The American Civil Liberties Union of Eastern Missouri challenged the so-called “five-second rule” in federal court Monday during a preliminary injunction hearing. The ACLU filed the motion after the “five-second rule” was first implemented on August 18 and a temporary restraining order was sought. A judge denied that request. The suit claims that the “five-second rule,” which prohibits the length of time protesters may gather in a particular area, violates due process and the First Amendment.
The ACLU argued that law enforcement officials “arbitrarily” and “inconsistently” imposed the rule on protesters who gathered to demonstrate in the weeks following the fatal shooting of Michael Brown by Ferguson Police Officer Darren Wilson on August 9. Grant Doty, ACLU staff attorney, testified that the rule seemed to be disproportionately focused on minorities, particularly younger minorities. Video shot by protester and “documenter” Johnetta Elzie, a witness in the case, was shown in court. Elzie shot the video during protests near Ferguson Police Headquarters on Saturday, September 27—a day when law enforcement officials enforced the “Keep Walking” ordinance.
“Do you know where the Free Assembly Zone is where we can just stand and protest,” Elzie could be heard in the video asking a Ferguson police officer.
“There isn’t one,” the officer replied.
She testified that tensions are high in Ferguson and that protestors are fearful.
“I personally never know what’s going to happen,” she said.
Mustafa Abdullah, program associate with the ACLU, testified that as a legal observer he ensures that the rights of citizens are protected and serves as a “bridge builder” between police and protesters. Abdullah said that he along with ACLU Executive Director Jeffrey Mittman conducted an impromptu Know Your Rights Q&A session with protesters on Saturday. In a Youtube video, a woman commented that she thought constitutional rights override any city ordinance.
“It does by law and that’s why we’re in court on Monday,” Mittman said in the video.
In compliance with the “Keep Moving” ordinance, a small group of protesters legally blocked traffic on S. Florissant Road on bikes (and a skateboard) Sunday afternoon. Among them was Ferguson resident Angelique Kidd who took up the rear. Motorists forced to a crawl caught a glimpse of her back bearing a cardboard sign that read “Hands Up! Don’t Shoot!” An American flag was perched inside her bike’s basket.
Abdullah testified that the lack of “clear” and “consistent” enforcement of the “five-second rule” by law enforcement officials has increased tensions in Ferguson. He expressed concern for public safety and said he has advised protesters not to defy police orders. On August 18, Abdullah said in his declaration that he was ordered to refrain from gathering or standing for more than five seconds on public sidewalks or to leave the area. Abdullah said he became “timid” and “nervous” at the threat of arrest.
Several St. Louis County Police Department and Missouri State Highway Patrol officials testified for the defense, including St. Louis County Police Chief Jon Belmar. Belmar testified that operational decisions were carried out by Missouri State Highway Patrol Capt. Ron Johnson, after Gov. Jay Nixon implemented a curfew and declared a state of emergency on August 16. Belmar said, at that point, he no longer had the final say once the executive order was issued and said he felt “undermined.” Belmar said he supported Capt. Johnson’s decision to keep people moving in an attempt to curtail “flash points” from large crowds.
“If we keep the crowds moving,” Belmar said, “less criminal activity in a static area.”
St. Louis County Police Capt. Jeffrey Bader argued that officers were told to use their discretion and take action when it benefitted the greater good. Protesters have faced threats of arrest under the failure to disperse statute from officers granted the discretion to selectively enforce the “five-second rule.” ACLU argued that in order to make an arrest under the failure to disperse statute, there needed to be an unlawful assembly or riot. Judge Catherine D. Perry will rule on the decision.
Follow this reporter on Twitter: @BridjesONeil | E-mail this reporter: boneil@stlamerican.com