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Rep. Nick Zerwas, R-Elk River (left), discusses his bill to increase penalties against protesters who block transit ways during a debate Tuesday with Rep. John Lesch, DFL-St. Paul. Debate moderator David Schimke, editor of the Citizens League Voice magazine, looks on. (Staff photo: Kevin Featherly)
Rep. Nick Zerwas, R-Elk River (left), discusses his bill to increase penalties against protesters who block transit ways during a debate Tuesday with Rep. John Lesch, DFL-St. Paul. Debate moderator David Schimke, editor of the Citizens League Voice magazine, looks on. (Staff photo: Kevin Featherly)

Squaring off over freeway protests

Their June 25 debate in south Minneapolis was about the fifth time that Rep. Nick Zerwas, R-Elk River, and Rep. John Lesch, DFL-St. Paul, have squared off to argue about freeway protests. It might have been the first over beers.

Sitting on stage before a mostly white audience of millennials and boomers, the legislators took part in “A Good Debate: Whose Streets? The Case For and Against Disruptive Protests,” a forum hosted by the Citizens League at the Icehouse tavern.

Since 2016, Zerwas has authored bills three times to increase penalties against freeway protesters. Lesch has opposed him at every turn.

The first version in 2016 was dropped with little fanfare. Dubbed an “unlawful assembly bill,” it responded to a protester takeover at the Mall of America and a 2015 freeway protest on Interstate 94 after the shooting death of Jamar Clark. In 2017, he unveiled a new version after a July 2016 a freeway protest closed Interstate 35W following the police shooting of Philando Castile.

“That’s kind of when all hell broke loose,” Zerwas said.

He tried again this year. His bill, which ups criminal charges from misdemeanor to gross misdemeanor for blocking freeways, airports or mass transit, has yet to become law. Zerwas intends to try again in 2019.

Previous debates on that issue have happened mostly in Capitol committee hearings and on the House floor, where rhetoric has at times exploded.

“Take your shovel and dig Martin Luther King back up and dig up Malcolm X and charge them with protesting!” shouted John Thompson, a friend of Castile’s, after the freeway-protest bill cleared a House committee on Feb. 22, 2017. “This is nothing but white supremacy in our face!”

That’s the tone debate moderator David Schimke looked to avoid. Schimke is founding editor of the Citizens League Voice magazine, which recently published its third edition. It includes a package of articles based on the theme of the Tuesday gathering; Zerwas contributed to it.

“We want it to be civil, we want it to be rigorous but we don’t want to be rancorous,” Schimke told the lawmakers as the debate began.

‘Matter of morals’

Zerwas got the first question: Why is the effort to increase criminal penalties so important, Schimke asked.

Zerwas said he initially was prompted to submit his bill because two constituents had contacted him complaining about the I-35W protest. One missed a medical appointment with a Mayo Clinic specialist — for which she had already waited six weeks — because she couldn’t escape the blockade quickly enough. She had to wait another six weeks to reschedule.

“She was in terrible pain and waited twelve weeks in order to get in,” Zerwas said. His other constituent missed a flight and was unable to join her siblings at her dying mother’s bedside, Zerwas said.

“I looked at this issue the way we look at many criminal justice issues,” he said. “How do we dissuade unwanted activity? One way, from a criminal justice policy perspective, is with increased criminal penalties.”

Lesch, a former prosecutor turned criminal defense attorney, was asked why it is important to resist Zerwas. He answered by paraphrasing King’s “Letter From a Birmingham Jail.”

“An unjust law should be disobeyed as a matter of morals,” he said. Lesch said the 35W freeway stoppage and the I-94 protests of 2015, 2016 and 2017 were all reactions “to a failure of government to address an injustice.”

Following the 2015 incident on I-94 in Minneapolis, 51 people were arrested. In the 2016 incident — which followed the grisly, live-streamed Internet broadcast of Castile’s death — more than 100 people were arrested while 21 law enforcement officers were reported injured. A University of Minnesota police officer had a cement block dropped on his head. Zerwas said that officer may never work again.

The 2017 incident, uneventful by comparison, resulted in 18 arrests. It followed the acquittal of Officer Jeronomo Yanez on manslaughter charges in Castile’s shooting.

Holding with is liberal House colleagues, Lesch maintains race was a major factor in the criminal charges lodged against freeway protesters. As evidence, he pointed to a January 2017 women’s march on the Capitol after Donald Trump’s inauguration. It attracted 100,000 marchers — many of them suburban and white — to a rally permitted for just 2,000 participants, he said.

“That means there were 98,000 people who were guilty of unlawful assembly in St. Paul that January — the same charges as the folks on the highway,” he said. And yet only one person, a counterdemonstrator, was ever charged, Lesch said.

“Those 100,000 folks, I guarantee you, they blocked traffic,” Lesch said. “They were breaking the law. And yet not a single person was up in arms about that.”

That case is not analogous, Zerwas replied, because that march didn’t cause mass travel disruptions.

Those demonstrators arrived on the freeways and light rail trains — they didn’t block them, Zerwas said. His bill only protects access to freeways, airports and mass transit — not city streets like John Ireland Boulevard, which was flooded by the women’s march, he said.

Zerwas asserted that disruptive tactics from groups like Black Lives Matter actually harm their cause.

“We had a time period where their go-to message and tactic was ‘shut it down’ — shut down the mall on the biggest shopping day of the year; shut down the airport on the biggest travel day of the year; shut down the freeway,” Zerwas said. “To what end?”

Political influence

At one point Schimke asked Zerwas whether the Clark and Castile protests could have attracted media attention needed to communicate their cause without the freeway shutdowns.

“I think those conversation absolutely would happen,” Zerwas said. “They happened across the country.”

“You would not have had the first prosecution of a police officer in the state of Minnesota for killing a black man,” Lesch said, “if those protests had not occurred.”

That surprised Zerwas. “As a former prosecutor,” he said to Lesch, “do you really believe that the county attorney’s office saw the evidence and their ability to prove it differently because people were on the freeway?”

“Yes,” Lesch said. “The county attorney in an elected position. … He makes decisions based upon public sentiment.”

Schimke asked Lesch whether mass-transit stoppages just lead to deeper polarization by making disruption the focus of conversation rather than protesters’ feelings of injustice.

Lesch acknowledged that protesters sometimes overplay their hand. But he said “deep injustices” underlie virtually every protest he has seen. Zerwas and his bill’s supporters, on the other hand, push back merely because they are “annoyed.”

“You know what?” Lesch said. “The protesters are annoyed that their friends and relatives are getting shot when they shouldn’t have. So who has the bigger offense on the table here?”

“We are not talking about annoyances,” responded Zerwas. “We are talking serious health and safety issues. … Regions Hospital was inaccessible from the freeway when that protest occurred.”

Zerwas acknowledged that the ongoing debate has caused him to question the certainty of his position at times. But Tuesday’s dispute changed no minds.

Nothing demonstrated that as clearly as a question about whether any evidence demonstrates that increased criminal penalties deters crime.

“No,” Lesch said.

“Yes,” Zerwas said.

The Lesch-Zerwas debate was the first in what Schimke hopes will be a series of Citizens League debates patterned after his magazine’s “A Good Debate” section. “We want to use format to make people think about new ideas,” Schimke said.

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