Captain sues Colorado National Guard’s top brass over First Amendment right to protest

On May 30, Alan Kennedy, a captain in the Colorado National Guard, joined thousands of Black Lives Matter protesters in Denver to speak out against police violence and racial injustice. Like other peaceful protesters, he said, he was tear-gassed by police.

His commander, Maj. Richard Sandrock, said he was concerned Kennedy attended the protest. It was the third day of unrest in which Denver police fired tear gas, pepper balls, flash bangs and sponge bullets at protesters. By attending the protest, Sandrock said, Kennedy violated a Defense Department policy that limits the rights of military members to participate in protests where “violence is likely.” On July 12, Sandrock reprimanded Kennedy. 

Kennedy said he was shocked. He said the reprimand blemished his military record and was later used to block his promotion, effectively penalizing him for exercising his First Amendment rights while he was off-duty and not in uniform. Fearful of further punishment, Kennedy stopped protesting and writing op-eds. Citing these concerns, he spent months trying to get his commanders and generals to retract the reprimand. 

They didn’t. So he took them to court.

In a lawsuit filed in the district court in Denver on Tuesday, Kennedy requested a federal judge to declare that several of Colorado National Guard’s top commanders and generals violated his First Amendment rights to freedom of speech, assembly and the press. He’s also seeking an injunction to block enforcement of a provision in the Department of Defense instruction restricting military members from participating in protests as unconstitutional. He’s not seeking any monetary damages. Among the named defendants are Laura Clellan, adjutant general of the Colorado National Guard, and Lloyd Austin, the U.S. secretary of defense.

“Racism is real, peaceful protest is patriotic, and constitutional rights must be protected,” wrote Kennedy, a 36-year-old judge advocate who is representing himself in the lawsuit with help from two criminal and military law attorneys.

The lawsuit could set a precedent for the First Amendment rights of the approximately 440,000 active and reserve members in the Army and Air National Guard who abide by rules and directives designed in part to maintain discipline and order. 

“You don’t lose all of your constitutional rights simply because you join the military. That’s a myth,” Kennedy told Newsline. “This (lawsuit) raises constitutional questions that the courts have never addressed.”

A spokeswoman for the Colorado National Guard declined to comment on Kennedy’s constitutional allegations. In an email to Newsline, Lt. Col. Elena O’Bryan said the “matter is still under review, and the Colorado National Guard will not comment on the specifics of this case in order to protect the privacy of the Soldier.”

Unclassified documents and emails that Kennedy shared with Newsline show that rather than answering questions about his constitutional rights, his commanders and generals viewed such grievances as “disrespectful” and penalized him for speaking out.

Kennedy first learned he was being investigated after he wrote an op-ed in The Denver Post about getting tear-gassed. Frustrated by the investigation and his chain of command’s refusal to answer his questions regarding his constitutional rights, he penned an op-ed in Newsline dubbing the Colorado National Guard’s investigation as “constitutionally appalling.” 

‘My job is to protect this force’

On June 18, Lt. Col. Christopher Lowman, an investigating officer, cleared Kennedy of any policy violations related to the protest and Denver Post op-ed except for the “minor violation” of an insufficient disclaimer in his Denver Post op-ed. Kennedy’s op-ed included a disclaimer that “the views expressed are his own.”

But on July 12, Sandrock, Kennedy’s commander, overruled Lowman’s recommendations and reprimanded him for participating in the protest and writing the op-ed. Kennedy appealed the reprimand without success.

“While I understand and believe that you had no violence in your heart that day, my job is to protect this force,” said Col. Charles Beatty, the Guard’s chief of staff, in an Aug. 14 response to Kennedy’s appeal. Beatty said the peaceful protests often “devolved into violent clashes with the police … and property damage perpetrated by attendees on Denver businesses, including what appear to be intentional fires.”

Kennedy argued the violence that ensued was the very violence by police he was protesting. According to a December report by the Denver Office of the Independent Monitor, which watchdogs Denver’s law enforcement agencies, the police violated the city’s use-of-force policy during last summer’s protests. 

Beatty said Kennedy’s argument missed the point: “As a service member, you should have never placed yourself in that position and ample evidence existed prior to your attendance that clearly suggested these results were objectively likely.”

Kennedy disagrees. He said violence by the government is something Americans should never accept or expect.

“We have a responsibility to protest that violence. And if the police respond with violence, that’s on them, not on us,” Kennedy told Newsline. He added, “Protesters should not be penalized for the unconstitutional actions of their government. Just because the police acted unconstitutionally two days before should not be a basis for restricting First Amendment activity.”

Kennedy continued to raise constitutional concerns about his reprimand. In early June, Kennedy emailed top generals alleging “a pattern of unconstitutional suppression of free speech and due process, retaliation, even harassment.” He also said commanders were “frivolously blocking my promotion.”

Speaking out backfired. Two generals ordered him to stop contacting them. And on Sept. 11, Brig. Gen. Douglas Paul, the Guard’s assistant adjutant general, reprimanded Kennedy again for seeking to “intimidate” his chain of command into refraining from investigations and making “numerous false statements.”

“You fail to understand the most basic premise of military service: subordination of the self to the chain-of-command, including, in some instances, limitations on one’s rights,” Paul wrote in the reprimand.

On Dec. 5, following Kennedy’s efforts to rebut the reprimand, Paul doubled down and formally submitted a reprimand to Kennedy’s record in Washington D.C., citing an Aug. 19 memo by Col. Chris McKee, an investigating officer, that said Kennedy violated the Joint Ethics Regulation and the Colorado Code of Military Justice when Kennedy made “disrespectful” statements about his chain of command in the Newsline op-ed and emails to generals. McKee’s memo also said military employees cannot share personal opinions in the press when referring to their positions as a military employee.

“(Department of Defense) employees retain their First Amendment right to express their personal opinions absent any connection to DoD,” McKee wrote.

60 days to respond

Eugene R. Fidell, a military law expert and former judge advocate who read Kennedy’s complaint on Tuesday, told Newsline he is concerned by Colorado officials’ apparent unwillingness to treat the First Amendment as something they actually have to implement. He said all public officials have an obligation to uphold the Constitution. Complaining about this, as Kennedy did, he said, is not an act of disloyalty.

“When a uniformed lawyer doesn’t speak up for himself, that would be a sad day,” Fidell said. He added, “Sunlight is said to be the best of disinfectants. That’s what Louis Brandeis wrote in 1913. My reaction is it still is.”

Kennedy said his punishment reveals a double standard. He said former 18th Judicial District Attorney George Brauchler, who serves as a part-time military judge with the Colorado National Guard, regularly publishes op-eds in the Denver Post in which he has criticized Gov. Jared Polis, the state’s commander in chief. Brauchler, who charged protesters of the killing of Elijah McClain last summer, criticized Polis’ plan to vaccinate prisoners — which Polis later retracted — and pandemic-related restrictions. He has described Polis’s leadership as “weakness and political opportunism.” Brauchler told Newsline he has never run afoul of any of the Colorado National Guard’s guidelines, rules or dictates. He said his views did not represent the Guard and he declined to comment on Kennedy’s dispute. 

The state and federal military officials named in the lawsuit have up to 60 days after receiving Kennedy’s complaint to respond, according to a summons issued by the federal court on Tuesday.

The courts have generally ruled against military members who raise concerns over their constitutional rights. Several cases have involved military members who were court martialed for protesting the war in Vietnam. In the 1974 case Parker v. Levy, for example, the U.S. Supreme Court ruled that the character and mission of the military requires a different application of constitutional protections. And in the 1980 case Brown v. Glines, which challenged a Defense Department policy limiting military members’ right to circulate political petitions, the Supreme Court ruled the spread of such information posed a “clear danger to military loyalty, discipline, or morale.” 

Kennedy said such limits may be legitimate in combat, but not when military members are not on orders or on duty or in uniform.

Kennedy is politically active. He unsuccessfully ran for a seat in the state Senate in 2018. He served as a presidential elector for President Joe Biden and Vice President Kamala Harris in 2020. He also speaks out. After a tour in the Middle East, he submitted a video op-ed to the New York Times criticizing former President Donald Trump’s decision to withdraw troops from northern Syria as “un-American.” He said the decision cleared the way for the ethnic cleansing of Kurdish allies. He looks up to his family members who fought in World War II, including his grandfather and great uncle, Milt, who he said was blacklisted as an “anti-fascist” after he returned home. He said one of the reasons he joined the military was to fight fascism. 

“I took an oath to support and defend the Constitution of the United States and I take that oath extremely seriously,” Kennedy said. “If constitutional rights can be violated with impunity, then the military is simply people with guns.”

“We have to be better than that,” he said. “We are better than that.”