Twenty-seven Minnesota legislators—all Republican—have signed on as co-authors to House File 322, a bill that would allow government agencies to file civil lawsuits against individuals to recover costs of police presence and response, along with “related legal, administrative and court costs,” to any person convicted of participating in an unlawful assembly, to any person present at an unlawful assembly, or any person committing public nuisance. (I read the latter two as not requiring a conviction, but the wording is unclear.)
This is troubling. It’s worse than criminalizing protest: it’s profiteering from protest. It’s unnecessary, imprudent, unconstitutional, and racist.
There’s no question that protest is a sacred element of American democracy, and there’s also no question that sometimes protest leads to public safety hazards. Protest is a First Amendment right; nuance and careful consideration of facts, circumstances, and liberties are required in how law enforcement prepares for, responds to, and protects (yes, that too) our right to protest. But HF 322 eliminates that circumspection, allowing government to use the power of the courts not through established prosecutorial means—where individual and direct culpability are considered—but rather through unbounded civil litigation.
The First Amendment does have boundaries, and some demonstrators choose to overstep them, usually through non-violent acts of civil disobedience. But the law already provides restitution as an available remedy to prosecutors: as part of a sentence, a judge can order “…payment of compensation to a government entity that incurs loss as a direct result of a crime.”
That “loss as a direct result of a crime” standard is an important one—individual culpability is required to secure a criminal conviction—and it’s something HF 322 seeks to circumvent.
Consider the 2014 Black Lives Matter protest at the Mall of America. Prior to the start of the protest, Bloomington Police put out a call to other law enforcement agencies in the metro area to send more officers. In court records, Bloomington stated their agency’s personnel and overtime costs alone exceeded $25,000, and that businesses at the Mall lost income because they had to close down.
But was all that necessary?
Police—and police alone—decided what personnel levels, equipment, and costs were required; a unilateral government spending decision with no checks and balances. In fact, in a review of court records, email exchanges, and police radio communications, it was actually law enforcement and Mall administration who made decisions to close down mall entrances, to shut doors to businesses, and to refuse entry to the Mall to holiday shoppers. In body camera and surveillance videos, many officers appear to be standing around and doing nothing for extended periods of time.
While unlawful assembly charges against demonstrators were dismissed by a judge, prosecutors did obtain some convictions. If HF 322 had been law, would the City theoretically sue individual protesters for $25,000—not based on individualized, direct, or actual damage—but instead simply because police deemed their spending necessary in the name of public safety? Would each agency who responded get to file a separate lawsuit of their own? How is the $25,000 divided, or is each defendant on the hook for the full amount?
Consider also the 18-day-long protest outside the Minneapolis Police Department’s 4th Precinct in 2015, following the police shooting death of Jamar Clark. Payroll, overtime, and meal costs for police staff exceeded $1 million. That’s not a typo. When police cleared out the protest, just eight people were arrested. Would they be on the hook for a million dollars?
This is the fox guarding the hen house: police are financially incentivized to overstate risks to public safety to earn overtime pay. Which is not to say officers don’t deserve overtime pay for responding to genuine emergencies, but law enforcement agencies should be accountable for their choices. HF 322 pushes that accountability onto demonstrators exercising their First Amendment rights.
But it gets worse.
HF 322 allows civil litigation for a person’s mere presence at an unlawful assembly. If you’re a journalist documenting the scene of a notable civil rights protest, you can be sued for money by police. If you don’t defend yourself in court, the government will obtain a default judgment against you, and your wages can be garnished, your bank account levied, and your property seized. If you don’t get sued right away and later write a story that—for example—irritates the elected sheriff, surprise: you can be sued possibly up to six years after the protest, because HF 322 establishes no separate statute of limitations.
HF 322 is also a risk to Fourth Amendment rights. The bill concludes by saying, “a civil action may be commenced as is any civil action.” And as in the case in most civil actions, the parties to a lawsuit have broad discovery rights. Law enforcement could try to use an HF 322 civil lawsuit to snatch up hard drives and email accounts to find other defendants to sue, or develop ‘intelligence’ on protest movements and the people within them.
Of course, this—and every aspect of HF 322—would be vigorously challenged and appealed by civil rights organizations at every turn in the road. For a law enforcement agency seeking to recoup some costs, they’re likely spending more on the litigation itself—distracting government away from prosecuting serious and violent crimes, ultimately costing taxpayers even more money.
But finally, and perhaps the biggest issue of all: race.
Stating the obvious, this is an anti-Black Lives Matter bill. It targets activists of color, but was co-authored by a sea of white Republicans. It targets protests happening in the inner metro area and downtown, but the co-authoring legislators are all from suburban, exurban, and rural outstate Minnesota.
People in urban communities and people of color have representation in the Legislature, and not a single one of their legislators are backing this bill. If the communities allegedly suffering these costs aren’t asking for this legislation, why introduce it?
Through institutional racism and lack of opportunity, inner-city families of color are frequently below the poverty line. In the community Jamar Clark was killed in—where I live—over a third of families live below the poverty line. They might not have much money, but they do have their voices and bodies. HF 322 would take those too, threatening financial ruin for anyone who dares challenge the state.
And what HF 322 does to quell dissent by discouraging allies from joining a cause is nothing short of depraved.
Allies play a role in combating systemic racism and poverty, and white allies showing up to protest events and sacrificing their liberty alongside activists of color grant more credibility and urgency to the cause, in the eyes of those who normally wouldn’t pay attention. But if HF 322 were law, someone not personally impacted by an issue—perhaps someone with more money in their bank account—might not join the cause, and might not go protest. If a $1 million judgment comes down on a group of people, those with greater resources are naturally on the hook for more.
Jason Sole, President of the Minneapolis NAACP wrote:
“The burdens of these restrictions would be disproportionately borne by people least able to pay large settlements. HF322 would give police departments a blank check to overreact to public protests. It would also provide an incentive to categorize peaceful demonstrations as “unlawful assemblies” and to charge as many people and collect as much money as possible. In Minnesota, we don’t sue sports fans for extra policing costs associated with events. We don’t charge bar patrons an extra fee at closing time for increased police presence. Protecting the right to protest is part of the role of law enforcement, not something for which citizens are expected to pay extra.”
In the most favorable light, HF 322 is an unnecessary enabler of waste, fraud, and abuse. But in reality, it creates serious public policy concerns, only a few of which I’ve stated here.
There are no shortage of issues impacting the quality of life of Minnesotans. This, however, lands nowhere near the top of the list in terms of economic loss or issues warranting legislative action. But with over a third of House Republicans not just supporting this legislation, but lining up to be co-authors, it’s a signal that racism and the curtailing of rights has become the priority—the mandate—of the Minnesota GOP.