Law enforcement officers have dual and sometimes conflicting responsibilities. They must safeguard First Amendment rights while also making sure protesters do not violate the rights of others or cause violence. Policing protests requires careful planning and consideration of participants’ First Amendment rights.
It is important to prepare a detailed operations plan to guide all officers involved in an event. Many Minnesota cities have also banned targeted residential protests in response to several neighborhood demonstrations. In Frisby v. Schultz, the 1988 U.S. Supreme Court held that a categorical ban on residential protesting was facially constitutional under the First Amendment and that these ordinances are subject to the “time, place, and manner test.” The Minnesota Court of Appeals also upheld a residential picketing ordinance in the Town of White Bear in the 1990 case of State v. Castellano.
The League Has Resources to Help
It is important to learn the legal concepts related to First Amendment free speech rights in the U.S. and State of Minnesota Constitutions and how cities balance them with public safety concerns. The League has published an information memo, “First Amendment Concepts for Protests in Cities,” where you can read about speech that is not protected, ways to deal with unpopular ideas, and how to regulate protests, marches, and demonstrations in city parks or streets and in residential areas by city ordinance.
The League also has a Guide for Communicating During a City Crisis, including protests and demonstrations, that describes tools cities can use when communicating with the media, residents, and others.
In addition, the League has a residential picketing and protests preparation checklist that can be used to regulate and prepare for a neighborhood protest or demonstration in your city and take enforcement action for the few statutes in the criminal code that are particularly relevant to policing protests.
The proper preparation is best achieved through policy, training, good communication and crowd management, while also protecting the First and Fourth Amendment rights of all involved. The residential protest guide, links to sample city ordinances, and a PATROL memorandum of law on policing protests are available by sending an email to me at tstille@lmc.org.
PATROL Offers New Training Course on Policing Protests
Model Policies Available on POST Board Website
As of May 30, the Minnesota POST Board requires all law enforcement agencies adopt, implement, and enforce policies based on its model policies per MN Rule 6700.1615, including a “Public Assembly/First Amendment Activity” policy, which can be accessed on the POST Board website.
The required policies must be posted on your agency’s website (or in a public area of the physical premises for agencies without a website) and a copy of the current version of each required policy must be provided on request by an individual or organization. By MN Rule 6700.1615, Subp. 1 and 2, your newly required department policy must include the “identical or substantially similar” provisions of the POST Board’s model policy, although it may incorporate additional agency-specific requirements or more stringent requirements to ensure it is respectful of First Amendment rights, focuses on the safety of all involved, and appropriately identifies and describes any ministerial and discretionary duties and acts within the policy.
Due to conflicting rules and legal liabilities of policing protests and demonstrations, it is recommended that a law enforcement agency consult with their legal advisor or city attorney before implementing any regulations of speech through a city ordinance or adopting any new policies, including the newly required “Public Assembly/First Amendment Activity” policy, to ensure it is “substantially similar” to the board’s model policy.
If you have any specific comments or questions or would like to obtain the League resources mentioned above, you may contact me at tstille@lmc.org or (651) 215-4051.
In the meantime, stay safe!
Tracy
