HENNEPINMay / June 2017 Volume 86 Issue 3 LAWYER Published in the 2017 March/April RACE AND JUSTICE Official Publication of the Hennepin County Bar Association issue of the Hennepin Lawyer, a

FOCUS ON membership publication of the RACE AND JUSTICE Hennepin County Bar Association.

On the Cover Used with permission. Hennepin FOCUS ON County Bar RACE AND Foundation JUSTICE BOARD OF DIRECTORS 612-752-6000Disruption [email protected] of Business as Usual: Protest Rights and Public Policy Challenges in 2017

By Benjamin Feist and Teresa Nelson

In recent years, protest demonstrations, current law around the right Many of these demonstrations have been led movements around the nation to protest, and recent efforts at the by and in support of marginalized communities Legislature to respond. of color. The most notable protests, until the have included communities of inauguration of President Donald Trump and the color organizing and demanding The Role of Protest in resulting Women’s March, have been in response racial justice and equality. Many American Life to acts of police violence. prominent protests have been in Minnesota Protests in 2014 response to high-profile police Acts of civil disobedience are common throughout American history. One of the most On November 25, 2014, a grand jury decided not shootings of unarmed black famous was the Boston Tea Party. Of course, to indict the officer who shot Michael Brown, men. In order to draw sustained public protests involving anti-slavery, universal leading to protests in Minnesota and many other suffrage, civil rights, anti-war, LGBTQ rights, attention to these issues, states. Hundreds of protesters spontaneously and various foreign policy positions continued organizers often use disruptive blocked Highway 55 in to bring in that mode. Although those historical protests prolonged attention to the issue. Despite tactics inconveniencing travelers may not have garnered universal public support heightened emotions, the protest was peaceful and other members of public. at the time, we now celebrate many of them and did not result in any arrest. as important historical turning points. More Particularly since 2014, a number of individuals recently, and Standing Rock Only a week later, a grand jury in New York from across the country have tragically become have brought people together in protest. refused to indict the officer involved in the killing household names: Michael Brown, Eric Garner, of Eric Garner, another unarmed black man. Jamar Clark, and Philando Castile, to name just Recent Protests in Minnesota Outrage over both grand jury decisions led to a few. The events leading to their deaths sparked a Black Lives Matter rally and peaceful protest spontaneous and prolonged demonstrations. Minnesota has seen an historic amount of that blocked Interstate 35W in Minneapolis for This article discusses the issues involved in these activism and protest in the last several years.

HENNEPIN LAWYER MAY/JUNE 2017 13 RACE AND JUSTICE over an hour. State Patrol squad cars kept traffic when he was shot. However, the officers argued Protests in Response to the at bay and, again, nobody was arrested. that Clark was not handcuffed at the time of Shooting of Philando Castile the incident and that he had grabbed a gun Days before Christmas in 2014, Black Lives during the scuffle. On July 5, 2016, Philando Castile was fatally shot Matter organized a demonstration of roughly by St. Anthony police officer, Jeronimo Yanez, 2,000 people at the (MOA) The day after Clark’s death, around 300 during a traffic stop in Falcon Heights. Castile’s in Bloomington. The demonstration disrupted protesters spontaneously shut down Interstate fiancé, Diamond Reynolds, was in the car with holiday shopping as mall authorities decided 94 in Minneapolis for several hours. The her 4-year-old daughter and live-streamed the to close stores in one part of the mall. The demonstrators sought “Justice for Jamar” and immediate aftermath on Facebook, drawing MOA maintained that it is a private property immediate release of any video of the incident. national outrage over the incident. Days later, with a policy against any demonstration or The Minnesota State Patrol arrested and booked approximately 300 protesters shut down protest. Organizers and participants insisted 42 people, including eight juveniles, after they Interstate 94 west of downtown St. Paul for that demonstrating, even if it created an refused to clear the area. This group received several hours to draw attention to the shooting inconvenience to shoppers, was necessary to misdemeanor citations for unlawful assembly and continuing racial injustice in Minnesota. draw attention to the issue of police violence and obstructing the freeway. Early in the protest, officers diverted traffic off that inconveniences communities of color across I-94 at Lexington Avenue. After a few hours of America. Protesters demonstrated for a half- Meanwhile, protesters set up an encampment peaceful protest, police reported some of the hour in the rotunda before Bloomington Police in front of the Minneapolis Police Department’s protesters began to throw bottles, rocks, and (along with police officers from numerous other Fourth Precinct in North Minneapolis, which fireworks. Black Lives Matter organizers stated agencies), clad in riot gear, dispersed the crowd, lasted for 18 days. The protesters sought release that the aggressors were not affiliated with arresting 25 people. of the video and prosecution of the officers the group. Dozens of officers in riot gear used involved in the shooting. From time to time, smoke bombs, tear gas, and pepper spray to The city of Bloomington prosecuted a number tensions peaked and protesters clashed with eventually disperse the crowd. St. Paul Police of organizers and participants in the MOA officers in riot gear who used pepper spray to stated that approximately 21 officers were injured demonstration. Prosecutors targeted 11 disperse the crowd. Police Chief Janeé Harteau in the event.³ The police eventually arrested 102 organizers with misdemeanor charges of claimed that the weeks of protest caused people who were involved in the incident, and aiding and abetting trespass, aiding and abetting thousands of dollars’ worth of damage and cost 47 of them were charged with third-degree riot, unlawful assembly, and aiding and abetting the Minneapolis Police Department $750,000 a gross misdemeanor, as well as misdemeanor disorderly conduct. Nearly a year later, Hennepin in overtime pay. On December 3, the site was public nuisance and unlawful assembly. In County Chief Judge Peter Cahill dismissed all cleared by the police. While most protestors left January 2017, Ramsey County Judge Tony Atwal charges against the organizers, leaving minor peacefully, eight people were arrested without threw out the riot charges based on a lack of trespass charges against just 17 individual incident for not complying with the order. probable cause.4 protesters..1 Later in December, Black Lives Matter announced Protesters also camped out in front of the it was planning a demonstration at the MOA Protests in Response to the Governor’s Mansion on Summit Avenue in for the second year in a row. The notice drew Shooting of Jamar Clark St. Paul for several weeks after the Castile immediate criticism and an unsuccessful legal shooting. The police eventually arrested over action by the MOA in an effort to prevent the Minnesota saw its next round of high-profile 70 demonstrators for allegedly blocking traffic demonstration from happening.² On December protests in response to the shooting death of and refusing to leave the area. 23, hundreds of protesters arrived at the MOA; Jamar Clark by Minneapolis Police in November however, most quickly exited and headed to 2015. This shooting sparked additional the nearby Minneapolis-St. Paul International controversy because it was witnessed by Airport. There, protesters disrupted light rail several members of the public and was at least traffic to the terminals and blocked freeway partially captured on video by a number of access in front of the airport. Fifteen people sources. Several witnesses claimed Clark was were arrested at either the mall or the airport handcuffed and not struggling with the officers for trespassing or obstruction of justice. PROTEST IN

November 25, 2014 December 4, 2014 December 20, 2014 November 2015 November 2015 A grand jury decides A grand jury refuses to A BLM protest with Over 300 protesters Dozens of QRWWRLQGLFWWKHRIÀFHU indict a New York City about 2,000 people shut down I-94 in protesters set of an who shot Ferguson, SROLFHRIÀFHULQWKH demonstrates at the response to the encampment outside Missouri, teenager death of Eric Garner. Mall of America. shooting of Jamar of the Fourth District Michael Brown. A Black Lives Matter 7ZHQW\ÀYHSHRSOH Clark. Forty-two police precinct in Hundreds of protestors (BLM) rally shuts down were arrested, but people were given north Minneapolis for block Highway 55 I-35W in Minneapolis. most charges were misdemeanor 18 days. Eight people in Minneapolis. This No arrests were made. later dropped. citations. were arrested for not peaceful protest complying with a did not result in any police order. arrests. 2014 2014 2014 2015 2015

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Women’s March Permits and Permissible for this type of “spontaneous” demonstrations 1 Restrictions held in reaction to current events.¹ The day after the inauguration of President Liability for the Crimes of Others Trump, millions of protesters across the United Cities, counties, and the state of Minnesota all States and all over the world rallied together have the ability to enact regulations governing Because “[t]he right to associate does not lose all in the Women’s March. It is estimated that speech and protest activities. Although not constitutional protection merely because some 90,000 to 100,000 protesters attended the required, most jurisdictions have enacted “time, members of the group may have participated march in St. Paul that ended at the Minnesota place, and manner” regulations that include in conduct or advocated doctrine that itself is Capitol. By all accounts, the police response to advance permit requirements applying to all but not protected,”12 demonstrators should not face the Women’s March was accommodating and small demonstrations that do not block roads criminal charges for the acts of others or based respectful, despite the enormous scale of the or sidewalks. For example, in Minneapolis, a on their proximity to or association with others event, which vastly exceeded the organizers’ demonstration or march of any size that stays on who have committed or threaten to commit acts expectations (and most likely the permits). the sidewalks and does not interfere with traffic of violence. Where acts of violence happen in The sheer number of protesters in attendance can proceed without a permit.5 In contrast, the proximity to constitutionally protected activity, caused a major disruption of traffic and light rail city of St. Paul requires any demonstration of precision is necessary to ensure that only those transit in St. Paul as protesters spilled out across more than 25 people to obtain a permit.6 the rail tracks and blocked transit platforms. responsible for the violence are held accountable for it. Put simply, the government may not However, unlike the Black Lives Matter protests, The First Amendment allows the government restrict protected speech of a person not shown the Women’s March was attended by a largely to establish narrowly drawn “time, place, and to have committed any unlawful conduct. white crowd and its anger was directed at the manner” restrictions on the exercise of First recently elected President rather than at law 7 Amendment rights. Those restrictions must be Vagueness and Overbreadth enforcement’s treatment of communities of content neutral and must not operate in a manner color. that allows a permit to be denied because the The right to due process requires prohibitions event is controversial or will express unpopular on speech to be clearly defined or they are void Current Laws Relating to views.8 The government must also ensure for vagueness. The statute must provide an that the restrictions are tied to a significant Protests individual with “fair notice that his contemplated government interest, and they must not grant conduct is forbidden by the statute” and must unbridled discretion to government officials and The right to free speech is a cornerstone of our not afford the police “unfettered discretion” police to decide what conditions to impose on democracy. Free speech often involves protest, which “encourages arbitrary and erratic arrests protest. Consequently, time, place, and manner and it can include raised voices, anger, and the and convictions.”13 When criminal penalties are regulations requiring advance permitting airing of grievances. The Constitution firmly associated with speech and expressive conduct, must include “narrow, objective, and definite protects protests even when—and especially clarity is even more critical so as to minimize standards to guide the licensing authority.”9 when—they stir anger, question preconceptions, the risk of self-censorship and to prevent officials challenge government policy, and induce from enforcing criminal laws on demonstrators dissatisfaction with the status quo. America’s Right to Spontaneous in an ad hoc fashion. robust tradition of free speech allows us all to Demonstrations effect change by making our voices heard. In In addition, regulations on speech may not fact, law enforcement agents have an affirmative The First Amendment would be meaningless “burden substantially more speech than is duty to ensure that the rights of protesters and if it did not allow people to freely demonstrate necessary to further the government’s legitimate the press are protected. or protest in an immediate reaction to current interests.”14 The U.S. Supreme Court has made news. As Justice John M. Harlan II noted, “It it clear that burdens on protected speech is often necessary to have one’s voice heard should be avoided, even if that means that some promptly, if it is to be considered at all.”10 Courts unprotected speech goes unpunished.15 Thus, a have repeatedly held that regulations, including law that is intended to ban unprotected speech is advanced permitting requirements for marches not valid if it applies so broadly that it prohibits or MINNESOTA and demonstrations, must include an exception chills a substantial amount of protected speech.

December 23, 2015 July 2016 July 5, 2016 January 21, 2017 Black Lives Matters Protestors camped In response to the shooting of Philando Over 90,000 protestors announces plans to out in front of the Castile, over 300 protestors shut down gathered in Saint Paul again protest at the Mall Governor’s mansion for I-94 west near St. Paul. Police reported for one of several of America. However, several weeks. Over 70 that the protest turned violent, while Women’s Marches hundreds of protestors protesters were arrested organizers said the aggressors were across the country. The quickly exited and headed IRUEORFNLQJWUDIÀFDQG not part of the group. Over 100 people protest was a majority towards the Minneapolis-St. refusing to leave the were arrested and 47 were charged white crowd and Paul International airport to area. with third-degree riot. In January 2017, peaceful. No arrests continue protesting. Fifteen charges were thrown out on lack of were made. people were arrested probable cause. either at the mall or airport. 20152016 2016 2017

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of constitutionally entering, exiting, or on a trunk highway or that “IN SHORT, THE BILL GIVES THE protected speech. is entering or exiting an airport.”18 It similarly GOVERNMENT THE ABILITY TO The bill gives the creates a gross misdemeanor for acts that restrict government absolute passenger access to a transit vehicle. H.F. 1066 DISTINGUISH BETWEEN FAVORED discretion on whether would amend Minnesota’s public nuisance law SPEECH AND DISFAVORED SPEECH to bring an action to by making obstruction of a controlled access recover costs, and, highway or public highway within airport BY IMPOSING CIVIL PENALTIES BASED in situations where property a gross misdemeanor.19 SOLELY ON THE CONTENT AND multiple people are charged and convicted Both bills were heard in the Public Safety and VIEWPOINT OF A PERSON’S SPEECH of being present at an Security Finance and Policy Committee on AND/OR THE IDENTITY OF THE SPEAKER.” unlawful assembly, it February 22, 2017. The bills’ authors argued allows the government the increased penalties were necessary to to pick and choose protect public safety and to make sure that Pending State Legislation which of those individuals to sue. In short, the bill our roads and transit lines are kept clear. They Targeting Protesters gives the government the ability to distinguish also argued increased penalties would act as a between favored speech and disfavored speech deterrent to stop protesters from demonstrating by imposing civil penalties based solely on the on highways, which inconveniences drivers Several bills were introduced during the 2017 content and viewpoint of a person’s speech and/ and could hypothetically slow public safety Minnesota legislative session in response to or the identity of the speaker. response vehicles. Neither law enforcement the Black Lives Matter protests discussed representatives nor concerned members of the above. These bills are part of a national trend The ACLU-MN also argued that a court could public testified in support of either bill. to push back against rising activism across the easily find H.F. 322 unconstitutionally overbroad country, or at least recoup the public expense and that it would have an unjustified chilling The ACLU-MN joined other organizations and of accommodating free speech. At the time effect on the exercise of free speech. The specter several members of the public in opposition of this writing, two types of legislation, one of jail time and crushing monetary liability would to the bills, arguing that the bills could cause allowing the government to sue protesters for the likely discourage people from participating in a major chilling effect on the exercise of response costs of policing demonstrations and demonstrations even if they have no intention of constitutionally protected speech and create another increasing existing criminal penalties participating in or being present at an unlawful punishments disproportionate to the offense. for obstructing transit ways, have received assembly. While on their faces, these bills are aimed at what committee hearings and are moving through can be described as criminal conduct, they are the legislative process. Despite concerns from advocates and members aimed at conduct closely linked with expressive of the community, the bill passed the committee speech and conduct. The ACLU-MN also argued Civil Liability for on a party-line vote with Republican support that these bills are unnecessary to protect public Unlawful Assembly and DFL opposition. The hearing then ended safety and clear highways because Minnesota abruptly after many in the audience began already has ample laws on the books to address House File 322 would allow cities to sue yelling and chanting in spontaneous protest of demonstrations that get out of hand, including protesters who are convicted of unlawful the committee’s action. The bill was re-referred existing criminal charges of unlawful assembly, assembly or public nuisance for the cost of the to the House Public Safety and Security Finance public nuisance, and riot.20 police response to the demonstration.16 Similar and Policy Committee, where it did not receive a bills seeking to penalize protesters have been hearing before the policy committee deadlines. Lastly, the ACLU-MN argued that these bills introduced in at least seven other states.17 The Its Senate companion, S.F. 678, has not received a prescribe punishments vastly out of proportion House Civil Law Committee heard the bill on hearing in the Senate Judiciary and Public Safety to the conduct at issue. Obstruction of highways January 26. While the bill has 28 Republican Finance and Policy Committee. and airport roads and interfering with passenger authors, only its chief author, Rep. Nick Zerwas access to a transit vehicle are actions primarily (R-Elk River) spoke in support. He argued cities Increased Penalties for resulting in inconvenience to travelers. Punishing should not have to pay the costs associated with this conduct with a gross misdemeanor penalty responding to protests that become unlawful Obstructing Access to seems disproportionate given that Minnesota has and hoped this bill would create a deterrence, Highways, Airports, or the same level of punishment for someone found referring explicitly to actions taken by the Black Public Transit guilty of fifth-degree assault, domestic assault, Lives Matter movement in the last few years. false imprisonment, fifth-degree criminal sexual Representatives of Minnesota’s state agencies, Both H.F. 390, authored by Rep. Nick Zerwas conduct, and malicious punishment of a child.21 cities, or counties who could use this new law to (R-Elk River), and H.F. 1066, authored by Rep. sue protesters in civil court did not take a public Kathy Lohmer (R-Stillwater), would increase Despite opposition from a number of entities position on the bill. fines and potential jail time for protesters who and DFL committee members, H.F. 390 and H.F. obstruct access to major transit ways. House 1066 both passed on a 10-6 party line vote. The Opponents, on the other hand, testified regarding Speaker Kurt Daudt (R-Crown) emphasized bills currently await a vote on the House floor. their concerns that the bill was an attack on free during a recent press conference that cracking speech and protest rights. The American Civil down on protests obstructing highways is a The Senate companions, S.F. 676, authored by Liberties Union of Minnesota (ACLU-MN) priority for the Republican majority in 2017. Sen. (R-Alexandria) and S.F. argued that the bill is likely unconstitutional 918, authored by Sen. Karin Housley (R-St. because it amounts to an impermissible content- H.F. 390 would increase current penalties from Mary’s Point), respectively, received a hearing and viewpoint-based restriction on speech and a misdemeanor to a gross misdemeanor for in the Judiciary and Public Safety Finance it would have a chilling effect on the exercise those who “intentionally obstruct traffic that is and Policy Committee on the same day as the

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House bills. The two Senate bills were combined is fundamental to our democracy. How the through an author’s amendment to S.F. 676. The Legislature and the Governor respond to this amended bill differed from the wording in the recent public restlessness can demonstrate how House companions in that it would be a gross some of our elected officials strike the balance Benjamin misdemeanor for “a person to interfere with or between free speech and the costs it inherently obstruct traffic that is entering, exiting, or on imposes on society. Feist a freeway or entering, exiting, or on a public [email protected] roadway within the boundaries of airport Mr. Feist is the legislative director for the ACLU of 1 See John Reinan and Rochelle Olson, Judge dismisses charges against property with the intent to interfere with, Minnesota where he manages the organization’s 22 organizers of Black Lives Matter protest at MOA, (Nov. 11, obstruct, or otherwise disrupt traffic.” The bill 2015). overall legislative strategy and serves as the ACLU- 2 See Nick Woltman, Black Lives Matter planning another Mall of America MN’s lobbyist at the . Prior to passed the committee to the Senate Floor on a joining the ACLU in 2013, Mr. Feist practiced law in 23 protest, PIONEER PRESS (Dec. 21, 2015). nearly party-line vote of 7-2. 3 See Josh Verges and Mara H. Gottreid, How the I-94 takeover became a both the public and private sectors. He is a former “full-scale riot,” PIONEER PRESS (July 15, 2016). assistant attorney general with the Minnesota 4 See Dave Orrick, Riot charges thrown out in Philando Castile protests, Attorney General’s Office and worked for two U.S. If passed by the Republican-controlled PIONEER PRESS (Jan. 12, 2017). Congressmen at their Minnesota district offices. legislature, these bills will go to the desk of DFL 5 Minneapolis City Code Chapter 447. 6 St. Paul City Code Chapter 366A. Gov. . While Dayton has stated he 7 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).. generally supports protesters’ First Amendment 8 Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992).. 9 Id. rights, he has also expressed concerns about 10 Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 163 (1969) (Harlan, demonstrations on highways. Accordingly, it is J., concurring). Te re s a 11 See, e.g., Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d unclear whether Governor Dayton would veto 1022, 1047 (9th Cir. 2006). this legislation should it make it to his desk. 12 N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982). Nelson 13 Papachristou v. Jacksonville, 405 U.S. 156, 162, 168 (1972). 14 Ward v. Rock Against Racism, 491 U.S 781, 798–99 (1989). [email protected] 15 Ashcroft v. Free Speech Coal., 535 U.S. 234, 255, (2002). Conclusion 16 See H.F. 322 (as introduced), 90th Minn. Legislature (2017–18). Ms. Nelson is legal director for the ACLU of Minnesota 17 See Randy Furst, Bill to crack down on Minnesota protesters appears to be national trend, STAR TRIBUNE (Jan. 24, 2017). where she leads the organization’s constitutional law The uptick in protest activity to highlight issues of 18 See H.F. 390 (as introduced), 90th Minn. Legislature (2017–18). litigation program and engages in non-litigation legal racial injustice and inequality is national in scope 19 See H.F. 1066 (as introduced), 90th Minn. Legislature (2017–18). advocacy to advance civil liberties in Minnesota. 20 See Minn. Stat. § 609.705., Minn. Stat. § 609.74., Minn. Stat. § 609.71. Nelson is a 1996 graduate of Hamline University and is likely to continue in Minnesota, absent 21 See Minn. Stat. § 609.224., Minn. Stat. § 609.2242., Minn. Stat. § 609.255., School of Law. She has been with the ACLU-MN since significant policy changes by law enforcement Minn. Stat. § 609.3451., Minn. Stat. § 609.377 1996, having previously served as Legal Assistant and 22 See S.F. 1066 (1st Engrossment), 90th Minn. Legislature (2017–18). Assistant Legal Counsel. She is a frequent Continuing and the Minnesota Legislature. The right to free 23 Sen. (DFL-St. Louis Park) voted in favor of the bill along with all Legal Education presenter and currently serves on the speech, including the right to protest against six Republicans on the committee. State Advisory Committee to the U.S. Commission on Civil Rights. She also currently serves as an adjunct the authorities who police our communities, faculty member at Mitchell-Hamline School of Law.

The following neutrals are recognized as Minnesota Chapter Members for Excellence in the field of Alternative Dispute Resolution

Hon. John Borg Hon. Arthur Boylan Patrick R. Burns John W. Carey Just. James Gilbert Steve Kirsch Roger Kramer B. Jon Lilleberg (612) 840-1619 (612) 206-3730 (612) 877-6400 (612) 333-9743 (952) 767-0167 (612) 977-8030 (651) 789-2923 (612) 255-1127

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