On Jan. 14, authorities in Bloomington, Minnesota, filed criminal charges against 10 members of the Black Lives Matter Minneapolis group in connection with a large-scale peaceful protest at the Mall of America last month. An additional two dozen protesters were arrested for trespassing during the Dec. 20 demonstration. They may yet be charged. City attorney Sandra Johnson has said she wants to make the organizers pay for police costs and for the mall’s costs incurred in the form of additional security.
Johnson, who is prosecuting civil rights leaders to discourage protest, needs to hear a message from Martin Luther King Jr. In his 1963 “Letter From a Birmingham Jail,” King explained why civil disobedience is necessary. As with the #BlackLivesMatter organizers in Minnesota, he was charged with breaking the law. But for protesters in Bloomington and in Birmingham, Alabama, injustice done in the name of law was more important than the law that forbade their protest.
In Birmingham, protesters marched and participated in sit-ins to challenge laws that established segregation. On Dec. 20, #BlackLivesMatter protesters in Bloomington assembled in the mall, sang and staged die-ins to protest police brutality against black men and women, as part of the nationwide protests against the failure to indict the two police officers who killed Michael Brown in Missouri and Eric Garner in New York.
King wrote his letter to clergymen who called the protest that led to his arrest “unwise and untimely.” Apparently, the protest at the Mall of America was also untimely and inconvenient. On a busy Saturday before Christmas, the mall didn’t have time or space to welcome the #BlackLivesMatter protest. After all, it is private property, meaning that anyone who enters the mall with a purpose other than spending money may be declared a trespasser. But the mall also receives millions of dollars in public financing.
“You deplore the demonstrations taking place in Birmingham,” King reminded his critics, admonishing them for failing “to express a similar concern for the conditions that brought about the demonstrations.”
What would that kind of concern look like?
In the weeks before the protest at the Mall of America, #BlackLivesMatter protesters in Minneapolis and St. Paul held rallies in front of local police stations. They marched through city streets and on highways. At times they shut down roadways. The public authorities and police exercised discretion and allowed the protests to proceed. They made no arrests for blocking public streets or walking on freeways. Public officials expressed concern for the conditions that led to the demonstrations far more than for the inconvenience to motorists whose routes were temporarily blocked.
By contrast, Bloomington demonstrated the highest level of concern for the convenience and preferences of the mall’s owners. Undercover police were sent to public organizing meetings before the protest. Police also monitored the group’s online presence and signed up for text messages to remain informed of the demonstration’s plans.
The Mall of America is no stranger to public awareness campaigns. For example, just nine days earlier, it welcomed more than 7,000 people into its rotunda after the death of Zack Sobiech to raise awareness about cancer. The mall’s management expressed concern for people with cancer. But in the aftermath of the Brown and Garner deaths, the mall rejected thousands of people who arrived at its rotunda to sing and raise awareness about police brutality.
Why protest to raise awareness? Why march in the streets and sing in malls? As King explained in his 1963 letter, nonviolent action “seeks so to dramatize the issue that it can no longer be ignored.” He wrote that such actions are necessary both to create a crisis and to foster tension that will force communities to confront the issue at hand.
The city of Bloomington and the Mall of America brought in police from other jurisdictions. They assembled an overwhelming police presence to intimidate peaceful protesters. Before the march, police warned that protesters would be arrested and tried to get the organizers to move to another location, outside the mall. Protesters refused, since their aim was to get their message in front of the thousands of shoppers, not to stage a demonstration in a vacant lot.
The protest remained peaceful. No injuries or property damage were reported. The protesters did not bar shoppers from the mall; it was the police and mall management that shut down large parts of the mall during the protest, refusing to let people in or out.
The city attorney wants to send a message to future protesters: Public protest in the Mall of America carries a high cost. The 10 defendants have been charged with eight misdemeanors. Each count could result in 90 days in jail and a $1,000 fine. Johnson has said she will seek restitution, meaning that she will ask the court to order the organizers to pay for an estimated $25,000 in city policing costs and $8,000 for the mall’s security costs.
The American Civil Liberties Union of Minnesota has criticized the city’s action, characterizing the lawsuit as a “slippery slope when charging demonstrators to cover the cost of law enforcement used during a demonstration.” Civil rights attorney and law professor Nekima Levy-Pounds — one of the 10 defendants in the case — has said the charges amount to “not only prosecutorial overreach but political prosecution.”
When protest targets injustice, public officials, police and prosecutors make choices about where they stand. Prosecutors can exercise their discretion to charge or not to charge, to seek a token sentence of community service or to try to hammer protesters with the full weight of available penalties.
As we celebrate King's life and legacy, we look to the progress made since 1963 — and there has been progress — but also to the discrimination and injustices that persist. Nowhere are those injustices more glaring and more outrageous than in the criminal justice system. As with the police and prosecutors in the city of Birmingham in 1963, Bloomington’s city attorney may have legal ground for prosecution, but she stands on the wrong side of history.