When hundreds of protesters descended on the Mall of America on Dec. 20 to protest the police killing of young black men, there is little doubt the protesters broke the law, albeit a bad law in my view, by trespassing.
It was an intentional act of civil disobedience, and I agree with Bloomington City Attorney Sandra Johnson on at least one thing: If you are going to engage in civil disobedience, you should expect to be punished. It goes with the territory.
I happen to think that punishment for a peaceful protest should be light, such as a short probation and community service.
But Johnson is going much further, saying she wants protesters to pay for police presence at the event and potential income lost by store owners at the mall.
If I wanted to be sarcastic and ask a Stephen Colbert question, it would be: Why do you hate the First Amendment, and do you work for the city of Bloomington or the Mall of America?
Johnson responded to my call and e-mails in an e-mail. She said charges against the arrested 24 people, plus others, will be made by early next week and restitution would be requested upon conviction.
“The request will include any verifiable out of pocket costs to the City for additional police overtime, including the charges coming from other mutual aid police departments. That will exceed $25,000 by current estimates. It will also include the objectively verifiable costs of the MOA attributable solely to this criminal conduct,” she wrote.
The notion that people expressing themselves in public should pay for the police is perhaps unprecedented, according to civil rights attorneys, and certainly chilling to anyone who thinks they might want to gather to protest something, someday.
How many people would attend a demonstration, whether it was an antiwar rally or a pro-gun gathering, if you had to pay for police you didn’t ask for? Peaceful assembly is a founding right, not “The Price Is Right.”
Chuck Samuelson, executive director of the American Civil Liberties Union of Minnesota, said Bloomington is attempting something seldom seen anywhere else. He recalls only one other instance in which a city tried to charge demonstrators for police presence, but it was immediately dropped.
“I think what the city attorney is trying to do is blatantly un-American,” said Samuelson. “Going after them for police costs is beneath the dignity of the office she holds.”
Samuelson also thinks Johnson’s threat to make protesters pay for perceived income loss is a classic case of “prosecutorial overreach.” Samuelson wonders how stores will prove they would have had more business for the 75 minutes of protest, and he points out that many of the stores were told to close by police officers.
“It’s as cynical a ploy as there ever was,” said Samuelson. “I think the whole thing reeks to high heaven.”
Jordan Kushner has represented hundreds of people in civil rights and disobedience cases.
“I’ve never seen anything like this,” he said. “It’s the first time I’ve seen them try to get protesters to pay for police costs, and there’s never been restitution requested” unless there has been actual damage to property.
He represents a couple of the people arrested at the mall, and will be contesting their charges. Kushner said the city attorney seems to be using a criminal case to charge people for a nuisance crime, then getting a judge to order restitution for the stores (which my sources say is highly unlikely).
“It gets to the whole disturbing aspect of this,” said Kushner. “It looks like she’s working for the mall, not the city. She’s basically trying to be a collector for the mall. This is the stuff for a complex lawsuit” by the stores themselves, he said.
During a Bloomington City Council meeting this week, Johnson explained her rationale like this: “The city prosecutor’s role does not have the luxury of selectively prosecuting cases that come before us. We cannot let politics or public opinion interfere with prosecutorial discretion.”
Indeed, Johnson has shown a consistency on free speech issues across the political spectrum.
In 2012, she battled against a conservative group, the Minnesota Majority, when it wanted to pass out lawn signs advocating for mandatory voter identification — this time in a public place, the Bloomington Civic Plaza.
Johnson said in an e-mail that the city was trying to maintain political neutrality. “In (this) case we were avoiding the use of civic plaza property for their Vote No signs and literature to avoid the appearance of an implicit endorsement of a political cause during absentee voting season.”
Johnson was also the person who successfully appealed a lower court decision that initially allowed protests at the mall.
In 1999, the Minnesota Supreme Court backed the mall’s right to keep protesters from staging demonstrations there, despite the fact that taxpayers gave millions of dollars to help build the place.
Now, while protesters are being targeted for trespassing at the mall they helped fund, the Legislature last session approved another $250 million of public money to help mall owners expand. At the time, the MOA estimated the project would attract another 20 million visitors.
I can only assume that their opinions inside the facility will be limited to what color pumps to buy.
Follow Jon on Twitter: @jontevlin