Police: Block the marathon, face arrest

ST. PAUL - As Black Lives Matter protesters gear up to “disrupt” the finish line of the Twin Cities Marathon this weekend, debate has been growing over if and when arrests should be made.
City officials responded Wednesday, with Mayor Chris Coleman saying the group’s “threatened actions pose an unacceptable risk to runners, spectators and protesters themselves. To paraphrase an old adage, the right of anyone to protest ends at another’s nose, or, in this case, someone else’s feet.
“Therefore, I have asked (St. Paul Police) Chief (Thomas) Smith to keep all options on the table to prevent disruption of the race or prevent runners from finishing the marathon.”
During a news conference hours later, Smith noted that in the time his department has protected the marathon, “not once in those 33 years has that event been disrupted, and we’re not going to let that occur now. … There will be consequences, including arrests.”
Black Lives Matter St. Paul leader Rashad Turner responded briefly by text following the mayor’s statement: “We won’t physically stop ANY runners. We will be holding signs and using our voices.”
He earlier told multiple media outlets that his intention was to block the finish line.
“My hope is the marathon runners realize they’re not going to be able to finish this race and instead of being angry and complaining, that they join in the protest,” he told WCCO-TV Monday.
Turner added that he plans to meet with the mayor today; the mayor’s office has confirmed the meeting.
As opposed to legal action taken in Bloomington over a Mall of America protest last winter, thus far St. Paul has arrested or charged no one during Black Lives Matter marches across the city. Permit-free rallies clogging street corners along University Avenue and at the Minnesota State Fair have been met with a quiet police presence, coordinating traffic and little else.
While some observers debated the political and fiscal consequence of arrests and drawn-out litigation against potentially hundreds of protesters, city officials have maintained that any decision to make arrests be determined case by case, balancing public safety against the right to free speech.
A balancing act
Legal experts note that while city officials can’t discriminate against a protest based on its message, they still have the legal right to ensure roads are clear. St. Paul has allowed some blockage without a permit in order to let Black Lives Matter voice their message.
Coleman added in his Wednesday statement: “While these events have likely inconvenienced some people, the protests have not led to any significant issues, no serious injuries and no arrests. The St. Paul Police Department has done an exceptional job of balancing the rights of protesters to be heard and the public to be safe.”
Social-issue forums in St. Paul are heating up after word of Black Lives Matter’s marathon protest. A “Let Them Finish” Facebook page also has been created in response to the Black Lives Matter announcement - with many expressing a public safety concern about blocking exhausted runners whose bodies are on the verge of shutting down.
“Is BLM going to provide the needed medical attention, hand out nourishment and water, provide thermal blankets to the runners (after exerting yourself that hard and stopping your body gets dangerously cold),” one commenter wrote. “No runner is going to be in the position to join the protest - they will have more basic survival needs to fulfill such as hydration and staying warm. This is an ill-thought-out protest and unsafe for all involved.”
Additionally, there has been infighting among different Black Lives Matter groups about the decision to block the marathon - with the Minneapolis chapter speaking against it, saying the St. Paul group is not a “recognized chapter” of Black Lives Matter.
Tensions flared after the rally at the State Fair, when some protesters chanted “pigs in a blanket, fry ’em like bacon,” outraging police groups. But at other times, such as a rally along University Avenue, protesters were seen joking and chatting with police as the march wound down.
“I think there is a difference in degree in obstructing traffic for 10 minutes or two hours,” St. Paul City Attorney Samuel Clark said just before the protest at the State Fair. “Somewhere in that gray area in between is where the officers on the ground are making the decisions.”
On Tuesday, St. Paul NAACP President Jeffry Martin said: “As long as it’s orderly, nobody’s injured and no property is being damaged, why arrest them? Why should you, when that’s supposedly what America’s about?”
Bloomington City Attorney Sandra Johnson, who is prosecuting several dozen protesters and organizers at the Mall of America protest, said Wednesday: “All people should be treated equally under the law. If you allow a group like Black Lives Matter to block a street, you have to do that for everybody else. You can’t discriminate based on message.”
Mall of America, RNC
After the protest in December at the Mall of America in which stores were put on lockdown, 36 people were charged with a range of misdemeanors, including trespassing and disorderly conduct. Johnson has argued that protest organizers should have sought and obtained the proper permits, and should pay restitution for police and private security costs.
Protesters have said that forcing them to pay for a police presence they didn’t ask for sets a dangerous precedent that negates the constitutionally afforded right to peacefully assemble. They’ve also said the police were the ones who decided to shut down the mall, not them.
The cases are still pending, though the trespassing charges were dismissed in August. The court ruled that mall officials never actually told protesters to leave the property. One case was expedited because of the defendant’s request for a speedy trial; the case resulted in a conviction for trespassing.
The mall protest, unlike those in St. Paul, took place on private property.
“It’s an interesting question to see how much Bloomington has spent to prosecute these cases, compared to what other cities like St. Paul do,” said Bruce Nestor, a Minneapolis attorney who represents Black Lives Matter protesters in the Bloomington case.
Johnson replied, “We’ve hired a contractor to cover a couple court appearances (for other unrelated cases), that happens occasionally. … $80 a hour - not a big deal.”
During the Republican National Convention in 2008, protesters swept across the Twin Cities, often without permits. In the end, hundreds were arrested on charges ranging from a smattering of more serious crimes, such as property damage and assault, to the much more common misdemeanors such as trespassing and assembling without a permit.
Of those 679 less serious RNC cases that did not include violence or damage to property (no local Black Lives Matter protests have included these types of crimes), 578 were declined for prosecution or dismissed.
The remaining 87 cases - including misdemeanors for state or city ordinances against unlawful assembly or trespassing - resulted in pleas or convictions. Many others were acquitted.
St. Paul’s city ordinance against protesting without a permit, passed in 2005 and requiring permits for gatherings of 25 or more, was considered harder to prove than the state statute against unlawful assembly. Protesters during the RNC were often charged with both.
The state statute does not mention permits but prohibits the assembly of three or more people, “with intent to carry out any purpose in such manner as will disturb or threaten the public peace.”
Nestor said many people pleaded guilty and paid a fine, rather than bother going to court.
“What I would call ‘demonstration’ arrests - unlawful assembly, that sort of thing - every case that got to trial, people got acquitted,” Nestor said.
Well, not all of them.
In one instance, a Ramsey County jury convicted eight people, including a nun and multiple members of Veterans for Peace, of trespassing. They had argued, unsuccessfully, that Article 1, Section 16 of the Minnesota Constitution, which protects “interference with the rights of conscience,” should have allowed them to breach a security fence around the Xcel Energy Center.
A Montana man was originally convicted under St. Paul’s “protest without a permit” ordinance, but his case was overturned.
Constitutional cases
The bedrock principle of any ordinances concerning protests is that they can’t set limits on the basis of the viewpoint expressed, with case law dating to at least the 1930s.
In one 1939 U.S. Supreme Court case, the city of Jersey City, N.J., had allowed a police chief to deny protest permits based solely on his opinion that it would prevent riots, disturbances or disorderly assemblage. The Supreme Court ruled against the city, noting such power was unconstitutional.
A good portion of constitutional law over protests derived from the civil rights era, when white Southern officials tried to arrest black marchers for “disturbing the peace.”
In 1963, for example, the Supreme Court ruled against the legality of arresting 187 black students who protested racial discrimination outside the South Carolina state house. Police reacted by ordering them to disperse within 15 minutes, and when they didn’t - though there was no evidence of violence, property damage or blocked streets - they were arrested.
However, noted Dale Carpenter, a University of Minnesota professor who specializes in constitutional law and the First Amendment in particular, “The courts have recognized that there are legitimate government interests in making sure traffic flows openly, that sidewalks are open, control excessive noise, and other things that are not dependent on viewpoint.”
One of the most famous cases on the right to protest came more than a decade later, a full 180 degrees across the ideological spectrum.
In 1977, the U.S. Supreme Court ruled that the National Socialist Party of America had the right to display swastikas and hand out literature in the predominantly Jewish village of Skokie, Ill.
Still, the court upheld that Skokie had the right to designate streets and times for the march, as long as it allowed the Nazis ample means to express their views. The protest could not be relegated to a farmer’s field, for example.
But as for finding a defining legal standard beyond that, good luck, Carpenter said.
“Those are not the cases where you’re going to have a single definitive ruling that solves all disputes, because they’re really case by case. … If it’s a mile away, a judge will decide whether that’s enough or too little.”