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Eighth Circuit Court of Appeals Approves Mass Arrests by Location in RNC 2008 Civil Suit
BACKGROUND: September 1st, 2008 -- It was the Anti-Capitalist Bloc that brought up the rear of the permitted anti-RNC march from the Capital Building and back to the Capital Building. After the march, the bloc headed towards the heavily fortified perimeter surrounding the Xcel Center, site of the 2008 Republican National Convention in St. Paul. The bloc moved on to cross a pedestrian bridge over I-35E and headed towards the Mississippi River on the other side of the Xcel center. Once on Shepard Road, the block moved northeast on sidewalks by the river. As the bloc approached Jackson Street, police, and what appeared to be Minnesota National Guard, began to attack the bloc with tear gas, bean bags, concussion grenades, and colored smoke bombs/clothes markers. Many people were injured as a result of the attack. As the bloc retreated southwest, back down Shepard, away from the advancing and attacking cops, another line of cops moved in slowly from the south to kettle the group and prevent any exit. From there, police slowly reinforced the ring around the bloc, taking over 100 people to the county jail. Attorney David L. Shulman filed a civil suit on behalf of those whose constitutional rights were violated when they were injured, detained, and/or arrested by police that day on Shepard Road, appealing the losing case, biased judge to biased judge, all of the way up to the Eighth Circuit Court of Appeals in November 2012.
AN UNFORTUNATE LEGACY OF THE 2008 RNC
The City of St. Paul hosted the Republican National Convention four years ago, and most Minnesotans are likely relieved that it is behind us. But there is a legacy from the RNC that most Minnesotans are not aware of. One month ago, the United States Supreme Court signed off on a decision from the Eighth Circuit Court of Appeals in a mass arrest case arising out of the RNC. That decision in Bernini v. St. Paul diminishes the Fourth Amendment rights of all citizens attending public events.
The Bernini case carved out an exception to the Fourth Amendment to allow officers during demonstrations to arrest every single person in an area for the purpose of identifying alleged lawbreakers. This exception undermines the bedrock principal enunciated by the Supreme Court over thirty years ago in Ybarra v. Illinois that probable cause for an arrest cannot be based merely on “where [a] person may happen to be.”
The facts of the late afternoon mass arrest on September 1, 2008 are as follows: the incident location was Shepard Road, the boulevard that borders the Mississippi next to downtown St. Paul. A group of 10 to 15 protesters attempted to cross Shepard toward Jackson St., an entry point into downtown. Stationed at the entry to Jackson was a law enforcement unit in riot garb.
What happened next was captured on video and has been posted publicly on the internet. The small group shuffled slowly behind two signs. When the small group reached the median of Shepard, the officers launched stinger blast balls at them, followed by smoke and gas. The officers claimed that the group had attacked them with a barrage of rocks, urine, and feces. The video showed no such attack.
Over one hundred officers massed on Shepard and pushed all civilians in the area west, away from downtown. Law enforcement commanders had set up a “blocking line” further to the west on Shepard to corral all civilians being pushed towards them. In carrying out this corral, officers swept up people who had nothing to do with the protesters and those who had been nowhere near Jackson.
Upon completing the corral next to the Mississippi, officers had surrounded approximately 400 confused, peaceful civilians. Officers then announced by loudspeaker, “Ladies and Gentlemen, you are now under arrest.” There was one, huge problem: officers only claimed to have probable cause to believe that a small percentage of the 400 arrested had committed a crime.
The Senior Commander that day was well aware of this probable cause shortcoming and so admitted when testifying in Bernini:
Q. [D]id you know that some of the people who were going to be arrested, you did not have probable cause on?
A. Yes, sir.
Q. [Y]ou knew that you had approximately 200 people in the area within the encirclement who you did not have probable cause on?
So how is it that the courts gave their imprimatur to the arrests of at least 200 innocent civilians? First, the District Court Judge took offense that throngs of people sought to disturb the RNC. He could not contain his displeasure and declared in open court, “the police force of the City of St. Paul should be commended and not sued... I'm distressed by, frankly, the existence of this case.” So much for the Fourth Amendment.
The Eighth Circuit Court of Appeals, the court that reviewed the District Court decision, assumed that everyone who was released after being put under arrest wasn’t really “arrested” and thus had no Fourth Amendment protection. The judges then engaged in the fuzziest of math, to arrive at the proposition that officers can use rough numbers when arresting civilians. Otherwise put, civilians in any given area are interchangeable widgets for arrest purposes. As long as officers arrive at a reasonable ballpark estimate for the number of people to arrest, their actions are constitutional.
Over forty years ago, the Supreme Court cautioned, “we cannot forgive the requirements of the Fourth Amendment in the name of law enforcement.” Bernini tells us the courts can – and have.
David L. Shulman
Law Office of David L. Shulman