Judge: Abortion protester's lawsuit against Idaho State Police troopers can go to trial

BOISE, Idaho — Nearly three years after her arrest on the steps of the Idaho Capitol, abortion rights protester Avalon Hardy said she is still seeking justice for what she alleged were unlawful actions taken by law enforcement.

She won some key decisions in her legal quest earlier this year, while also seeing some of her case dismissed.

Hardy sued the Idaho State Police members involved in her arrest after an Ada County magistrate judge dismissed her battery charge. The judge said video evidence and a state trooper’s own testimony contradicted the official police version of events.

In the most recent court decision, a district judge denied significant portions of a police petition to receive qualified immunity — meaning government officials can’t be sued — in Hardy’s lawsuit.

Chief U.S. District Judge B. Lynn Winmill ruled Jan. 25 that ISP Lt. Michael Kish and Sgt. Troy DeBie can be brought to trial for allegations Hardy has leveled, including unlawful arrest, retaliatory arrest, reckless or deliberate suppression of evidence, deliberate fabrication of evidence and malicious prosecution.

The trial in Hardy’s civil rights lawsuit is scheduled to begin in August.

Hardy was one of six people who had some or all criminal charges dropped after being arrested in Boise between May 2022 and January 2023 for protesting the U.S. Supreme Court’s decision to overturn Roe v. Wade.

“We have seen in Boise, and across the country, increasing efforts to suppress lawful and effective protest, and that has included violent arrests of protesters,” Ritchie Eppink, Hardy’s attorney, told The Idaho Statesman in a phone interview. “And that trend should concern everyone.”

Her case began in June 2022 when Hardy was protesting to counter an anti-abortion group at the Statehouse.

Video footage posted to YouTube by a member of the far-right Idaho Liberty Dogs group showed Kish coming between Hardy and an anti-abortion protester as they were yelling at each other. Kish appeared to put his hand out to hold Hardy back as she shouted expletives at him and the woman. Friends then grabbed Hardy’s arms as Kish shouted for someone to “get her out of here.”

As Kish turned his back, Hardy bumped her shoulder against his back in the tightly packed crowd, while apparently trying to leave.

Sometime later, Idaho State Police Cpl. Sam Ketchum, who had been watching the event from a remote video stream at a command post, called Kish to tell him that he planned to order the arrest of Hardy for battery of an officer, with Kish as the victim.

Kish, according to a court memorandum, simply replied, “OK.”

(Ketchum settled with Hardy in April 2024 for $21,389 for his involvement in her arrest, according to Eppink. Ketchum was promoted to captain in June 2022 and retired in November 2024.)

Idaho State Police Sgt. Troy DeBie, who did not see the interaction between Kish and Hardy, wrote the police report, which purported that Hardy shoved Kish “repeatedly with her hands” and then “continued to shove him with her hands and chest.”

Kish approved DeBie’s report. While on the stand in court, however, he disagreed with some of it, testifying that he didn’t remember Hardy shoving him. It was the first time Kish expressed that opinion publicly, despite months of court hearings in the case.

That and a video footage review led Magistrate Judge Michael Dean to throw out the case. Winmill reviewed evidence in Hardy’s lawsuit and agreed with Dean, saying it was “not at all clear” that the police version of events was accurate.

“The videos are far from clear in showing that Ms. Hardy did anything that would meet this statutory definition (of battery,)” Winmill wrote. “A reasonable jury could watch the videos submitted by the defendants and conclude that no probable cause existed — that Ms. Hardy and Lieutenant Kish accidentally collided in the middle of a crowd.”

Winmill said “a reasonable jury could conclude that had the police report accurately reflected the interaction” between Hardy and Kish, a prosecutor might never have charged her.

Ultimately, Winmill ruled that Kish could be tried for unlawful arrest, retaliatory arrest, reckless or deliberate suppression of evidence, deliberate fabrication of evidence and malicious prosecution.

DeBie could go to trial for deliberate fabrication of evidence and malicious prosecution for his role in the inaccurate police report, according to Winmill’s ruling.

“I think those are serious and significant claims, and we’ll be looking forward to presenting all this for a jury to render a verdict in the case,” Eppink told the Statesman.

Hardy told the Statesman in a message that she was “very happy” with the court’s decision and hopes the officers will be “held accountable for their actions.”

Kish, DeBie and the Idaho State Police declined to provide statements or interviews with the Statesman, with ISP spokesperson Aaron Snell citing ongoing litigation as the reason.

Not all of Winmill’s decisions in the case went in Hardy’s favor.

The judge granted summary judgment for police regarding other Hardy allegations, including use of excessive force and accusations against two troopers who, the judge concluded, had assisted in the arrest at the direction of another officer “in good faith that the order was lawful.”

Five other abortion-rights protesters were arrested between May 2022 and January 2023 in Boise after the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision. Like Hardy, four went through a significant amount of court hearings and waiting periods, only to see their charges dropped.

—Jessica Kumple was arrested and charged with disturbing the peace at the same event Hardy attended. A judge dismissed her charges in February 2023.

—Idaho Abortion Rights founder Kimra Luna was arrested in May 2022 for using a megaphone during a march at a protest in downtown Boise. They were charged with resisting or obstructing officers and a noise prohibition infraction. Both charges were dismissed in August 2022 by the city’s prosecutor.

Luna initially filed a tort claim against police, but told the Statesman that they decided not to move forward with it. “It’s too much stress for me to do so,” Kimra said. “It was very traumatizing, and I don’t want to be stuck in a lawsuit for years.”

—Ashlee Worle was similarly arrested while using a megaphone at a counterprotest during the January 2023 Idaho March For Life. She was charged with resisting or obstructing officers and noise prohibitions. The prosecutor dismissed those charges in March 2024.

—Tiffani Deem was arrested on suspicion of resisting or obstructing officers while checking on Worle as she was being apprehended. The prosecutor dismissed the charge in October 2024.

Kristi Jordan became the only abortion protester with a charge that stuck.

She was arrested while participating in the same march as Luna. Jordan and her son walked into the street to “expand their protest march,” according to a tort claim. Jordan said in her claim that police tried to pull her off the street after she refused their request that she return to the sidewalk. She was charged with resisting or obstructing officers and battery of an officer.

The prosecutor dismissed the battery charge in July 2022, but a jury found her guilty of resisting in February 2024. A magistrate judge rejected her appeal on the resisting charge, but she has since petitioned for appeal to a higher court.

Jordan likened her case to the recent arrest of a woman at a town hall in Coeur d’Alene.

“In Idaho, constitutional rights, especially free speech, seem to be reserved for those who align with the Republican Party,” Jordan told the Statesman in an email. “I will continue to appeal my resisting arrest charge because this is bigger than me. It is about the erosion of free speech in Idaho, particularly for those with progressive views.

“Authorities will do just about anything to silence those who challenge the status quo, and I am not surprised that when six armed officers arrested me for jaywalking at a protest, no one intervened.”

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