legalization of gay marriage in 2015. He was elected to the state Senate in 2018. In a statement on his Instagram, Kitchen said he did not participate in either the June 27 or the July 9 protest.
“It is a matter of record that I support criminal justice reform. I love Salt Lake City and Utah, and I believe in progressive activism,” Kitchen wrote. “In this instance I responded to a solicitation on social media for financial support for what I understood would be a peaceful rally for justice.
“I gave a small contribution to support the cause of justice, but I wasn’t involved in the planning or organization of the event. I did not attend the protest and have only seen press reports of what happened. I will always advocate for the constitutional right to peaceful protest but I don’t condone violence or vandalism.”
Kitchen was not immediately available for comment on Thursday.
Unsanctioned street paintings have been a bipartisan hallmark of recent protests, including in Salt Lake City. As cities have increasingly permitted artists to paint “Black Lives Matter” on streets in recent weeks, opponents in New York City and D.C. have splashed paint on those paintings as a sort of “All Lives Matter” response. Police supporters in Tampa, Florida, also broke the law when they painted an unlicensed “back the blue” mural in city streets, as did people who poured paint on the unsanctioned mural. (Police arrested three of the people who allegedly damaged the unlicensed Tampa mural, but not the mural painters.)
Salt Lake City Police—not Gill—have implicated Kitchen in the $10 donation. A Gill spokesperson told The Daily Beast that the office had not been presented with evidence against Kitchen and that, even if it were, Gill’s friendship with the state senator would pose a conflict of interest that would likely force the case onto a different prosecutor. Salt Lake City Police did not immediately respond to a request for comment.
However, Gill is facing controversy for his charging decisions against activists like McNeil for their alleged role in the July 9 protest.
Shima Baradaran Baughman, associate dean of Faculty Research and Development at Salt Lake City’s Utah University, said she’d never seen the gang enhancement used against protesters. Although criminal mischief charges are common for vandalism, she described Gill’s gang approach as, at the least, a waste of resources—one consistent with overzealous prosecutions across the country.
"More broadly, it is important to remember that prosecutors have almost unlimited discretion in charging defendants,” Baradaran Baughman told The Daily Beast. “There are few constitutional checks on prosecutors. Sadly, prosecutor elections are often a sham with most going unopposed and most being reelected.”
McNeil told The Daily Beast the $10 payment was revealed after police went to Venmo, an app-based transaction company, with a search warrant that revealed payments to and from her account. Several other unnamed people were found to have given her small donations, too, the Deseret News reported.
McNeil alleged that the search of her Venmo was due to investigators attempting to justify the use of the controversial gang enhancement. For his part, Gill previously told The Daily Beast the measure can be used broadly against people accused of a crime involving two or more defendants.
“I think the district attorney and law enforcement is very committed to justifying use of the gang enhancement because they have received so much pushback on it,” McNeil told The Daily Beast. “I think they are related, and it’s part of a bigger message to people to not associate with people who might even be accused of protesting.”
Gill is a Democrat, but has found himself in the political wilderness over the strange case. Other local Democrats, as well as a Republican state senator, have come out against the gang enhancements levied at protesters. That Republican, state Sen. Daniel Thatcher, has said he didn’t believe in scrapping the enhancements altogether (a move McNeil and others on the left favor), but at least curbing them so they couldn’t be used in what Thatcher described as a retaliatory manner.
“There is a benefit to the public when we look at the risk and the threat posed by an offender,” he told the Salt Lake Tribune. “Some offenses are simply more dangerous and deserve a longer sentence. But the statute is intended to stop organized crime and criminal enterprises, not to punish people who have offended you.”
Although Gill issued the charging enhancement, the handling of the case has since been passed to a special prosecutor, due to Gill’s potential conflict of interest over the protesters’ alleged role in damaging his office building. That prosecutor, an ex-judge named Dane Nolan, could not be reached for comment.
Some of the more reliably anti-protester forces in the state, however, have championed the use of gang enhancements against the protesters and called for their expansion against apparent sympathizers like Kitchen—including at least one police union.
Utah’s Fraternal Order of Police issued a press release on Wednesday calling for Kitchen to be named a “co-conspirator” in the case and charged with a first-degree felony for the $10 “of his tax payer salary.”