Minneapolis Proposed Ordanance wants groups to apply for protest permits

Below is a letter sent today to the Minneapolis authorities considering a new ordinance to require permits for all demonstrations. Please feel free to contact your elected City representatives and express your opinion on this matter.

De León & Nestor
Attorneys at Law

Bruce D. Nestor* Susana De León *Licensed in Minnesota and Iowa 3547 Cedar Ave South Minneapolis, MN 55407 (612) 659-9019 Facsimile (612) 436-3664 nestor (at) denestlaw.com
August 6, 2007

Phil Schliesman, License Inspector
City of Minneapolis Business Licensing
350 South 5th Street
Minneapolis, MN 55415

Re: Proposed Public Rally Ordinance

Dear Mr. Schliesman:

Thank you for forwarding me a copy of the proposed Minneapolis City Ordinance with respect to Public Rallies. I have reviewed this ordinance with other members of the National Lawyers Guild and with leaders of local political groups. I am writing to provide comments on behalf of the National Lawyers Guild. These comments also generally reflect the views of many persons and organizations who would be affected by this proposed Ordinance.

Our initial position is to oppose any new ordinance requiring a permit scheme for public rallies. We are not aware of any past problems which would create a need for an ordinance. In general, any permitting scheme will become a legal, financial, and bureaucratic obstacle to the exercise of free speech in Minneapolis. Given that ordinances already exist for marches and parades on public streets, and flawed regulations exist for public parks, there simply is no need for this proposed ordinance.

The ordinance itself is directed only to constrain assemblies that are public rallies: gatherings for the purpose of expressing views or opinions. In our view, it is unconstitutional to have the ordinance only apply to expressive activity and not to other activity involving similar numbers of people and a similar burden on public resources. If there are 20 people gathered in a park or sidewalk on any given day associating with each other without needing a permit, why should they need a permit only because they want to have or express political opinions? For example, in our view, this ordinance would have to be applied so that in September of 2008, any state delegation attending the Republican National Convention would have to obtain a permit before using the public sidewalks to go outside in a group of twenty or more people for drinks and dinner. I doubt this is the type of welcome that the City of Minneapolis wishes to extend to the RNC.

The time standards for approval are also problematic. Any organization that is planning for a major event so far in advance that it is submitting a permit a year in advance, such as the anticipated RNC protests, needs to know if the permit has been approved more than 60 days in advance. It would be much better to simply have a requirement that a grant or denial be issued in a matter of days after an application is submitted. So long as there are strict criteria guiding the hand of decision makers, combined with a first come first served rule, a much faster decision timetable for approving or denying a permit should be possible.

Any ordinance must also include provisions recognizing spontaneous demonstrations based on recent events. This includes provisions for permitting demonstrations and rallies with less than 24 hour notice.

We would also strongly oppose any criminal penalties being imposed for permit violations, which the draft ordinance does by making such violations a misdemeanor. In particular, §462.80 would allow police officers to determine that any or all persons at a rally were violating the permit conditions, revoke a permit, and thus make all participants subject to arrest for a misdemeanor, regardless of whether any unlawful activity was independently occurring.

The stated grounds for denial of a permit are also vague and grant too much discretion to unaccountable decision makers who make decisions without sufficient oversight or public knowledge of the decision making process. For example, §462.60(b) lacks any standards to determine how a space is appropriate for the anticipated size of an event. Further, even if a space is small, people have the right to assemble near particular targets of their speech and not merely in a space that a bureaucrat determines is appropriate. §462.60(d) also leaves tremendous discretion unguided by any specific standards to evaluate the appropriateness of a denial. People are entitled to go through neighborhoods and communicate with people as opposed to being in a sterile business district. §462.60(e) allows denial of a permit based on speculation that physical injury "may" happen. The government can't bar an assembly based on a claim that an act "may" take place that has not actually taken place.

§462.60(h) and (k) need to have more specificity in order to evaluate the constitutionality of any bond or financial requirements. It would also have to be equally applicable to all assemblies, whether protest oriented or not. For example, the afore mentioned RNC delegations going out for a drink could well be required to have a permit as drinking in groups "may" cause physical injury to others. I would note that Washington DC does not have any bond or insurance requirements and of course is a frequent site of rallies and protests. Given that Washington DC is able to safely host numerous demonstrations without a mandatory permitting requirement, and without bond and insurance requirements, the NLG believes that Minneapolis should be capable of the same.

I do not understand what §462.60(i) refers to.

Under §462.60(j), a denial should at least require that a permit misrepresentation be intentional and material. Otherwise, minor misstatements and errors could be a basis for a permit denial.

§462.60(l) and (m) are simply too vague and give unbounded discretion to the person determining whether to grant the permit or not.

We also strongly object to the proposed appeal process. Any appeal process should be open to the public, to the press, and to any person whose permit was denied. The evidentiary standards are too weak to support what may be a significant deprivation of constitutional rights. Hearsay means that a police officer can come in and say he saw something posted on an open posting website that looked violent, so now the protest is barred because it "may" result in violence.

The above represents our preliminary comments. We are continuing to review this matter with other members of the National Lawyers Guild, including attorneys who have been involved in litigation with respect to other permit processes around the country. In the event that this ordinance continues to advance in its current form, we intend to provide more detailed comments and legal analysis.

Sincerely,

Bruce D. Nestor, Secretary
Minnesota Chapter of the National Lawyers Guild