The Mall of America and Bloomington have a “symbiotic” relationship that leaves the mall operating as an arm of city government, Black Lives Matter protesters say. And that means demonstrators should have the right to protest at the mall just as they would on the steps of City Hall.
In legal briefs filed this week, lawyers for the 11 people charged with organizing the massive Dec. 20 protest said that it’s time to overturn the Wicklund case, a 1999 decision by the Minnesota Supreme Court declaring the mall a private place. The mall has relied on that decision ever since to control access to its premises.
When the mall and the city got wind of the Black Lives Matter protest, they met it with a tightly coordinated response that effectively had them functioning as a single unit, the legal briefs say. Lawyers offered a laundry list of actions that they said demonstrates the “intertwined” relationship between mall and city. Among them:
• City police and mall security conferred frequently before the protest and planned their response jointly.
• The city attorney directed the mall’s personnel to investigate individuals on social media before the demonstration and preserve the information for possible evidence in prosecutions.
• The mall sought legal advice from the city attorney, which the city attorney attempted to keep private as privileged attorney-client communication.
These and other actions, the lawyers argued, essentially transformed the mall into a public place where people should be free to exercise their right to free speech.
“The City Attorney’s Office and the Bloomington Police Department managed and controlled the investigation leading up to the demonstration and directed the Mall’s personnel and corporate counsel’s actions,” the legal brief said. “This unity supports the conclusion that the Mall, although a private actor by name, was acting as a quasi-governmental actor. …”
A crowd of 2,000 to 3,000 people gathered at the mall on the last Saturday before Christmas to protest the killings of unarmed black men by police in New York City and Ferguson, Mo. Police in riot gear met the protesters and ordered them to disperse. About 25 people were charged with trespass or disorderly conduct for their actions that day. The 11 people identified by Bloomington officials as organizers and “ringleaders” of the demonstration each face criminal misdemeanor charges, including trespass, disorderly conduct, and aiding and abetting trespass. Their attorneys filed motions this week seeking dismissal of all charges.
The first trial stemming from the protests ended Thursday in a trespass conviction for Anthony John Nocella, one of those charged for his actions on the day of the protest, according to Larry Leventhal, a member of the defense team. Leventhal, who was the losing attorney in the landmark Wicklund case, said it’s time for courts to recognize the Mall of America as a public square.
“Wicklund is very bad law from a free speech perspective,” he said. “We think Wicklund should be thrown out.”
In the years since that case was decided, he said, the bonds between the city government, the city police and the mall have grown ever tighter, indicating that the mall has lost its right to be considered a purely private entity.
The 11 organizers are also asking to be tried as a single group, said defense attorney Jordan Kushner.
“There’s a lot of work to do, and the attorneys are doing it pro bono or for very nominal pay,” he said. “We don’t have the resources for multiple trials. It’s a matter of practicality.”
The city of Bloomington has until July 15 to file its response to the latest motions, but is asking for an extension until July 30.