Police face off with an RNC demonstrator. Photo: Paul Demko, Minnesota Independent

The Republican National Convention opened in St. Paul at the Xcel Energy Center exactly a year ago. Repercussions from the gathering — and, more significantly, the corresponding protests in the streets — continue to be felt today.

The St. Paul Police Department initially vowed that the city would present a welcoming face to Republican delegates and protesters alike. But on the opening day of the convention the streets of downtown St. Paul were lined with hundreds of cops clad head to toe in riot gear. The first day witnessed the most violent clashes of the gathering — with protesters shattering downtown windows and slashing tires, and the cops responding with the liberal use of pepper spray and flash-bang grenades — but the confrontations and arrests would continue throughout the four-day gathering.

By the time John McCain accepted the Republican nomination for president more than 800 people had been arrested, the vast majority of them in mass sweeps. So how many of these people were actually engaged in prosecutable criminal activities? A year later the answer is clear: not many.

Ultimately 676 of these cases were referred to the St. Paul City Attorney’s office for possible misdemeanor charges. But almost immediately the cases began collapsing. It was initially announced that 39 journalists who had been detained would not face criminal charges. Then in February St. Paul City Attorney John Choi let it be known that more than 300 people swept up in a mass arrest on the final night of the RNC would not be prosecuted. Ultimately more than 80 percent of the cases handled by the St. Paul City Attorney’s office didn’t result in charges.

“The overwhelming majority of arrests clearly didn’t have any basis,” says Jordan Kushner, a defense attorney who is handling several RNC-related cases.

Chuck Samuelson, executive director of the Minnesota chapter of the American Civil Liberties Union, argues that the heavy-handed police tactics and large-scale arrests were simply designed to quell dissent. He notes that in 2004, when the RNC was held in New York, there were roughly 500,000 protesters and 1,600 arrests. By contrast, in St. Paul there were an estimated 10,000 protesters and nearly 800 arrests — a strikingly higher ratio.

“The First Amendment is messy, because it allows people to speak their mind,” Samuelson says. “You need to be prepared for messy.”

But Choi maintains that the low rate of successful prosecutions isn’t necessarily indicative of wrongful arrests. He notes that the standards for making arrests and prosecuting charges are very different.

“What we’re looking at is whether we could actually obtain a conviction at trial, prove the charges beyond a reasonable doubt,” Choi says. “That’s a really high bar. When you have situations involving First Amendment issues, mass arrest situations and a confusing fact pattern, it’s really difficult to get to believing that we would have a likelihood of success at trial.”

While the misdemeanor charges handled by Choi’s office have largely evaporated, many of the more serious criminal cases continue to work their way through the courts. On Monday, for instance, the trial of two defendants — Christina Vana and Karen Meissner — began in Ramsey County District Court on charges of aiding and abetting second-degree assault. The pair are accused of throwing a metal sign off the Marion Street bridge onto Interstate 94.

Other high-profile felony cases have resulted in guilty pleas. Bradley Crowder and David McKay, activists from Austin, Texas, eventually pleaded guilty to federal charges related to manufacturing molotov cocktails. In May, Crowder was sentenced to 24 months in prison. That same month McKay, whose initial trial resulted in a hung jury, received a 48-month sentence.

But the most conspicuous criminal charges, those involving the so-called RNC Eight, look to still be a long ways from trial. The eight defendants are charged with an elaborate, nationwide criminal conspiracy to disrupt — and ultimately bring to a halt –  the convention. In a series of raids during the days leading up to the convention, Ramsey County Sheriff’s deputies seized seized smoke bombs, sling shots, bottles of vinegar, buckets of nails and other purported evidence of this conspiracy.

The eight activists alleged to be behind the criminal plot — Erik Oseland, Eryn Trimmer, Garrett Fitzgerald, Luce Guillen-Givens, Max Specktor, Monica Bicking, Rob Czernik and Nathanael Secor — were initially charged with felony counts of conspiracy to commit riot in the second degree in furtherance of terrorism. In March, however, the more incendiary terrorism aspect of the charges was dropped by the Ramsey County Attorney’s Office.

But attorney Larry Leventhal, who is representing Specktor, argues that the terrorism designation has already damaged the reputations of the defendants. “Everybody’s against terrorism,” he notes. “You use words like that for inflammatory purposes.”

The cases were slated for a hearing last month, but it got postponed owing to a scheduling conflict. Two thorny issues must be settled before they can proceed to trial: whether all the defendants will be tried together and exactly what evidence will be deemed admissable. No trial date has been set. The defendants have stated repeatedly that they intend to fight the charges.

“I am not going to take a plea bargain,” says Rob Czernik. “I want to fight this. I want to see it through to the end. If I get found guilty I get found gulty. I’m not going to go down without a fight.”

Czernik and others largely blame the prosecutions on the strong-arm tactics of the Ramsey County Sherrif’s Department, which conducted the undercover investigations that led to the RNC Eight arrests. In particular, they believe Sheriff Bob Fletcher was guilty of fear-mongering with regards to the aims of anti-RNC activists.

“I totally think this is a creation of Bob Fletcher’s mind,” Czernik says of the investgation.

But Fletcher says the strength of the evidence will ultimately be weighed by a jury. “That’s why we have a court system,” he says. “The facts will speak for themselves at trial.”

Even less settled than criminal matters is the civil litigation resulting from RNC activities. Many cases are just now entering the court system. In February, for example, seven cases were filed in U.S. District Court by plaintiffs charging that their civil rights were violated.

On Tuesday a class-action lawsuit is expected to be filed on behalf of individuals who were arrested during a mass sweep on the first day of the RNC. According to Robert Kolstad, one of three attorneys handling the  case, there will initially be two dozen plaintiffs attached to the case, but the list of litigants could grow to as many as 200 individuals.

The City of St. Paul (or any other government entity involved in RNC security) won’t likely be on the hook for a dime from such lawsuits. That’s in part because the city negotiated with the Minneapolis-St. Paul 1008 Host Committee — the nonprofit group charged with organizing the event — to purchase a $10 million insurance policy to cover any legal liabilities. Some have argued that this allowed officers to behave with impunity when facing off with protesters.

“It was carte blanche for the police to do whatever they wanted,” says defense attorney Kushner. “They didn’t have any financial liability to face so they had no disincentive for violating people’s rights.”

But Choi states that this theory is “fatally flawed.” He points out that the city is always covered by an insurance policy for police actions. The only difference in this instance was that the RNC host committee picked up the tab for the plan. “No matter what we would have had insurance,” he says.

How much will ultimately be paid out in lawsuits likely won’t be known for years. But the damage to the credibility of the cops is likely irreparable in the minds of many activists.

In part that’s because the expectation created by the St. Paul Police Department of a relatively benign security presence during the RNC hardly gelled with reality. This was among the criticisms voiced by former U.S. Attorney Tom Heffelfinger and former federal prosecutor Andy Luger in an 82-page report on RNC policing that was released in January. It’s a viewpoint that’s also shared by Fletcher.

“It was a flawed attempt to keep everyone happy,” he says. “What was needed was more honesty about the type of enforcement that was gong to occur.”

The Minnesota chapter of the ACLU is currently suing Fletcher’s office over the seizure of literature in the days leading up to the RNC. But Samuelson agrees that Minnesotans were misled about what to expect during the RNC and weren’t prepared for the heavy presence of law enforcement.

“The people of this state believed what they were told by law enforcement,” he says. “I think maybe a lot more skepticism might be in order the next time we entertain one of these events.”

The RNC Eight, accused of a criminal conspiracy to wreak chaos during the Republican National Convention, are unlikely to go on trial for at least another six months. But the battle to shape public opinion on the high-profile case has been taking place since the moment of their arrests on the eve of the St. Paul convention in early September.

At a hearing Tuesday afternoon before Ramsey County District Court Judge Teresa Warner, attorneys for the prosecution and defense traded charges over which side had stepped over the line in attempting to manipulate media coverage. Previously Judge Salvador Rosas, who is no longer hearing the case, had warned both sides to be cautious in their public relations machinations.

The prosecution is now seeking an order barring the defense from leaking nonpublic evidence to the media. As evidence of the need for such a prohibition, Assistant County Attorney Heidi Westby cited a Star Tribune article from Dec. 1 based on the review of 1,000 pages of documents provided by a source. The reports detailed the infiltration of the RNC Welcoming Committee by undercover deputies from the Ramsey County Sheriff’s Office.

Westby stated that attorneys for the eight defendants were the only ones with access to the documents. She further argued that the evidence includes private individual information, such as juvenile arrest records and financial data.

“They had not been disclosed to anyone else,” she said of the evidence. “This case should not be tried in the press.”

But attorneys for the two defendants in court today — Max Specktor and Monica Bicking — countered that Ramsey County officials are the ones guilty of trying to game the legal process through media manipulation. They noted that Ramsey County Sheriff Bob Fletcher and County Attorney Susan Gaertner have held press conferences and released evidence unavailable to defense attorneys.

Attorney Larry Leventhal, who represents Specktor, accused the prosecution of seeking to control media coverage by muzzling the defense. “I think she’s being exceedingly disingenuous,” Leventhal said of Westby. “They are attempting to monopolize the conversation.”

Attorney Bruce Nestor, who represents Bicking, said that the prosecution has consistently utilized evidence unavailable to the defense — including ballistics tests and lab reports — to tar their clients in the media. “For months my clients have been attacked in the press,” he said. “There was a purpose to that, and it’s to prejudice my clients to the public.”

Judge Warner did not rule on the matter. Similar preliminary hearings will be held for the remaining defendants — Erik Oseland, Eryn Trimmer, Garrett Fitzgerald, Luce Guillen-Givens, Nathanael Secor and Rob Czernik — over the next week. The cases are currently expected to go to trial in September. Only about 15 percent of the more than 700 people arrested during the RNC have been charged with crimes.

At the close of Tuesday’s hearing, Warner counseled both sides not to engage in behavior that will taint the case. “I won’t tolerate any games being played, any shenanigans,” she said. “We’ll try this case in the courtroom on the evidence that’s presented.”

(Photo courtesy of Friends of the RNC 8)

But attorneys for the group successfully argued that the hearing should be postponed so that they can have more time to obtain and examine the evidence against their clients. The six defendants are now slated to appear back in court on November 10.

But a meeting slated for this week before Chief Ramsey County Judge Kathleen Gearin will likely alter that schedule. The eight cases are expected to be assigned to a single judge so that they can proceed more efficiently.

The RNC 8 members were arrested in the days leading up to the Republican National Convention and charged with a single count of “conspiracy to commit riot in the second degree in furtherance of terrorism.” The criminal complaint alleges that they were involved in an elaborate, nationwide plot to disrupt the convention that included plans to kidnap delegates, attack cops with urine and molotov cocktails and ultimately bring the proceedings to a standstill.

Attorney Larry Leventhal, who is representing Max Jacob Specktor, said after the aborted court hearing that the defense team needs additional time to scrutinize the evidence and tactics used to build the case against their clients, such as the use of confidential informants. “We really think it’s not going to show that there was a conspiracy to riot in support of terrorism,” he said. Leventhal added that the attorneys also want to examine what role the Federal Bureau of Investigation played in the investigation. “We believe they were probably directing the operation,” he said.

The other defendants are Nathanael David Secor, Luce Guillen-Givins, Robert Joseph, Erik Charles Oseland, Garrett Scott Fitzgerald, Monica Rachel Bicking and Garrett Scott Fitzgerald

Now the Bloomington City Council is poised to dive back into those same waters. On Sunday, Bloomington got authority from the state Legislature to impose new sales taxes that would help fund a planned Mall of America expansion. And Monday night the Council adopted new restrictions on public assemblies, in anticipation of Republican National Convention protests that could spill from St. Paul into Bloomington’s streets, hotels and the environs of the mall itself.

Minneapolis attorney Marshall Tanick tells Minnesota Monitor the convergence of new protest regulations and another round of public investment at the Mall of America may reopen issues that seemed settled after the State v. Wicklund opinion. Tanick has written frequently about the specialized field of mall law, most recently in Minnesota Lawyer, where he compared the Wicklund case to a December 2007 California Supreme Court ruling permitting public protests in malls. Along with residents of other states where courts rulings have diverged from Wicklund, Californians, he concluded, enjoy far broader free-speech rights in their shopping malls than Minnesotans.

Steven P. Aggergaard, another local attorney, delved deeply into the question of free speech in publicly funded, privately owned spaces in a 2006 law review article. He thought he saw light shining through the seeming wall the state Supreme Court erected with its Wicklund opinion. He agreed with the trial judge that the state constitution seems to offer protections for speech in places built using public funds – particularly speech directly tied to the political process, as demonstrations during the Republican convention likely would be.

“Nice try,” says Sandra Johnson, the associate city attorney in Bloomington, who prosecuted the case against the fur protesters in the 1990s and drafted the new public assembly ordinance for the city. She finds Aggergaard’s arguments “wishful thinking” and takes pride in the unanimous Wicklund ruling for which she argued. A self-professed free-speech geek whose job obliges her to approach the issue from the side of the regulators, Johnson said that beyond providing for public safety, the proposed ordinance is intended to eliminate opportunities for city staffers processing parade permits to impose arbitrary costs or free-speech limits on particular applicants.

Teresa Nelson worked on a friend-of-the-court brief supporting the protesters in the Wicklund case as a new lawyer with the Minnesota Civil Liberties Union. Now the staff attorney for the renamed American Civil Liberties Union – Minnesota, Nelson found fault with the new Bloomington ordinance as originally proposed and met with Johnson last week to suggest changes. The new version is “greatly improved,” she told Minnesota Monitor before the Bloomington City Council acted Monday, but still vulnerable to constitutional challenge on two points: requiring applicants to indemnify the city against harm, and giving the police chief the discretion to require applicants to obtain insurance for their planned events. Even if city officials have the best, most unbiased intentions, Nelson says, an insurance company could easily require certain groups to pay more for coverage. And some courts haven’t been sympathetic to the kinds of exemptions the ordinance offers for religious, educational and government applicants.

The Bloomington City Council voted 6-1 Monday to approve the revised permit requirements Johnson proposed, but not before making further changes, including several sparked by Council Member Amy Grady. Her vision of a simple, 52-mom, anti-war demonstration hit by high permit fees, insurance requirements and failing those, misdemeanor charges, seemed to turn council opinion. They removed the insurance (though not the indemnification) requirement, dropped the penalty to a petty misdemeanor, and made the protest permit fee $15 instead of $60.

Continued: Click “Read More”Background: The Wicklund case

The 10 or so fur protesters arrested for urging shoppers to boycott Macy’s inside the Mall of America just before noon on May 19, 1996, got more attention than they could have imagined. Hennepin County District Judge Jack Nordby rejected a motion from their attorney, Larry Leventhal, to dismiss trespass charges. But Nordby did so with a 62-page ruling asserting that the Minnesota Constitution protected their right to protest in a public place that had received significant public funding.

His unusual treatise on Minnesota’s higher standard of protection for free speech prompted an unusual pre-trial appeal from the prosecution and ultimately resulted in the unanimous ruling by the state Supreme Court that rejected Nordby’s argument and returned the case to his court. In his verdict at the trial shortly thereafter, Nordby lambasted the Supreme Court, and nine years later the high court’s slap still burns him. “It was a terrible, dishonest opinion that misrepresented my argument and the state constitution,” Nordby said Sunday in an interview. Leventhal, who defended the 1990s mall protesters pro bono, likewise told the Minnesota Monitor he found the Wicklund opinion “very disappointing” because it “circumvents the rights of free speech. Citizens should be able to share in the benefits if governments erect alternative Main Street areas” — such as the Mall of America.

Leventhal’s arguments lost in the state Supreme Court — resoundingly — and protesting without private permission inside the Mall of America remains illegal. But two stops up the Hiawatha Light Rail Transit Line from the mall, another privately owned public square has sprung up since the Wicklund case: a development called Bloomington Central Station. Government provided $3.5 million of the $4 million that went into the centerpiece of the 50-acre mixed-use development: a 1.9-acre, privately owned and operated plaza. Bloomington retained an easement to use the plaza as a public park. Indeed, the city’s Web site describes Bloomington Central Station Park, which opened last June, as “a public park featuring seating areas, garden rooms, water walls and fountains, paved and lighted walkways, and public art,” and Bloomington’s park and recreation department is sponsoring a public concert series there this summer. Earlier planning documents blurred the public and private to pitch the project promising a “central open plaza/park that democratically allows tenants to leverage this special asset” with “a ‘living street’ similar to a plaza or town square.” Both attorneys — Bloomington’s Nelson and ACLU-MN’s Johnson — found the prospect of applications for public assemblies there intriguing from a free-speech standpoint.

With all the legal and linguistic line-blurring it’s not surprising that, as urban expert Judith Martin observes, most Americans are confused about what is public space and what is not, and where their free-speech rights seem to apply. (Martin, who chairs the urban studies department at the University of Minnesota and long served as president of the Minneapolis City Planning Commission, testified as an expert witness in the Wicklund case.) The trend among governments and developers, Martin told the Minnesota Monitor, is “to reduce the possible spaces where that kind of perceived freedom is actual freedom.”
]]> http://minnesotaindependent.com/3965/public-funds-private-mall-expansion-rncs-approach-may-re-open-free-speech-question-at-moa/feed 0