A Hennepin County judge on Tuesday dismissed charges against organizers of the massive Black Lives Matter protest at the Mall of America in Bloomington last Christmas season.
The leaders of the protest, which drew more than 2,000 people to the mall on Dec. 20, had faced misdemeanor charges of aiding and abetting trespass, aiding and abetting unlawful assembly, and aiding and abetting disorderly conduct.
In a 137-page decision, Chief Judge Peter Cahill dismissed all charges against the 11 organizers, while keeping in place trespass charges against 17 individual protesters.
“We stand proud today. We stand vindicated today,” said Nekima Levy-Pounds, a University of St. Thomas law professor and one of the 11 organizers. “And we continue to stand in solidarity with people across the country who are declaring that Black Lives Matter and who are disrupting the status quo in their attempts to get justice.
“Judge Cahill made a fair and just decision in dismissing our charges,” said Levy-Pounds, who was recently named president of the Minneapolis NAACP. “We knew they were trumped-up charges, and we were being politically prosecuted by the Bloomington city attorney’s office.”
Jordan Kushner, attorney for four of the 11 organizers, called it “an extremely significant decision for free speech and the right to dissent, and I think it’s a very important action addressing a real prosecution overreach and abuse of power.”
Bloomington City Manager Jamie Verbrugge said the city’s “overriding concern is public safety for our community and the thousands of people who come to Bloomington to visit the Mall of America every day. The city will continue to protect the public’s safety.”
Verbrugge added that the city’s legal team has “universal respect” for Cahill, a former top Hennepin County prosecutor “who spent a considerable amount of time considering the issues.”
The judge’s reasoning
The Mall of America is privately owned, and as a policy does not allow protests. The state Supreme Court has upheld the mall’s right to control events on its property. But Cahill noted that “few things are as sacrosanct in this country as the rights guaranteed to the people under the First Amendment [for freedom of speech and the press].”
Cahill said no group possesses a constitutional right to political demonstration over the objection of the mall’s ownership and management. But while the demonstration was unauthorized and conducted over the objection of management, Cahill wrote that “nothing about it was subversive. It was, in fact, highly publicized. As some might say, that was rather the point.”
He also said there was no evidence that the protest’s leaders actively opposed the police or mall management. In fact, he wrote, “the evidence is precisely opposite.” Protest organizers assisted in moving protesters out of the mall once they were ordered to disperse.
Cahill noted that the more than 300 mall security guards and Bloomington police officers on hand didn’t move to break up the demonstration until it had gone on for about half an hour. By not breaking up the demonstration immediately, Cahill wrote, mall security and police gave tacit approval to it.
Warns other protesters
The judge emphasized that he had viewed many hours of the demonstration from various perspectives, including the parking ramp, skyway and outside areas.
He called the demonstration “peaceful,” saying he saw only very minor tests of will between police and security officers and demonstrators in the 90 minutes after the main protest.
Cahill praised the police, the mall and the protesters for working together in the 10 days before the event. He also credited the mall and Bloomington police for their restraint in ensuring that the protest “remained peaceful and did not take a turn toward the disastrous.”
He warned, however, that “not every such demonstration may always inevitably unfold as peacefully as did the [Black Lives Matter] demonstration at the Mall of America.”
Early in the order, the judge remarked that Bloomington prosecutors and the mall may be “dissatisfied” because penalties for trespassing are not sufficient to deter future protests. That is an issue for the Legislature, he wrote, adding that there probably were public relations and cost concerns that prevented the mall or prosecutors from using existing remedies to try to bar protesters before the event.
“The state’s desire to deter future unauthorized demonstrations at the MOA by charging 25 of these 29 defendants with some combination of disorderly conduct, unlawful assembly, and aiding and abetting criminal trespass, disorderly conduct, and unlawful assembly … does not pass constitutional muster,” he said.