Judge's ruling won't stop Black Lives Matter group from demonstrating at Mall of America

A judge's ruling Tuesday won't prohibit a Black Lives Matter demonstration at the Mall of America on Wednesday, or satisfy the shopping complex's desire to make the group take down social-media messages about the protest.

The 29-page order from Hennepin County Judge Karen Janisch did reinforce the mall's right to remove from its private property protesters who may show up at Wednesday's event. But Janisch declined to bar BLM, because the mall couldn't prove that the group was a legal entity.

Janisch agreed to the mall's request to prohibit BLM activists Miski Noor, Michael McDowell and Kandace Montgomery from demonstrating on mall property. Before the ruling, Noor and others had said they wouldn't cancel the protest seeking justice for Jamar Clark, who was killed Nov. 15 by Minneapolis police in a scuffle. Activists claim he was handcuffed when he was shot, an assertion denied by police officials.

Susan Gaertner, the mall's attorney, said the order got the word out that it's against the law to protest at the mall. It also alerted the three named leaders that they could be charged with contempt of court if arrested at the mall. She described the three as having been very vocal in the community and on social media advocating for the mall protest.

Jordan Kushner, who represented the three named leaders, said the mall "really didn't get much bang for their money" in Tuesday's ruling. He had hoped Janisch would address freedom of speech issues and the right to dictate what a person can say on social media.

Judge's ruling

"This case presents important issues regarding the rights of a private property owner over the control of its premises and the desire of individuals to protest activities in a highly visible location," Janisch wrote.

The mall proved through evidence and legal arguments that a temporary restraining order against the three organizers was necessary to protect the mall from imminent irreparable harm, according to the ruling.

But the judge wouldn't allow the mall's request to have BLM or anybody possibly associated with the group held responsible for protest messages on social media, "an evidentiary hurdle in the electronic age."

Kushner wasn't surprised the judge didn't tackle the social media issues and stuck with the immediate, narrower circumstances of the mall's requests that could be practically handled. It isn't intended to be a precedent-setting ruling, he said. "Three people are prohibited from attending the protest," he said. "So the ruling doesn't have that much impact."

Those named in the restraining order couldn't be reached for comment Tuesday evening. Lena Gardner, one of four alleged leaders targeted by the mall, wasn't part of the restraining order because she hadn't been served legal notice by the mall, declined to comment.

The call for a 1:30 p.m. protest at the mall's east rotunda remains in place on the Black Lives Matter Minneapolis site, which indicated 654 were "going" as of Tuesday evening.

The mall's request follows a November decision by Hennepin County Chief Judge Peter Cahill, who dismissed charges of unlawful assembly and aiding trespass against 11 Black Lives Matter organizers after a protest at the mall last December that drew about 1,500 people. McDowell and Montgomery attended that protest.

"In his ruling, [Cahill] said the mall would have an option to seek temporary relief, which is what we did," Gaertner said. "Our focus was to prevent unlawful behavior rather than punish people for unlawful behavior."

Although Janisch issued the temporary restraining order, she stressed that her decision shouldn't be interpreted as permitting others to engage in political demonstrations at the mall without express permission. The three named leaders also don't have a constitutional or protected right to demonstrate at the mall, she wrote.

But the ruling noted that the mall didn't show the three leaders were responsible for directing messages on social media associated with BLM or that they are able to carry out a court order to remove or post messages.

Gaertner said this case was an example of where the law needs to catch up with social media culture. It's a phenomenon that is hard to fit into the kind of box a court ruling can address, she said.

"What's important is that this case is being talking about in the media, and we have accomplished what we set out to do," she said. "We hope the ruling will have a positive effect on people who will want to come out to the protest and break the law."

Bloomington police and mall officials declined to discuss how protesters would be handled. But Gaertner said she's confident in the mall's ability to protect its guests, "no matter what decisions are made by protesters."

David Chanen • 612-673-4465