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Army sides with Colorado National Guard officer reprimanded for attending Black Lives Matter protests

alan-kennedy-1.jpg
Courtesy Alan Kennedy
Alan Kennedy, a captain in the Colorado Army National Guard, was off duty and wearing civilian clothing when he joined Black Lives Matter protests in 2020.

The Army has reversed a reprimand a Colorado National Guard officer received after attending a Black Lives Matter protest in 2020. Capt. Alan Kennedy, a “white ally” to the movement, wore civilian clothing as he filmed police tear gassing crowds in Denver. Later, he wrote op-eds about his experiences and was disciplined by commanders.

In a letter dated Jan. 3, 2022, the Army Suitability Evaluation Board sided with Kennedy and ordered that the reprimand and associated disciplinary documents, which can be a barrier to career advancement, be removed from his records.

“It shouldn't take a year and a half, but this is a tremendous victory for the First Amendment and the right to protest and the right to write op-eds,” Kennedy told KUNC Wednesday.

The Army board noted that Kennedy was not in uniform or on duty when he protested.

After his op-ed accusing police of firing tear gas without provocation appeared in The Denver Post, Kennedy was summoned before commanders and told that he was flagged for an investigation. Later, he was reprimanded because he did not receive approval for the wording of a disclaimer that appeared at the bottom of the commentary.

Kennedy, a military attorney, citing documents that showed commanders complaining about much more than the disclaimer, appealed, but the Colorado National Guard declined it, adding concerns, like what if Kennedy had been arrested while protesting or “accused of rioting.”

Kennedy then turned to the Army board and made a series of arguments, including that the language of Colorado National Guard officers during the process showed bias. One general described Black Lives Matter protests as "inherently violent,” while a colonel characterized protests as something that "begin peacefully and devolve into violent clashes with the police." Kennedy argued that such statements were evidence commanders were seeking to restrict his freedom of expression.

The Army board concluded Kennedy “provided clear and convincing evidence” to show reprimands were “inaccurate, unjust, or otherwise flawed.”

“The reason I feel so strongly about this is because it is because you don't lose all of your constitutional rights simply because you take an oath to support and defend the Constitution,” Kennedy said.

The Colorado National Guard did not respond to a request for comment before deadline.

Kennedy said the Army board’s decision bodes well for his larger fight — a lawsuit in Denver federal court that is seeking to overturn the portion of Defense Department Instruction 1325.06 that his commanders cited in his reprimand. Enclosure 3, Paragraph 6 (d) bars troops from participating in off-base demonstrations for several reasons, including whether “violence is likely to result.” Kennedy is adamant that the violence he filmed in Denver in 2020 during the Black Lives Matter protest came from police.

“Despite this decision, it is still in effect,” Kennedy said. “So it's really important that the case continues because the Department of Defense has not withdrawn this regulation.”

The Army board’s decision also opens the door for Kennedy to be considered for promotion in the Colorado National Guard. That is now a moot point as Kennedy has moved to Virginia, where he works as a lecturer in public policy at William & Mary, and is in the process of transferring to the Army Reserve as a captain.

Others in the military have spoken out about race after the death of George Floyd, including Charles Q. Brown, at the time a top Black general who later became the Air Force’s chief of staff.

Update (1/6/2022): The Colorado National Guard responded after publication that they would not comment because of ongoing litigation.

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  • When demonstrators assembled on a narrow street near the Capitol building in Denver to protest the death of George Floyd last spring, Alan Kennedy joined them. He came as a “white ally,” capturing a police crackdown on his phone and then writing about what he witnessed in a guest commentary in a local newspaper. As a captain in the Colorado National Guard, he wasn’t a typical protester. His actions got him in trouble with his commanders. After months of trying to overturn reprimands, Kennedy in March filed a lawsuit in federal court claiming commanders violated his First Amendment rights.