Two bills that increase penalties against lawbreaking political protesters appear to be constitutionally solid, according to a Mitchell Hamline Law School First Amendment expert. Those bills are on their way to the House floor.
A third bill allowing cities to recover the costs of police response from protesters convicted of “unlawful assemblies” appears to be on shakier constitutional ground, the scholar said.
Marie Failinger, a First Amendment attorney and former Hamline law school interim dean, said she is troubled by all three bills. However, the first two — House Files 390 and 1066 — seem poised to withstand First Amendment challenges, she said.
“The authorities can say, ‘You can’t go there, you can’t block that,’” Failinger said. “My guess is that they would be able to come up with reasons why those are especially important transit areas and, therefore, it is worse to block them.”
House File 390 is authored by Rep. Nick Zerwas, R-Elk River. The similar House File 1066 is authored by Rep. Kathy Lohmer, R-Stillwater. Both make blocking access to major transit ways gross misdemeanors rather than simple misdemeanors.
That would make them punishable by up to one year in jail and up to a $3,000 fine — equal to second-time driving while intoxicated or domestic-assault convictions. Current traffic-blocking offenses are punishable by no more than 90 days in jail and a $1,000 fine.
The GOP-backed bills passed through the Public Safety Public Safety and Security Policy and Finance Committee on Feb. 22 with identical 10-6 party line votes after an intensely emotional hearing.
Failinger thinks the lawsuit bill is less likely to pass constitutional muster. Under its provisions, local authorities could sue protesters to recover police costs for responding to “unlawful assemblies and public nuisances.” Court fines assessed separately against a defendant could not be applied toward those civil damages.
There is not much case law related to legislation of that type, Failinger said, but she foresees several problems. The law likely would aim to punish protest organizers, she said, since it would be impractical to assess damages against potentially thousands of people.
That means someone conceivably could be forced to pay costs for which they are not directly or personally responsible, she said. “The open-ended nature of this is problematical from a First Amendment perspective,” Failinger said.
Question of deterrence
Legally defensible or not, it was evident during the Feb. 22 Public Safety hearing that the two criminal-penalty bills generated great concern among DFL legislators, protesters and their advocates.
In testimony, both Zerwas and Lohmer repeatedly emphasized public safety as their motivation for submitting the bills, not any desire to quell free speech.
Zerwas insisted they were needed as a deterrent to stop people from marching onto freeways or otherwise jamming up transportation arteries. Several protests over the last year that shut down Twin Cities freeways prove that current misdemeanor penalties are ineffective as a deterrent, he said.
“That is why I am bringing this bill forward,” Zerwas said. “If you block a freeway, you should go to jail.”
Lohmer said the bills are needed, in part, to stop what she called “a revolving door” effect. She testified that police officers told her some protesters blocking freeways last year were arrested and released so quickly that they were back on the freeway before the protest had even broken up.
That prompted skepticism from DFLers who challenged the bill authors to identify one specific such example. Neither could. “I didn’t bring any arrests records with me today to discuss,” Zerwas said. “But we do know that this has not proven to be a deterrent.”
Jon Erickson, a former prosecutor representing the Minnesota Association of Criminal Defense Lawyers, was among the numerous skeptics who testified at the hearing.
“I have never had a client tell me, ‘You know, if this would have been a gross misdemeanor rather than a misdemeanor, I would have never committed the crime,’” Erickson said. “This will have zero effect as a deterrent.”
It would, however, cause “collateral consequences,” Erickson said. It would push convicted protesters—many of whom come from disadvantaged communities—into poverty by giving them criminal records and making it harder to secure decent jobs and housing, he said.
That line of discussion eventually got personal. Minneapolis attorney Clint Conner challenged Zerwas to declare whether his own personal criminal history supports the idea of deterrence. Zerwas was arrested and convicted of driving while intoxicated in 2014.
“Mr. Zerwas, did the penalty for DWI stop you from driving while intoxicated?” Conner said. “Did deterrence stop you from driving 80 miles per hour in a 60 mile per hour zone?” Zerwas did not respond.
The committee heard from about a dozen witnesses. However, no African-Americans spoke until almost the end of the hearing — and then only because a white testifier ceded his time. Rep. Marion O’Neill, R-Maple Lake, later explained that no African-Americans signed up to testify.
That testifier was John Thompson, a friend of slain St. Paul motorist Philando Castile. He brought the meeting to a high emotional pitch when he condemned the criminal-penalty bills as baldly racist. Several disruptive mass protests in the past year were connected to the police shootings of two black men — Philando Castile and Jamar Clark — and to the Black Lives Matter protest movement.
“Take your shovel and dig Martin Luther King back up and dig up Malcolm X and charge them with protesting — this is nothing but white supremacy in our face,” Thompson seethed. “If you want us to stop protesting, sir, stop giving us a reason to protest.”
In the end, opponents went away unhappy. The criminal-penalty bills passed by identical 10-6 party-line votes. Afterwards, a furious Thompson screamed at committee members, “Put your white hoods back on!”
Governor may back bills
While not expressly supporting the increased criminal-penalty bills, Gov. Mark Dayton said on Feb. 23 that he agrees in general with increased penalties against protesters who block traffic, airports or mass transit. He cited public safety grounds.
“I’m not going to commit to it, but I would look at something that is very explicitly defined with those kinds of geographical boundaries,” Dayton told reporters.
Dave Ornstein was city attorney when Bloomington successfully appealed the State of Minnesota vs. Wicklund case to the Minnesota Supreme Court. The high court’s decision affirmed that the Mall of America is not a public forum for purposes of mass demonstrations.
Ornstein, who retired from that job after 24 years in 2009, sides with Zerwas and Lohmer in the dispute. “I don’t think a gross misdemeanor penalty under those circumstances is unreasonable at all,” he said.
He continued, “I don’t have any sympathy with protesters saying, ‘You are violating my First Amendment rights because I can’t block freeway traffic or access to an airport.’ That’s just silly.”
Rep. Dave Pinto, DFL-St. Paul, a Ramsey County prosecutor, said he has yet to form a clear view on the constitutionality of the criminal-penalty bills. He did say he sympathizes with Public Safety committee testimony from the American Civil Liberties Union suggesting that the Lohmer/Zerwas bills might chill free speech.
On the third bill that would allow cities to sue protesters, however, Pinto harbors no doubts. “The lawsuit bill,” he said, “absolutely is unconstitutional.”
When House File 322, also authored by Zerwas, passed the Civil Law committee in January it was referred to the House Public Safety committee. As yet, that bill has not been scheduled for a hearing there.