Legalectric

In Massachusetts, a case has come down supporting a person’s right to be rude in seeking redress from government:

Keep in mind this is Massachusetts, but we had something similar in Minnesota, after Robin Hensel was hauled out of a Little Falls City Council meeting, and she took it up to the Minnesota Supreme Court:

This Minnesota opinion so concerned Red Wing’s former police chief Pohlman that he initiated Ordinance 115, designed to give police additional power to remove people from City Council meetings, even after consulting with the County Attorney (hmmmm, why?) who said it was not necessary, not needed. What was Pohlman trying to do? Why? What was he afraid of?

Red Wing’s Ordinance #115 – Why?

Here’s the letter I’d written then:

Ordinance #115 – disruptions at Council meetings?

Monday night, the Council took up Ordinance #115, triggered by the recent Minnesota Supreme Court’s Hensel decision. That decision held that the law defining conduct that “disturbs an assembly or meeting, not unlawful in its character” as disorderly conduct was unconstitutional, “a serious overbreadth problem.” Here, the City has decided to consider an ordinance of its own with language that puts the City on the wrong side of the law. Why would the City want to do this?

The discussion was good – I’m grateful members raised Constitutional issues, the 1^st Amendment, and its broad definitions. One said “We’d instructed staff after we got information,” the City Attorney had been instructed to draft the ordinance. “We were asked to address this.” By whom? It’s not gone through committee process. The packet’s item 9B was a memo from Roger Pohlman, Chief of Police, requesting a Motion to introduce the Ordinance.  Councilor Hove noted that there haven’t been disruptions for years, since back when the Council met upstairs! Others, including the City Attorney, noted that in addition to city policy, there is applicable law. Only part of the disorderly conduct statute (Minn. Stat. 609.72) was held unconstitutional, and parts remain, including “engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.”

Why use Council time on this non-issue, particularly where the City has policies in place regarding disruption? What was most concerning were Chief Pohlman’s reasons for requesting this ordinance.  First, he noted that police use of force practices limit what level of force may be used, and “if individual becomes passive, resistant” this ordinance was back up to use force to remove someone. He raised this issue of level of force twice. The other claimed justification was liability issues if someone claims injury when removed, that it’s “difficult to use policy to support our case.” This is an issue?

As Alan Muller was quoted in your article, “people disrupt meetings — people behave aggressively — when they feel that behaving politely and with restraint isn’t working.” Council President Biese cut off Muller’s statement just as he was finishing!  In my own experience, I’ve been shushed by Biese for objecting when my Ash Mining clients had no opportunity to speak before the Council approved that scheme. I’ve also been ordered removed from a St. Croix Falls/Taylors Falls joint Council meeting by then Mayor Lundgren for merely asking a question, raising a financial corruption issue, in a public comment period.  Lundgren was later charged and plead guilty to Theft and Misconduct in Office. Sometimes being heard requires standing up.

A primary outcome of the Red Wing Citizens Assembly was recognition that the City Council needs to be welcoming, transparent, that the Council must listen to citizens, and welcome public engagement. Ordinance #115 is a visible step in the opposite direction

Carol A. Overland

UPDATE: ORDINANCE #115 TAKEN OFF DECEMBER 11 COUNCIL MEETING. WON’T BE HEARD UNTIL AFTER JANUARY COUNCIL ANNUAL WORKSHOP… if ever…

At Monday’s City Council meeting, a strange item, 9b, was on the agenda:

09B – Int Ord 115 – Enforcement of Rules of Order for Govt Meetings – CC 11

Here is the link to the video, two options:

CLICK HERE and scroll down to 9b and click for video

MP4 Video

How did this get on the agenda?  It didn’t go through committee…

Look at this discussion of the matter in minutes from previous meeting, September 25, 2017:

First, “City Attorney Amy Mace referenced a recent Minnesota Supreme Court decision that struck down part of the disorderly conduct statute.”  That would be the Hensel decision:

Hensel-OPA150005-091317

So let’s look at this order of events.  The City’s Rules of Order address disruption of a city meeting, long standing rules.  The Hensel decision comes down September 13, 2017.  The meeting minutes above are September 25, 2017.

Listen to that part of the 9/25 meeting HERE – MP4 (begins at ~ 58:56, goes to ~1:03.00).  Note the City Attorney’s focus on “anger” — behavior that would cause anger, and statements that the public/private aspect of the statute was problematic. That was not part of the rational that Minn. Stat. 609.72, Subd. 2 that was deemed unconstitutional:

(2) disturbs an assembly or meeting, not unlawful in its character; or

Again, the decision:

Hensel-OPA150005-091317

So between the time the Hensel decision is published and the Council meeting of the 25th, 13 days, the Red Wing Chief of Police goes to the Goodhue County Attorney about it, and that “[t]he County Attorney feels that, as long as these rules are in place, there would be a basis for someone to be removed from a council meeting if they do not stop their disruptive behavior when given an order by the Council President to do so.”  That means that someone discussed this with the City Attorney prior to the 9/25 meeting.  This discussion is begun by “Council President Kim Biese, who asked whether additional discussion is needed with regard to managing a disturbance during a public meeting. So there was some discussion between some parties prior to the meeting.   The City Attorney goes on to say, “the City Attorney’s Office is considering whether language should be added to the City Code to make this type of behavior a misdemeanor offense.”  On whose authority, initiative, direction is this “considering” occurring?   Biese knew of this, City Attorney knew of this, and Chief Pohlman went to the County Attorney about it before the ink was dry on the Hensel decision — and he was told, “no problem.” So why is this happening and on whose direction?   “Discussion” and “consideration” is ongoing despite advice that there is no problem, the City’s rules are sufficient per the County Attorney.

What’s Biese and Chief Pohlman’s concern? Why is City Attorney working on this, and why are we paying for it?

Makes no sense… and this is contrary to the recommendations of the Red Wing Citizens Assembly:

Red Wing Citizens Assembly Event Report

From the report:

And “Better  Public Meetings” was a key component:

Looking forward:

Not only is Ordinance #115 action for a problem that doesn’t exist, it is a step in the wrong direction, away from “Better Public Meetings” and instead hanging a threat over the heads of lawfully participating citizens.

Ordinance #115?  NO!

It’s out.  Former U.S. Attorney Heaphy was commissioned to lead investigation and issue report on the Charlottesville mess.  Here it is, just released:

Heaphy-Independent Review of the 2017 Protest Events in Charlottesville, Virginia – Dec 1 2017

Read it!

Bottom line:

• Armed, Confederate flag-waving White Lives Matter protesters rally outside Houston NAACP

• White Lives Matter group protests outside NAACP in Houston’s Third Ward

• White Lives Matter protest staged outside Houston NAACP office

• Armed ‘White Lives Matter’ Group Protests Outside Houston NAACP

• ‘White Lives Matter’ Stages Armed Protest Outside NAACP

Can’t make this stuff up.  I wish they’d read their “pocket Constitution” and amendments.  How is NAACP related to their 2nd Amendment rights?  Let’s see a 1,000 word essay, due tomorrow!

Yesterday there are armed white folks in Houston, Texas, sporting guns and waving Confederate flags:

“Obviously we’re exercising our Second Amendment rights but that’s because we have to defend ourselves. Their organizations and their people are shooting people based on the color of their skin. We’re not. We definitely will defend ourselves, but we’re not out here to start any problems.”

Really… It’s a crucial distinction that they’re talking about “2nd Amendment rights” and not “1st Amendment rights” here, that their focus is on guns, and not speech.  At what point is inflammatory “speech” of flags and open carry in front of NAACP headquarters criminal incitement or terroristic threats?

Notice the “14 WORDS” sign.  Those “14 WORDS” are a fundamental slogan of white supremacists, originally from David Lane, The Order, The Silent Brotherhood, Bruders Schweigen: “We must secure the existence of our people and a future for White children.”  He also authored the “88 Precepts” while in jail serving his 190 year sentence.  Words like this should not be taken lightly.  The actions of Lane’s group included the machine-gun mowing down of Alan Berg, Jewish radio talk show host, armored car robberies and counterfeiting, racketeering, and conspiracy.  He died in jail.

Incitement is a difficult concept, much is allowed, and in reviewing Constitutional law on incitement, the key is to be vague, to use inference, to speak of possibilities, and that’s OK.  Urges to action NOW is another matter.  So thus far, these “protesters” (again, what exactly are they “protesting?”) seem to be within bounds, unlike Drumpf (one protester yesterday was wearing a Trump hat), who has gone over the edge with direct, targeted incitement:

Is Donald Trump inciting violence? He might be. – Slate