Josie Mulvihill was still a senior at Norwalk High School when she was arrested for touching the arm of an Iowa State Patrol (ISP) officer during a protest at the Iowa State Capitol in April. The 18-year-old was charged with assaulting a law enforcement officer, even though Officer Dylan Hernandez said Mulvihill “pushed my arm in an attempt to gain my attention,” in the criminal complaint he filled out after arresting Mulvihill.
“Lucas Taylor, Mulvihill’s lawyer, maintained that it’s not illegal to simply touch a police officer to get his attention,” according to the Des Moines Register’s coverage of Mulvihill’s two-day-long assault trial. The Polk County jurors agreed, finding her not guilty on Tuesday.
Mulvihill said she touched Hernandez’s arm to get his attention as he and ISP Officer Dalton Grell were walking away from her after she asked for their names and badge numbers. Other protesters confirmed Mulvihill’s account, and even Hernandez’s criminal complaint supported it.
Most people think of an assault as an “act which is intended to cause pain or injury,” or an “act which is intended to place another in fear of immediate physical contact which will be painful,” or even displaying “in a threatening manner any dangerous weapon toward another,” to cite three of the definitions of assault in the Iowa Code.
Unable to allege any of those things, prosecutors relied on the section of Iowa Code that defines assault as an act “which is intended to result in physical contact which will be insulting or offensive to another.”
Assistant Polk County Attorney Thomas Tolbert argued that Mulvihill was showing disrespect for law enforcement by touching Hernandez, while asking for his name and badge number, information any member of the public is entitled to. Tolbert also claimed that the 18-year-old touching Hernandez made him lose his balance.
A video posted on social media by another protester captured almost the entire incident, and Hernandez does not appear to lose his balance as a result of being touched. However, the video does clearly show Hernandez forcing Mulvihill to the floor as he handcuffs her.
I just spoke to Ashley Dorelus.
She tells me there was an arrest during what was suppose to be a peaceful protest at the Iowa State Capitol this afternoon.
She sent me this footage: pic.twitter.com/Cf64tMm4nT
— Tisia F. Muzinga (@TisiaMuzinga) April 8, 2021
“He tackled me to the ground,” she testified during the trial. “He put his knee on my back.”
Tolbert tried to persuade jurors by showing them a different video.
“To show Mulvihill allegedly ‘does not like law enforcement,’ the state emphasized surveillance video presented during trial that shows Mulvihill and Hernandez having a conversation at a police station after her arrest,” the Register reported. “Mulvihill asks Hernandez why he wanted to be a police officer, then asked why he didn’t have bigger aspirations for himself.”
The jury did not find the after-the-fact video persuasive.
Mulvihill had been at the Iowa State Capitol as part of the “Kill the Racist Bills” protest organized by Advocates for Social Justice, the Cedar Rapids group that has led demonstrations against systemic racism by working with Cedar Rapids officials on police reform.
The bills being protested were versions of the “Back the Blue” bill — which increased immunity for police from being held legally accountable for their actions, while increasing penalties for many protest-related offenses — and the “Divisive Concepts” bill, which limits the sort of training schools and local governments can provide on issues involving race and gender.
The Republican-led Iowa Legislature later passed both bills, and Gov. Kim Reynolds signed them into law.
Mulvihill’s acquittal is just the latest in a long string of failures by the Polk County Attorney’s Office to obtain convictions when prosecuting people arrested during protests for social justice and against police violence last year. In addition to repeated acquittals, prosecutors have also dropped the charges against many protesters rather than bring them to trial.
Mulvihill’s acquittal also came on the same day a federal judge approved a settlement between ISP and five protesters it had banned from the Iowa State Capitol grounds. In the settlement, ISP rescinded the bans, which the judge has already enjoined as unconstitutional, agreed not to ban protesters from the Capitol grounds in the future for engaging in protest actions protected by the First Amendment and agreed to provide officers with further training on the First Amendment.
The state also agreed to pay each of the protesters $5,000 in compensation, and $45,000 to cover legal fees.