CommunityThe Dissenter

Judge Blocks ‘5 Second Rule’ as Unconstitutional But Embraces Police Claims About ‘Violent’ Ferguson Protesters

Government photo of Eastern District Court of Missouri building and in the public domain

A United States district court judge issued an order preventing police from continuing to enforce a rule they created and imposed against protesters in Ferguson, which required them to keep moving or face arrest. The judge found that the rule was unconstitutional and acknowledged that commanding officers were well aware that it was “unlawful” to arrest people who were peacefully standing on a sidewalk. However, she embraced the misconception that protesters had been routinely violent against police.

The American Civil Liberties Union (ACLU) chapter in Missouri submitted a lawsuit against the rule on behalf of one of their program associates, Mustafa Abdullah, who had been observing protests in Ferguson and handing out “Know Your Rights” cards after Mike Brown was killed by a Ferguson police officer.

Abdullah was meeting with people on the sidewalk on August 18 when St. Louis County police officers approached him and commanded him to “keep moving.” A person asked Abdullah to pray with her, however, police insisted that they pray while walking. Abdullah was ordered to “keep moving” or face arrest multiple times that day and ultimately left the area because he did not want to be arrested while doing his job.

The ACLU argued the rule infringes upon Abdullah’s First Amendment rights, “including the right to assemble,” and violates the Fourteenth Amendment’s Due Process clause because “the policy fails to provide sufficient notice of what is illegal and because it was enforced arbitrarily.”

Judge Catherine D. Perry decided [PDF] that Abdullah was likely to succeed in proving his claims against St. Louis County and Ronald K. Replogle, superintendent of the Missouri Highway Patrol. (The Highway Patrol had been in charge of coordinating crowd-control in August.)

“The practice of requiring peaceful demonstrators and others to walk, rather than stand still, violates the constitution,” Perry declares. “Because it is likely that these agencies will again apply this unconstitutional policy to plaintiff and the peaceful protesters he wishes to meet with, I will enter a preliminary injunction.”

Perry indicates, “It is also significant that the policymakers actually knew that they could not lawfully arrest people simply for standing peacefully on the sidewalk. The top members of the unified command decided that they would use the failure-to-disperse law as their legal justification for the orders that all the demonstrators must keep moving, but they also knew that to arrest someone legally they would have to have probable cause to believe that six or more people were gathered for the purpose of violence and had refused an order to disperse.”

“The policymakers knew the policy was being used against peaceful citizens but did not stop the practice,” she adds.

Since commanding officers knew this was wrong, Perry determined that Abdullah was likely to prove that St. Louis County was liable for this policy.

“St. Louis County apparently wishes the court to conclude that all of the different officers who took the same actions over a period of several days were doing so on their own, without any orders or directions from the County police department policymakers,” Perry suggests. “This argument is contradicted by the facts of the case. The evidence presented at the hearing indicates that plaintiff will be able to show either a policy – albeit unwritten and vague – or, at the least, a
custom.

“Both the St. Louis County Police Chief and the Precinct Captain who testified were directly involved in developing and enforcing the keep-moving strategy, along with the Highway Patrol Captain who had been placed in charge of the situation by the Governor. This was a deliberate strategy, developed after the unified command structure met and discussed options.”

Additionally, the judge agreed that it was next to impossible to know who was subject to the rule:

…Some law enforcement officers told people that they could stand still for no more than five seconds. Others gave instructions that people were walking too slowly, or that they could not walk back and forth in a small area. Some law enforcement officers did not make people keep moving, others did. Some officers applied the strategy to reporters, others did not. Many officers told people who were standing in small groups on the sidewalks during the daytime hours that they would be arrested if they did not keep moving…

“The rule provided no notice to citizens of what conduct was unlawful, and its enforcement was entirely arbitrary and left to the unfettered discretion of the officers on the street,” Perry states.

On top of that, one police witness (who is not named in the decision) told the court that the rule “only worked well during the daytime when there were no large crowds and no threats of violence – when the crowds grew unruly, telling them to
keep moving was not an effective strategy.” So, no officer can say that this rule was effectively helping officers maintain safety and prevent violence.

Unfortunately, this ruling only addresses the enforcement of a rule concocted specifically to help officers impose their authority over protesters. The judge does not seem to think the officers may have been improperly applying “failure to disperse” law against citizens. “Nothing in this preliminary injunction prevents defendants or any other law enforcement officers from enforcing the Missouri failure-to-disperse law or any other law,” she writes.

Perry embraces the law enforcement viewpoint that protesters have been violent toward police and that law enforcement need all “lawful means to control crowds” at their disposal to prevent acts of violence. “Citizens who wish to gather in the wake of Michael Brown’s tragic death have a constitutional right to do so, but they do not have the right to endanger lives of police officers or other citizens.”

She contends police need to be able to order “a crowd to move or disperse if law enforcement officers believe the crowd is assembled for the purpose of violence or rioting.” Except, to date, no group has been reported to have formed with the “purpose” of committing violence.

Perry inaccurately writes, “Some in the crowds fired guns in the air and at the police,” and, “Both the defendants and the public have a legitimate interest in assuring that police officers, who have been the target of much of the violence in Ferguson, are not hurt.”

According to the St. Louis Post-Dispatch, guns were reportedly fired from a crowd of people on August 16. “Once the police were out of sight, protesters fired guns at least 10 times into the air.” So, if this is what the judge is citing, guns were not fired at police.

There are no confirmed reports of protesters firing any guns at police. There have only been a few confirmed reports of protesters throwing anything at officers. However, there are plenty of confirmed reports out there of police pointing their weapons at protesters. One St. Ann police officer was fired from his job for pointing a rifle at media and saying, “I’ll fucking kill you.” There is a pending lawsuit against Ferguson and St. Louis County police that is pending, which details multiple examples of police assaulting people who had nothing to do with the protests.

Photographs and video from Ferguson show clearly how protesters were surrounded by armored vehicles and had officers in riot gear pointing their weapons at them. They escalated the scene on multiple occasions, creating the moment where officers were in a standoff and felt like firing tear gas indiscriminately was the best way to disperse the crowd.

In other words, aggressive action by police threatens the ability of protesters to safely organize without threat to their rights to assemble. And it is not the police who need to be concerned about having the ability to protect themselves from violence but rather protesters in Ferguson.

CommunityFDL Main BlogThe Dissenter

Judge Blocks ‘5 Second Rule’ as Unconstitutional But Embraces Police Claims About ‘Violent’ Ferguson Protesters

Government photo of Eastern District Court of Missouri building and in the public domain

A United States district court judge issued an order preventing police from continuing to enforce a rule they created and imposed against protesters in Ferguson, which required them to keep moving or face arrest. The judge found that the rule was unconstitutional and acknowledged that commanding officers were well aware that it was “unlawful” to arrest people who were peacefully standing on a sidewalk. However, she embraced the misconception that protesters had been routinely violent against police.

The American Civil Liberties Union (ACLU) chapter in Missouri submitted a lawsuit against the rule on behalf of one of their program associates, Mustafa Abdullah, who had been observing protests in Ferguson and handing out “Know Your Rights” cards after Mike Brown was killed by a Ferguson police officer.

Abdullah was meeting with people on the sidewalk on August 18 when St. Louis County police officers approached him and commanded him to “keep moving.” A person asked Abdullah to pray with her, however, police insisted that they pray while walking. Abdullah was ordered to “keep moving” or face arrest multiple times that day and ultimately left the area because he did not want to be arrested while doing his job.

The ACLU argued the rule infringes upon Abdullah’s First Amendment rights, “including the right to assemble,” and violates the Fourteenth Amendment’s Due Process clause because “the policy fails to provide sufficient notice of what is illegal and because it was enforced arbitrarily.”

Judge Catherine D. Perry decided [PDF] that Abdullah was likely to succeed in proving his claims against St. Louis County and Ronald K. Replogle, superintendent of the Missouri Highway Patrol. (The Highway Patrol had been in charge of coordinating crowd-control in August.)

“The practice of requiring peaceful demonstrators and others to walk, rather than stand still, violates the constitution,” Perry declares. “Because it is likely that these agencies will again apply this unconstitutional policy to plaintiff and the peaceful protesters he wishes to meet with, I will enter a preliminary injunction.”

Perry indicates, “It is also significant that the policymakers actually knew that they could not lawfully arrest people simply for standing peacefully on the sidewalk. The top members of the unified command decided that they would use the failure-to-disperse law as their legal justification for the orders that all the demonstrators must keep moving, but they also knew that to arrest someone legally they would have to have probable cause to believe that six or more people were gathered for the purpose of violence and had refused an order to disperse.”

“The policymakers knew the policy was being used against peaceful citizens but did not stop the practice,” she adds.

Since commanding officers knew this was wrong, Perry determined that Abdullah was likely to prove that St. Louis County was liable for this policy.

“St. Louis County apparently wishes the court to conclude that all of the different officers who took the same actions over a period of several days were doing so on their own, without any orders or directions from the County police department policymakers,” Perry suggests. “This argument is contradicted by the facts of the case. The evidence presented at the hearing indicates that plaintiff will be able to show either a policy – albeit unwritten and vague – or, at the least, a
custom.

“Both the St. Louis County Police Chief and the Precinct Captain who testified were directly involved in developing and enforcing the keep-moving strategy, along with the Highway Patrol Captain who had been placed in charge of the situation by the Governor. This was a deliberate strategy, developed after the unified command structure met and discussed options.” (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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