Article of Interest

Bringing the Keep-Moving Ruling to a Halt
By: Tommy Clancy

On October 6, 2014, the Federal District Court for the Eastern District of Missouri issued an important decision protecting the due process and First Amendment rights of peaceful protesters and concerned citizens in Ferguson, Missouri.

Following the shooting death of Michael Brown, an unarmed black teenager, by a Ferguson police officer, daily protests engulfed the streets of Ferguson. The protests were largely peaceful; however, certain acts of violence were committed, overwhelmingly late at night.

On August 18, the County of St. Louis and the Missouri State Highway Patrol began enforcing a policy whereby citizens gathered in the main protest area were prohibited from standing still. As an unwritten policy, its exact terms or contours were never clear. Some people were told that they could not stand still for more than five seconds, others were told that they could not stand still at all. At times, officers indicated that the protesters had to be walking in a certain direction, whereas at other times officers just indicated the protesters had to keep moving.

Mustafa Abdullah, a program associate for the ACLU of Missouri, went to the protest area on August 18. In the span of roughly one hour, Mr. Abdullah was told no fewer than five times to keep moving and threatened with arrest if he did not. In one instance, Mr. Abdullah was threatened with arrest for stopping to pray with another person.

That same day, Mr. Abdullah filed suit in the Federal District Court for the Eastern District of Missouri. He argued that the policy to keep protesters moving violated his First and Fourteenth Amendment rights and moved for a temporary restraining order enjoining the rule. The court denied the TRO based in part on Missouri State Highway Patrol’s representation that it had established an alternative protest zone and was moving protesters to that alternative area.

After Mr. Abdullah was denied the TRO, the ACLU of Missouri brought on Munger, Tolles and Olson LLP as cooperating counsel to assist in bringing a motion for a preliminary injunction.

Mr. Abdullah filed his motion on August 26, 2014. Supported by fact witness declarations, Mr. Abdullah argued that no protester assembly zone had been set up at the time the Missouri State Highway Patrol had represented that it had been, that the Protester Assembly Zone that had been established was nothing more than an empty parking lot that was not an adequate alternative channel for speech, and further that protesters were not being directed to the Protester Assembly Zone.

Mr. Abdullah also established that the keep-moving rule was being enforced inconsistently—sometimes not at all and sometimes against only certain groups of individuals. It was also being enforced largely during the day, against individuals doing nothing more than stopping to pray, to catch their breath, or speaking with members of the media. Through the declaration of his expert witness, Mr. Abdullah asserted that the keep-moving rule was not part of any police best practices.

Mr. Abdullah argued that the policy infringed on his due process rights because the unwritten policy, enforced in various ways at various times, did not give him fair notice of what conduct was prohibited and gave officers excessive discretion. Further, Mr. Abdullah argued that the keep-moving rule infringed on his First Amendment rights. The keep-moving rule, Mr. Abdullah argued, was not a valid time, place, manner restriction that was neutrally applied in a narrowly tailored fashion.

Defendants responded by arguing that, in fact there had never been a keep-moving policy at all, and that the policy being enforced in the protest area was actually Missouri’s Refusal to Disperse Statute. Further, the state and county argued that if such a policy did exist, they were no long enforcing it. The state further argued that any such policy to keep protesters moving would be a legitimate police tactic to decrease the threat of violence. The county argued that it could not be held responsible for any keep-moving policy because it was acting under the state’s direction.

After a preliminary injunction hearing where Mr. Abdullah presented seven witnesses, and the state and county each presented two witnesses, the court granted Mr. Abdullah’s motion for a preliminary injunction.

The court found that the county and the MSHP had decided on a strategy to keep protesters moving and from standing still, and that this strategy was not the enforcement of Missouri’s Refusal to Disperse Statute. The court found that officers were given discretion in enforcing the keep-moving rule but were not told any circumstances or factors to use in employing that discretion. The court credited Mr. Abdullah’s testimony and the testimony of his witnesses, who had testified about having the rule enforced against them during the day, when there were no large violent crowds, while they were engaged in activities such as protesting, praying, and talking to the media.

Against this factual backdrop, the court found that plaintiff was likely to succeed in showing that the keep-moving rule violated his due process rights both because it gave officers too much discretion and because it gave citizens too little notice. The court found that “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.”

TOMMY CLANCY’s bio can be found by clicking here.