Re­sis­tance meets re­sis­tance as bills tar­get demon­stra­tors

Law­mak­ers in 8 states con­sider mea­sures aimed at dis­rup­tive pro­test­ers

The Washington Post Sunday - - FRONT PAGE - BY TOM JACKMAN

The protests of 2016, against pipe­lines and po­lice shoot­ings and a pres­i­den­tial can­di­date, have sparked law­mak­ers in eight states to con­sider bills boost­ing penal­ties for un­law­ful demon­stra­tions. They in­clude one that would pro­tect driv­ers who “un­in­ten­tion­ally” run over ac­tivists block­ing roads and an­other aimed at forc­ing pro­test­ers to pay up to three times the costs of any dam­age they caused.

In Wash­ing­ton state, a law- maker termed some protests “eco­nomic ter­ror­ism” and in­tro­duced a bill that would per­mit judges to tack on an ad­di­tional year in jail to a sen­tence if the pro­tester was “at­tempt­ing to or caus­ing an eco­nomic dis­rup­tion.”

In Min­nesota, a per­son con­victed of par­tic­i­pat­ing or be­ing present at “an un­law­ful as­sem­bly” could be held li­able for costs in­curred by po­lice and other pub­lic agen­cies.

And in In­di­ana, a pro­posed law would di­rect po­lice en­coun­ter­ing a mass traf­fic ob­struc­tion to clear the road by “any means nec­es­sary,” echo­ing a phrase made fa­mous by Mal­colm X dur­ing the 1960s civil rights move­ment.

“We’re not try­ing to re­strict peo­ple’s right to protest peace­ably,” said Iowa state Sen. Jake

Chap­man (R), in com­ments sim­i­lar to those by leg­is­la­tors in­volved with each of the mea­sures. He in­tro­duced his bill, in­creas­ing the penalty for block­ing a high-speed high­way from a mis­de­meanor to a felony pun­ish­able by up to five years in prison, af­ter an an­tiDon­ald Trump protest by high school stu­dents in Novem­ber blocked one di­rec­tion of In­ter­state 80 for 30 min­utes. “But there’s ap­pro­pri­ate places and times. And the in­ter­state is not one of those places . . . . Right now they’re go­ing to get charged with jay­walk­ing and fined $35. That doesn’t fit the crime, in my opin­ion.”

Lee Row­land, a se­nior staff at­tor­ney with the Amer­i­can Civil Lib­er­ties Union spe­cial­iz­ing in First Amend­ment is­sues, said she had seen oc­ca­sional at­tempts to crack down on protests over the years.

“But I’ve never seen a co­or­di­nated at­tack on pro­test­ers’ rights any­where near this scale,” Row­land said. “What all of these bills have in com­mon is they may be dressed up as be­ing about ob­struc­tion or pub­lic safety, but make no mis­take about it: These are about sup­press­ing protests with dra­co­nian penal­ties so that the av­er­age per­son would think twice be­fore get­ting out on the street and mak­ing their voice heard.”

Cody Hall, a mem­ber of the Lakota tribe who was ar­rested while protest­ing the Dakota Ac­cess pipe­line in North Dakota, said the mea­sures would set back civil rights.

“We’re go­ing back­wards 60 years,” Hall said. “It’s okay to use your ve­hi­cle to run down pro­test­ers? How is it that pro­test­ers are not con­sid­ered hu­man be­ings? It’s my free speech — we can do this. You’re go­ing to get peo­ple who say, ‘Hey, the law backs us. We can run peo­ple over.’ ”

None of the mea­sures have passed yet. All have been pro­posed by Repub­li­cans. Row­land called them “un­doubt­edly un­con­sti­tu­tional” and said the ACLU would chal­lenge any which are signed into law.

But their spon­sors said they re­flect the pub­lic’s frus­tra­tion with pro­longed, dis­rup­tive protests, such as those at the Dakota Ac­cess pipe­line, where demon­stra­tors have camped for months, and the Black Lives Mat­ter protests around the Min­neapo­lis area, which have at times closed parts of the famed Mall of Amer­ica.

Most states have laws re­strict­ing protests at fu­ner­als, af­ter protests out­side mil­i­tary ser­vices prompted out­rage, and fed­eral law and some states reg­u­late protests near abor­tion clin­ics. But Jonathan Grif­fin of the Na­tional Con­fer­ence of State Leg­is­la­tures said he had not seen such a spate of bills ad­dress­ing protests in gen­eral.

The pend­ing bills mostly were not cre­ated as a re­sponse to protests against Pres­i­dent Trump, the spon­sors said. But as Amer­ica’s po­lit­i­cal de­bate be­comes more frac­tious, as seen by last week­end’s spon­ta­neous demon­stra­tions against Trump’s new im­mi­gra­tion ex­ec­u­tive or­der, the pro­pos­als take on new mean­ing.

Peace­ful protests have oc­curred through­out his­tory, noted Ta­mara Madensen, a crim­i­nal jus­tice pro­fes­sor at the Univer­sity of Nevada at Las Ve­gas, who stud­ies crowd dy­nam­ics and protests.

“March­ing in the street is sym­bolic,” Madensen said. “Smart po­lice have learned that the best to po­lice a pub­lic protest is to fa­cil­i­tate it. In do­ing so, the fo­cus should al­ways be on pro­tect­ing con­sti­tu­tional rights and pub­lic safety and not just en­forc­ing laws for the sake of en­forc­ing laws.”

Laws tar­get­ing pro­test­ers “need to be crafted in a man­ner that al­lows po­lice to ad­dress the very few who wreak havoc, but the laws should also be there for peo­ple who want to spread their le­git­i­mate mes­sage and ex­er­cise their con­sti­tu­tional rights,” she said.

Some feel the pro­test­ers fre­quently go too far.

“In Min­nesota,” said state Rep. Nick Zer­was, “block­ing free­ways and clos­ing down the air­port have be­come the go-to move for the pro­tester class.” His bill would make some­one who is con­victed of par­tic­i­pat­ing or be­ing present at an un­law­ful as­sem­bly “civilly li­able for pub­lic safety re­sponse costs.”

Zer­was pointed to the re­cent Women’s March, which drew 100,000 peo­ple to Min­neapo­lis, as an ex­am­ple of non-in­tru­sive protests with­out any ar­rests or clo­sures.

“My point is,” Zer­was said, “you don’t have free speech rights for the mid­dle of the free­way. If you block the free­way, go to jail. And when you get out of jail, you should get a bill for riot.”

The wave of new protest-re­lated bills “is a sign, not of any co­or­di­na­tion” be­tween law­mak­way ers in var­i­ous states, Zer­was said. “I think that’s the elec­torate talk­ing to their elected rep­re­sen­ta­tives say­ing they’re sick and tired of that non­sense,” he said.

The stand­ing protest of the Dakota Ac­cess Pipe­line in North Dakota be­gan last April and has an­noyed many res­i­dents be­cause it in­volves peo­ple in­ter­fer­ing with traf­fic on a nearby high­way, Rep. Keith Kem­penich said. He said the protest was lo­cated 40 miles from any pop­u­la­tion cen­ter, so demon­stra­tors were not go­ing to get any at­ten­tion un­less they took dra­matic ac­tion. In one episode, traf­fic on the 65 mph road was slowed to a crawl, en­snar­ing some of Kem­penich’s fam­ily mem­bers. “At that point, I thought, ‘this isn’t right,’ ” he said.

He in­tro­duced a bill, which states that any driver “who un­in­ten­tion­ally causes in­jury or death to an in­di­vid­ual ob­struct­ing ve­hic­u­lar traf­fic on a pub­lic road . . . is not guilty of an of­fense.” Kem­penich said, “The First Amend­ment works both ways. You’ve got the right to as­sem­ble peace­fully and legally. The other side of it is other peo­ple who don’t want to par­tic­i­pate . . . . I just in­tended it to keep peo­ple that didn’t want to be in­volved in this from be­ing drawn into it.”

Sim­i­lar sen­ti­ments about keep­ing the roads clear, par­tic­u­larly for pub­lic safety and emer­gency ve­hi­cles, were voiced by of­fi­cials in Iowa, Min­nesota and In­di­ana. “The ob­ject of this mea­sure is very sim­ple,” said state Sen. Jim Tomes of In­di­ana in a state­ment about his bill di­rect­ing law en­force­ment to use “any means nec­es­sary” to clear roads. “An am­bu­lance needs to be able to get to an in­di­vid­ual who is hav­ing a heart at­tack, and law en­force­ment needs to be able to re­spond to a call to at­tend to some­one who needs help.”

Tomes de­clined to be in­ter­viewed about the law’s lan­guage echo­ing the phrase made fa­mous by Mal­colm X.

In Wash­ing­ton state and Colorado, law­mak­ers filed bills af­ter ac­tivists tar­geted oil re­finer­ies to protest the con­tin­ued use of fos­sil fu­els. Colorado’s bill would make the crime of tam­per­ing with oil or gas gath­er­ing equip­ment a felony in­stead of a mis­de­meanor. Wash­ing­ton state Sen. Doug Erick­sen in­tro­duced a bill that would al­low a judge to in­crease jail time by six months for a gross mis­de­meanor and 12 months for a felony for those in­volved in “eco­nomic dis­rup­tion,” and would al­low those con­victed of or­ga­niz­ing or fund­ing such protests to be charged three times the ac­tual dam­age caused.

“That’s the most im­por­tant part of the bill,” said Erick­sen, who was deputy di­rec­tor of the Trump cam­paign in Wash­ing­ton. “If you’re or­ga­niz­ing a protest that’s done law­fully, there’s no prob­lem.”

In Mis­souri, leg­is­la­tors are con­sid­er­ing a bill that would make it il­le­gal to con­ceal one’s iden­tity “by the means of a robe, mask or other dis­guise” while com­mit­ting the crime of un­law­ful as­sem­bly. And in North Carolina, an in­ci­dent which oc­curred in Wash­ing­ton shortly af­ter the in­au­gu­ra­tion caused a legislator to say he would in­tro­duce a bill mak­ing it a crime to “threaten, in­tim­i­date or re­tal­i­ate against a present or for­mer North Carolina of­fi­cial in the course of, or on ac­count of, the per­for­mance of his or her du­ties.”

Sen. Dan Bishop, who also au­thored the con­tro­ver­sial “bath­room bill,” was out­raged by a video of pro­test­ers who cor­nered for­mer gov­er­nor Pat McCrory and shouted “Shame on you!” for three min­utes. “This is dan­ger­ous,” Bishop said on his web­site. He said for­mer North Carolina gover­nors “never faced ri­otous mobs in their post-ser­vice, pri­vate lives, with­out per­sonal se­cu­rity.” His bill has not yet been in­tro­duced.

Ac­tivist DeRay Mckesson, a mem­ber of the Black Lives Mat­ter move­ment, said the pro­pos­als were all aimed at muz­zling op­po­si­tion. “Peo­ple in power ben­e­fit from si­lenc­ing dis­sent, and these laws func­tion to si­lence those will­ing to chal­lenge those in power,” he said. “If passed, these laws would pe­nal­ize cit­i­zens who are will­ing to speak out against in­jus­tice . . . . Protest is a core Amer­i­can right.”


Demon­stra­tors block In­ter­state 94 dur­ing a protest for slain black mo­torist Phi­lando Castile in Fal­con Heights, Minn., in July.

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