Legal battles begin over police restriction of protesters’ rights

Robert Koch

Now that the barricades around the Minneapolis Hyatt Regency hotel are gone and the air around Loring Park has cleared of pepper spray, legal battles over police actions during the animal genetics conference have begun.
The Minneapolis Police Department’s strong show of force and restriction of protesters’ movements have left participants and observers debating whether constitutional rights were upheld or violated.
“The police organized and planned for a violent confrontation — and they followed through by creating a violent confrontation,” said Jordan Kushner, a Minneapolis attorney and member of the National Lawyers Guild. “They made a deliberate decision to violently repress people’s attempts to exercise their free speech.”
Don’t be surprised
As last Monday’s protest march drew to a premature close along 12th Street South and one trapped protester approached an officer, demanding to speak with an attorney, she heard simply: “Tell it to someone who cares.”
If such remarks, along with baton blows and pepper spray, challenged protesters’ assumptions about freedom of speech, they do not necessarily surprise legal observers familiar with civil-disobedience situations.
The Washington, D.C., and Philadelphia chapters of the National Lawyers Guild have prepared a statement for those planning to protest at the Republican National Convention, which begins in Philadelphia today.
“Understand that there is a difference between what you are legally entitled to do (the theoretical) and what the police on a particular occasion are going to let you do (the reality),” reads the statement. “Vindication of your rights may only come later, at trial, if at all.”
Or, police focus on following orders rather than discussing constitutional matters during protests.

Recourse options
Police spokeswoman Cyndi Montgomery said police used methods learned in crowd-control training, adding some officers employ the tactics on a day-to-day basis.
Whether or not riot sticks and pepper spray constituted excessive force, as protesters contend, is now left to civil libertarians and independent reviewers to decide.
The Minnesota Civil Liberties Union is currently asking people who either witnessed or were involved in protest incidents to come forward and complete a confidential form for its “ongoing investigation into alleged violations of individual rights by police officers.”
Legal issues aside, some people have contacted the Minneapolis Civilian Police Review Authority.
Operating independently of the police department, the authority investigates alleged police misconduct, ranging from excessive force to inappropriate language or attitude.
“There were at least five calls from people that were involved in (the protest),” said Executive Director Patricia Hughes. “They’re assigned to investigators. Together, they will determine if a formal complaint should be filed.”
Hughes added that people often don’t call immediately.
Sustained complaints are forwarded to the police chief, and the officer involved is disciplined. Some cases are resolved through mediation between the officer and the complainant.
Whether dismissed, mediated or sustained, every case and every phone call has a positive effect, Hughes said.
“Many times, we’ll see an officer come in here, and there’s not enough (evidence) to pursue it,” she said. “That officer we don’t see back. So it’s the fact you have to go through the process that oftentimes is a deterrent.”
Restriction of movement
During last Monday’s protest, that clause of the First Amendment guaranteeing the right of the people to peaceably assemble came head-to-head with perceived threats to public safety and property.
Police cited that protesters lacked a parade permit. And a city ordinance makes it illegal to congregate on streets or sidewalks “so as to obstruct passage of others.”
Kushner rejected a claim by the mayor’s office that protesters would have been given a parade permit had they requested it.
“(The city) announced ahead of time they weren’t going to give any permit,” Kushner said. “So they made it impossible for people to exercise their right to protest, and then they arrested them for doing it.”
Deputy City Attorney Joan Peterson, however, said the Supreme and appellate courts, not statutes and city ordinances, usually decide freedom-of-speech issues.
“The question always is what is a reasonable time, place and manner restriction,” Peterson said. “The main issue has come down to that you have to allow people trying to speak a message to be within sight and sound of those that they are trying to reach.”
Peterson said this principle led to the construction of the designated protest area outside the Hyatt Regency.

“Protest pits”
As the site of the upcoming Democratic National Convention, Los Angeles has its own share of controversy over freedom of speech.
Last week, the city proposed a new designated protest area after the American Civil Liberties Union sued over the constitutionality of the original area, which it said lay too distant from the convention site.
“It was a further distance, it was behind a 17-foot fence,” said City Council member Jackie Goldberg. “We’re going to be much closer — right across the street from the Staples Center.”
Philadelphia also has set up a protest area for activists during this week’s Republican convention.
Protesters nationwide deride the areas — regardless of their location — as “protest pits.” Meanwhile, Goldberg, civil libertarians and some lawyers worry about the broader implications of confining protesters to designated areas.
“This is a somewhat coordinated national effort to violently repress the new movement that’s being organized,” Kushner said.

Robert Koch covers police and courts and welcomes comments at [email protected]