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Issues resulting from the #BlackLivesMatter protest at MOA are not complex

MOA and the Bloomington police’s hypervigilant response was not a matter of “overpreparing for potential problems” as Busse asserts, but was grounded in racialized fear and stereotyping.

Admittedly, after reading the recent article by Tim Busse entitled Media coverage of Black Lives Matter arrests at MOA hasn’t reflected complexity of the issues,” I had to take a moment to breathe. The article came across to me — one of the people being unjustly prosecuted by the city of Bloomington — as a parent scolding children who had been disobedient. Words like “belligerent,” “offensive” and “defiant” were used to describe those who participated in the Dec. 20, 2014, Black Lives Matter demonstration at the Mall of America (MOA). The condescending tone of Busse’s article and the attempts to minimize the heavy-handed conduct of MOA, City Attorney Sandra Johnson, and the Bloomington police symbolize everything that is wrong with the way in which the actors in question responded to the peaceful demonstration as well as their subsequent actions.

Nekima Levy-Pounds

First, Busse’s use of the term belligerent is much more fitting to describe the actions of the Bloomington Police Department than those of protesters who have spoken to the media. According to, the definition of belligerent is: 1) waging war; specifically : belonging to or recognized as a state at war and protected by and subject to the laws of war; 2) : inclined to or exhibiting assertiveness, hostility, or combativeness. Many of the 3,000 or so peaceful demonstrators at MOA can attest to the fact that we were met by dozens of officers in riot gear, who had the appearance of a militarized police force. The presence of those officers was intimidating and scary, but — most important — unnecessary. Stories have surfaced in the aftermath of the demonstration involving the use of aggressive tactics by officers in arresting peaceful protesters; trapping people in portions of the mall; and pushing children and families outside without their coats.

Police knew it would be peaceful

Second, one must ask the question: Why would MOA see the need to employ dozens of officers and extra security forces for a demonstration that it knew in advance would be peaceful? Evidence has shown that police informants infiltrated a training session prior to the demonstration and even the FBI was involved in this clandestine operation. Given the heightened level of surveillance that was conducted, as well as the communications between Black Lives Matter police liaisons and the Bloomington Police Department, they knew full well that the event would be peaceful. MOA and the Bloomington police’s hypervigilant response was not a matter of “overpreparing for potential problems” as Busse asserts, but was grounded in racialized fear and stereotyping.

Sadly, this is not the first time that MOA and Bloomington police have engaged in racial profiling of people of color. National Public Radio and Minnesota Public Radio have documented MOA’s extensive history of targeting and profiling people of color; including individuals who appear to be foreign-born.

Busse makes the point that this is not about making prosecutor Sandra Johnson the villain. I agree. Unfortunately, though, Johnson has placed herself in the unenviable position of pursuing an agenda of politically prosecuting 11 alleged organizers, and over 20 people who were arrested at the demonstration, in order to protect the interests of MOA, as secret emails have shown. In spite of making claims that her hands are tied, the reality is that Johnson is the one individual within the system who has a source of power called prosecutorial discretion. Prosecutorial discretion gives prosecutors wide latitude in making decisions about which cases they will prosecute or decline, in light of such factors as what is in the interests of justice, and the amount of time and resources that will be expended. Although pursuit of these cases amounts to a misuse of prosecutorial discretion and a waste of judicial resources and taxpayer dollars, Johnson has made statements in the media about wanting to “make an example” out of the organizers. Part of making an example of alleged organizers includes the unprecedented move of seeking upwards of $40,000 in restitution for the costs of officers and security guards. This is unconscionable and unwarranted. Prosecutors should be guided by a sense of justice and not retaliation.

Peaceful assembly should be permitted

Given MOA’s reputation for welcoming certain types of visitors and responding harshly to others, it is important that a process be established going forward that allows for groups to apply for permits to be able to peaceably assemble in the rotunda. The fact that MOA has received more than $400 million in tax subsidies means that in fairness, there should be some responsibility placed on the mall to engage in equitable practices and to be viewed more as a public square than a private entity. If MOA wants to continue to claim it is private, then our state coffers should be off limits to the corporate giant.

In spite of the punitive response to our peaceful demonstration at MOA, we remain steadfast and vigilant in declaring that Black Lives Matter. We want to see an end to abusive police practices. We want to see an end to racial profiling on our streets and at MOA. And we want to see the racial disparities in Minnesota addressed with a greater sense of urgency. #BlackLivesMatter

Nekima Levy-Pounds is a professor of law at the University of St. Thomas and the founder and director of the Community Justice Project, an award-winning civil rights legal clinic. 


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Comments (52)

  1. Submitted by Hiram Foster on 03/19/2015 - 08:53 am.


    Well, the issues are complicated or at least can be viewed in ways that introduce complicated. Ms. Levy-Pounds is a lawyer. She is certainly as familiar with the legal issues as I am. However she might disagree with them she understands the legal position that the Mall of America is private property, and demonstrators have about the same right to peacefully demonstrate there as they do in your living room. Surely she must have advised the demonstrators before hand of the legal jeopardy they were placing themselves in. While the Bloomington prosecutor doesn’t have to bring charges, there is certainly nothing surprising about the fact that she did. All in all, Ms. Levy-Pounds has in this piece which talks about a lot, has made the choice not to talk about the central legal issues involved in which she has expertise.

    • Submitted by Daniel Olson on 03/19/2015 - 10:04 am.

      Private Property

      Can we please stop making direct comparisons between our living rooms as private space and the MOA as private space?

      The MOA is open to the public every day and receives millions of visitors annually. Your living room is a useless comparison.

      Also, the MOA recieving hundreds of millions of dollars of public subsidy specifically created for them is hardly the same as you being subsidized by the mortgage interest tax deduction for your home.

      One of those subsidies was designed to create an amenity for the public (even if privately owned) and the other is a deduction available to mortgage payers nationwide.

      The MN SC got the issue wrong and the pursuit of justice must continue regardless. Bringing this message to the cozy confines of a sanatized suburban mall sends an important message that comfortable folks can’t continue to ignore systematic oppression.

      What visible & high profile locations exist in the suburbs for dissenters to exercise their first amendment rights? Should dissent be allowed in the suburbs? Do we need to update our ideas of pubic space for the sake of our democracy?

      • Submitted by Richard O'Neil on 03/19/2015 - 02:23 pm.

        Private property

        You beg the question. Private property IS private property subject to the owner’s control. That definition obviously does not square with your preference.

  2. Submitted by Dennis Tester on 03/19/2015 - 08:53 am.

    As the alleged law professor should know

    there’s no connection between whether a property is considered private and any government money that may have been spent supporting that property. Does the government own my motorcycle because I ride on its roads?

  3. Submitted by Pavel Yankovic on 03/19/2015 - 08:57 am.

    So how does…

    someone appear to be foreign born? Isn’t that assumption profiling, too?

    • Submitted by Bill Schletzer on 03/19/2015 - 10:19 am.


      Women wearing Hijabs or other distinctive Muslim dress. I think if I gave you a picture test with Somali or Asian people and white people, dressed the white people like they grew up in Edina and put some subtle clothing touches on the brown people and you’d have no trouble acing the test. Assumption profiling?

  4. Submitted by Dan Hintz on 03/19/2015 - 09:13 am.


    I am finding it quite painful to read the legal analysis by the obvious non-lawyers commenting here. The piece yesterday was pure nonsense. Ms. Levy-Pounds has it right. If you want to criticize her for not anticipating an incompetent prosecutor wasting money on a frivolous prosecution, I guess there’s that.

  5. Submitted by Rachel Kahler on 03/19/2015 - 09:46 am.

    Let’s not play dumb

    If you intend to protest on private property, you should expect to get arrested and charged with trespassing. Just because it wasn’t violent doesn’t mean that you won’t get charged. I agree with the use of the MOA for the protest, but only with the understanding that it was at a legal risk for participants. If you’re going to claim that there should have been no risk, you’re playing dumb.

    As for the descriptions of those protesting being overly negative, are you surprised? Even if they’re not appropriate descriptions, the media has long ago dropped its standards in order to get into the entertainment industry. You certainly can’t expect impartiality from the media, let alone an opinion piece published on a media site.

    Don’t let your perspective get in the way of a realistic view of the situation. I have to admit that, while I support Black Lives Matter protests, I find it incredibly foolish to deny your responsibility for the legal risk involved. Was the prosecutor heavy handed? Yeah. Was it unjust? Maybe. But if those protesting didn’t want to be arrested, they shouldn’t have protested in a private space.

    OWN IT.

    Instead of claiming victimhood, point out that you faced arrest and prosecution in order to highlight the fact that there are lots of people getting arrested for minor crimes or being harassed by police at a much higher rate than the general population, sometimes leading to death. The numbers more than suggest that the reason is related to racism. And, even if racism as a cause was ignored, the problem still remains that law enforcement officers are sometimes permitted to commit murder without any justification and often without legal justice being served after the fact.

  6. Submitted by Bill Schletzer on 03/19/2015 - 10:24 am.

    a nice, well-written article

    Unfortunately it makes us white people uncomfortable to acknowledge some things that are true. Better to obfuscate, divert, reword and ignore that which we don’t want to hear.

  7. Submitted by Paul Udstrand on 03/19/2015 - 10:27 am.

    Well, there ya go

    Someone asked a while back who was complaining about being arrested.

    Frankly I’m surprised to see such legally incoherent arguments from a law professor.

    First of all, surveillance of a group that has broken laws and declared it’s intent to do so again, is not racial profiling. This group previously shut down a freeway, blocked traffic, and had announced it’s intent to trespass on MOA property with an unauthorized political demonstration. THAT’S why they were surveilled, and arrestred. The outcome would have been no different if they had been white college anti-war demonstrators.

    No one was arrested for being peaceful, the peaceful nature of the demonstration is simply irrelevant. These demonstrators did not have permission from the property owners to organize this event on MOA property, THAT’S why there arrested.

    The mall is private property despite it’s public subsidy. This is settled law. Any Lawyer should know what that means.

    As for the idea that everyone knew this was going to be peaceful, again, the legal naivete here is breathtaking. The fact is Ms. Levy-Pounds nor anyone else can GUARANTEE in any legally coherent way that a demonstration involving thousands of people will remain peaceful. Ms. Levy-Pounds and other organizers and participants have absolutely no control over who shows up, or what they do under the guise of any given demonstration. Is or did Ms. Levy-Pounds offer to take any kind of legally enforceable liability for any damage that demonstrators might do, or violence that might break out? Obviously not. Did Ms. Levy-Pounds and the other organizers take out some kind of demonstrator insurance policy?

    The fact is that allowing a political demonstrations in the mall would be putting the property at risk because no one can guarantee the outcome. History is chock full of peaceful demonstrations that turned violent unpredictably. Ms. Levy-Pound may not consider that risk to be very great, but since she’s not legally responsible for the safety and security of the mall her estimation isn’t legally relevant. And you cannot force or expect that property owners will risk the safety of their property based on your assurance that nothing will go wrong. Ms. Levy-Pounds has no contract with the mall or the merchants, no legal obligation to provide security, no insurance policy, and no legal right to organize an event on mall property without permission of the owners.

    And as long as we have an actual defendant, here: What did you think was going to happen and why? What do think is gong to happen now? Do you really think someone’s going to crack open settled law and decide that the mall is public property? Even if that happened, you’re still going to get arrested, but it would be for failing to follow a lawful order to disperse from police. Don’t you know that dozens of people have been arrested on the public streets of St. Paul and MPLS during countless demonstrations? Where are you going with this and more importantly, what does it have to with convincing people that black lives matter?

  8. Submitted by Michael Hess on 03/19/2015 - 10:39 am.

    Title correct, the rest not

    The title of this article is correct. After that it goes off the rails. Without getting into the specifics as so many others have, the great irony here is that this group through their action have diverted public attention from a real problem – so now public financing support of MOA is as big a topic of discussion as the plight of youth of color.

  9. Submitted by beryl john-knudson on 03/19/2015 - 10:43 am.

    seeds of racism growing?

    And racism appears to be reviving too often lately…however,

    please note an article out of “Air Force Times” ( put Minot in the search mat the top of the page) telling of “Racial Thursday” honored by 2nd Platoon, C Company, 3rd Battalion, 21st Infantry regiment at the Minot Air Force base recent history documents where racial slurs can be used for a day; a military base where one could say also N missiles have been so carelessly ‘protected’ too often ‘lately’ that 2 or is it 3 change of commands have been necessary so far?

    But back to racism day; a bullying practice, to say it in softer terms, happens in one platoon…how many more, and yes in a climate of yes sir-no sir mentality, possibly happens more than recorded?

  10. Submitted by T J Simplot on 03/19/2015 - 11:02 am.

    Still no acknowledgement that the MN Supreme Court has already ruled that the MOA is private property.

    I honestly couldn’t care less what the protest was about. Plain and simple, they were warned ahead of time, were given another option for location, yet still went ahead with their protest. What is the city attorney supposed to do?

    • Submitted by Raj Maddali on 03/19/2015 - 02:20 pm.

      Is the Supreme Court ruling still valid ?

      The MOA, since the ruling, has provided openly public facilities. Its called a train station. A train station is a state action under Brennan ?

      Why can’t that the MOA is not a public place be challenged. Is not a train station a public place. And if that train station is inside the MOA does not make the MOA a public place, unless it clearly demarcates access and egress from such area, which it hasn’t.

      • Submitted by Paul Udstrand on 03/19/2015 - 11:17 pm.

        Yes, the ruling is still valid

        Rag, high court rulings stand until they are overturned or rendered irrelevant by legislation of some kind. Rulings that were issued over a hundred years ago are still being used as precedent.

        Private property is not converted into public property by a public transportation connection. In fact a few years ago Bloomington police actually stopped a group of Wobbly labor union activists at the LR station and wouldn’t even let them even get off the train let alone enter the Mall. They were on their way to a demonstration against Jimmy Johns.

        The other thing to keep in mind about high court rulings and settled law is that you can’t just claim you don’t like a ruling and ask for a do-over, you have to some cause or legal basis. Typically new evidence or some something the court didn’t consider is a basis for appeal. The court considered the public subsidy arguments when it made it’s ruling so you’re going to have to come up with something else. People just don’t seem to get this, this is settled, these arguments have been heard.

        • Submitted by Raj Maddali on 03/20/2015 - 05:16 am.

          The New Legal Basis For a Challenge

          Is the train station at the mall. The MOA in its defense at the time claimed it had no public services. It now has. The MOA now has a public service (Brennan).

          For example, a private university with no public funding can discriminate. However once they take public funding the university is not grandfathered.

          The ruling by the State may is still valid. However its applicability to the MOA is valid ? I don’t think so.

          Ask yourself. A private country club can have men’s only rules. Now a private country club with a public train station can allow only men to access that train station. I don’t think so.

          • Submitted by Wayne Coppock on 03/20/2015 - 07:38 am.

            There’s also the fact that Bloomington just dropped a million bucks on a skyway across Killebrew to the south and closed crosswalks, forcing people to use it to cross the street. The only way to reach the skyway from the train station is to pass through mall property. If that doesn’t justify a challenge to the ruling then we need to stop spending public money on private infrastructure. I had to use this route for a year to reach my place of work and I wasn’t alone in that. If a bunch of people are required to pass through mall property to reach their jobs it’s a bit ridiculous to say there’s no public easement there.

          • Submitted by Paul Udstrand on 03/20/2015 - 08:15 am.

            Sorry guys….

            The fact that a privately owned building has an “entrance” for the public doesn’t convert all private property into a public forum for unpermitted demonstrations. The mall has always been served by bus stops, and it’s always had doors providing public access. The LR station doesn’t change anything, it’s simply an additional avenue of public access. Functionally it’s no different than the bus stops. By your reasoning every store, restaurant, residential building, and office building on the Nicollet Mall would be “public” property. Do you think it makes that demonstrator should actually have a constitutional right to march into Brit’s Pub and shut it down?

            • Submitted by Wayne Coppock on 03/20/2015 - 03:24 pm.

              No, the station is a public resource and in order to utilize it you are required to pass through mall property. People use the station to go places in Bloomington other than the mall and if they were, say, banned from mall property it makes them unable to utilize that public resource. This is not a matter of semantics, it’s a matter of access to public infrastructure and rights of way.

            • Submitted by Wayne Coppock on 03/20/2015 - 03:26 pm.

              Also, to your example: if the only way to access that bus stop was to go through Brits pub then it is a very different matter. That is a much more apt analogy to the situation with the light rail and pedestrian overpass.

          • Submitted by Paul Udstrand on 03/20/2015 - 08:19 am.


            Raj, the court decision had nothing to with public services, it was all about private property, the LR station doesn’t change that.

            As for your country club, you can let women use the train station without granting them membership or equal access to the men’s only country club. Again, this demonstration didn’t take place in the LR station, it took place in the mall.

            • Submitted by Raj Maddali on 03/20/2015 - 09:37 am.

              Let me try again

              The public facilities are not inside any establishment in Nicollet Mall. The train stations is INSIDE the mall.

              Your statement “you can let women use the train station” is my point. The Mall has not clearly demarcated which part of the MOA is public access. So the demonstrators, in my opinion, can claim they were going to the train station. A right they have , as you’ve noted.

              • Submitted by Richard O'Neil on 03/24/2015 - 05:52 pm.

                Train station

                But, the “demonstrators” weren’t there to use the train station. They were there to “demonstrate” on private property.

  11. Submitted by Thomas Swift on 03/19/2015 - 11:59 am.

    Before the ’08 RNC convention, self-proclaimed anarchists were promising to bring disruption. The FBI, local police and others infiltrated them, copied their online communications and surveilled them.

    Need I mention they were overwhelmingly, if not solely, Caucasian?

    Intelligence is one of the most basic tools LE has in their bag of tricks. Not to see it coming is the mark of naivete.

    The Bloomington PD and the city met with Levy-Pounds to come to an acceptable arrangement; LP & Co. refused to compromise. They were warned that they would be arrested if they trespassed; they ignored the warning.

    The city went through much effort to accommodate them, is it any surprise they would prosecute with vigor?

    I was fully on-board with the protesters in Ferguson, until self-serving race baiters and assorted lefty groups got involved and twisted the mission to suit themselves. I will not associate myself with such persons or groups. Ms. Levy-Pounds is turning more away with her baseless accusations.

  12. Submitted by Hiram Foster on 03/19/2015 - 01:38 pm.

    “If you want to criticize her for not anticipating an incompetent prosecutor wasting money on a frivolous prosecution, I guess there’s that.”

    Does Ms. Levy-Pounds ever say that she didn’t anticipate the prosecution? I don’t actually want to pre judge anything here, but it is my recollection that demonstrators were warned that legal avenues would be pursued. Certainly as a lawyer, Ms. Levy-Pounds was aware that there was a potential for prosecution. It may be possible that she underestimated the willingness of the prosecutor to prosecute, but hey, in this life, like victims you take prosecutors as you find them.

    Ms. Levy-Pounds suggests the prosecution is politically motivated. This is disingenuous and reflects a miscalculation on her part. She may have hoped and assumed that the prosecutor would react politically, and search for some compromise solution, but in fact, the prosecutor is not, choosing to instead enforce the letter of the law. I wouldn’t in fact rule out the possibility of such a compromise at this point, but if that is what any demonstrators are looking for, the chances of that happening aren’t really enhanced by publicly attacking the proscutor.

    • Submitted by Paul Udstrand on 03/20/2015 - 09:48 am.

      I wonder…

      I wonder if the lack of arrests in the previous demonstrations led to an overestimation of public support or political wariness to confront these demonstrators? I think for instance MPLS leaders may have been more criticized for allowing an illegal demonstration, I don’t think that ended up being a very popular decision.

      It’s not uncommon for members of a “movement” to end up in a bubble sorts. Once in that bubble it can be hard to see how the community at large is really responding. Perspectives can become quite narrow.

      Not that I WANT people to be arrested but there’s a certain give and take involved in all political and social movements.

  13. Submitted by Bill Schletzer on 03/19/2015 - 02:02 pm.


    Don’t get between a white person and his Macy’s!

  14. Submitted by Anthony Walsh on 03/19/2015 - 02:23 pm.

    Well, then there’s this:

    “As reported by the Star Tribune, emails released earlier this week reveal apparent coordination between Sandra Johnson, the Bloomington city attorney, and Kathleen Allen, the Mall of America’s corporate counsel. “It’s the prosecution’s job to be the enforcer and MOA needs to continue to put on a positive, safe face,” Johnson wrote to Allen two days after the protest, encouraging the mall company to wait for a criminal charge from the city before pursuing its own lawsuit. “Agree — we would defer any civil action depending on how the criminal charges play out,” Allen wrote back.”

  15. Submitted by Connie Sullivan on 03/19/2015 - 02:33 pm.

    The people arrested or charged for their participation in the illegal protest at the Mall of America will not serve jail time, and whatever punishment they receive will probably not be onerous. They were warned, authorities tried to get them to demonstrate on nearby public property, and when they insisted on gathering inside the Mall, police were prepared for that large bunch of people.

    Being prepared for what might be not peaceful (you can predict the peacefulness of a mass protest less accurately than today we can predict the weather) is simply rational behavior on the part of Bloomington police. They chose to arrest or charge the leaders of the protest, again a rational decision, not the masses of folks who may not have known how cooperative Bloomington police had been BEFORE the protest.

    Being prepared to handle a potentially violent mass protest is not racist. Watch out for the highly-emotional rhetoric this law professor wields: she’s using heightened, biased lingo one can use in summation, but certainly not in the presentation of evidence.

  16. Submitted by Michael Hess on 03/19/2015 - 04:02 pm.

    Re Read the first article

    After reading this commentary I felt I must have mis remembered the first article by Bloomington City Councilman so I re-read it. Nope. I remembered it correctly, this article takes quite a few liberties in its characterization.

    First of all Ms Levy-Pounds reports that the article states “Words like “belligerent,” “offensive” and “defiant” were used to describe those who participated in the Dec. 20, 2014, Black Lives Matter demonstration”. In fact the article in question uses belligerent and offensive in reference to people who are casting the Bloomington City prosecutor as the villian, not those who participated in the demonstration. The exact quote: “While it’s convenient for Black Lives Matter to put a face on a villain, to compare Sandra to Bull Connor, as some have done, is belligerent and offensive”. Bull Connor’s Wikipedia entry refers to him as a symbol of racism. While there may be some overlap between the protestors and the people he refers to above there are also a lot of people who weren’t part of the protest who would be in that same. So for clarification, belligerent and offensive wasn’t referencing protestors, it was referencing the people attacking the prosecutor.

    Tthe article does say “Black Lives Matters protesters broke the law in a very public, defiant way. They should be held accountable”. So I would agree that the councilman used the term defiant in reference to the protestors themselves. However having been told multiple times to not protest, and persisting with the plan, defiant sounds like a darn good adjective. Since Ms. Levy Pounds referenced the dictionary for belligerent, it may help to reference it again for defiant. To quote Merriam Webster: “refusing to obey something or someone”. I’d say that one fits the demonstrators to a T.

    The notion that Bloomington police should have known a protest involving thousands of people would remain peaceful is naive at best. They fact they came appropriately prepared for worse is what the citizens would expect. I don’t remember hearing about any injury to protestors despite this preparation which suggests they used the appropriate level of authority for the situation.

    Again the great puzzle here is why the Black Lives Matter group allowed themselves to hijack the message to one of property rights. Whatever momentum the group may have had in kickstarting local dialog or action has been derailed by this MOA trespassing sideshow they brought on themselves.

  17. Submitted by beryl john-knudson on 03/19/2015 - 04:53 pm.

    is there a legal librarian in the house?

    Chapter and verse:

    If federal or state moneys are involved in the construction or ongoing development of this ‘Grand mall seizure’ called a marketplace – never been there; never hope to go there – can all or portions legitimately be called ‘public space’ as space developed by public funds directly or there a legal point of reference that can be given to support, chapter and verse this time…or such a legal definition, should be created when large spaces used by the general public; public marketplace used to demonstrate ( where else then?), let them officially be so designated if not…where?

    I gotta say the Bloomington city attorney and the Mall legal council were not playing a particularly respectable bit of ‘foreplay’ which could be viewed as racism or at least denying the freedom of speech and right to assemble in a ‘public place”.

    This situation of which I am not qualified to speak…but there a general bad smell, a form of racism as some media reports suggest; a form of ‘racism’ ethnic or otherwise that does seem to be growing in momentum…almost like the ugliness in the remembered 50’s, 60’s…No, doesn’t go away and that’s not good to say it politely

  18. Submitted by Ilya Gutman on 03/19/2015 - 09:18 pm.

    Let’s establish the facts first: the Mall is a private property by all legal definition and that some people disagree with that is irrelevant (some people may want to see all Bill gates property called public). I do not think there is a single project the size of MOA that never got public money in one way or the other but that is also irrelevant. Second, being on private property after having been asked to leave is called trespassing and is against the law. Therefore, calling a prosecutor “incompetent” as Mr. Hintz did is odd to say the least. And finally, I would like to know if people who think that prosecutor should dismiss all the charges would argue the same way if there was damage done to the Mall because their logic would still hold: this is an important enough goal to break the law and therefore they should not be punished. So what laws may be broken? Oh, I would also want to see the proof that police in Minnesota/Minneapolis/St.Paul are racist…

    • Submitted by Bill Schletzer on 03/20/2015 - 06:55 am.


      People in Minnesota are racist, many people. Some of them work as police. Why would you need proof of something so obvious. Ask any black person that has been treated more roughly of different than a white person would be treated in the same situation. Racism exists. I’ve read recently of a study that found that a black man with no record is more likely to not get a job than a comparable white man with a prison record. There is all sorts of statistical proof that racism exists. There are also many anecdotes from black people describing the treatment they receive in stores, at malls including MOA, by police and teachers and judges.

      If you are saying the proof isn’t there then please show me the proof of any white protester ever anywhere in the state of Minnesota who was sued or fined for the cost of event policing. Or show me any example where with the prosecutor’s assistance a mall was able to sue a group of protesters for some theoretical loss because they decided to close their stores during a protest. All of that is special treatment because these people were mostly black.

      I cannot believe the mean-spiritedness and the blindness shown by so many posters here. I don’t think any white person in America can claim that the inherent racism of our system hasn’t benefitted them somehow sometime. No matter how bad your situation may be, it would always be worse if you were black too. This web site usually has a lot of very liberal posters but when the topic becomes something related to racism I see a lot of denial and anger and a lot of demanding “law and order”. Sad.

      • Submitted by Ilya Gutman on 03/20/2015 - 07:23 pm.

        Minnesota is nice, not racist

        Mr. Schletzer, you start with absolutely unsubstantiated claim that people in Minnesota are racist. I have lived here for over twenty years and can attest that they are not (en masse that is; there are individual racists everywhere). On the other hand, Minnesota is one of the most liberal states in America; it is irrelevant in my eyes but must be of significance for you. Scientifically, there is no such thing as “statistical proof.” Statistically way more men than women are in prison – is it anti-sexism? Statistics shall always be supported by proof of causation because correlation isn’t causation. And how can any black person (or any person) say how another person WOULD be treated in the particular situation. There is absolutely no proof that people in MOA were treated this way just because they were black even though they may believe it and want us to believe it.

        Yes, I do claim that inherent racism did not benefit me in any way. In fact, in theory affirmative action may have been applied against me so no, the same situation is not always worse for blacks as you claim. McCain and Romney vs. Obama: Who did it end up being worse for?

  19. Submitted by Paul Udstrand on 03/20/2015 - 08:24 am.

    Maybe this will help…

    Here’s a link to the actual supreme court decision, I strongly recommend that those still thinking they can argue that MOA is some kind of public space read it:

    The case is: State v.Wicklund

    • Submitted by Raj Maddali on 03/20/2015 - 09:53 am.

      That was then

      When there was no public transit facility inside the MOA. Since then the MOA has a public train facility. It is not an incidental stop etc. That constitutes state action as defined by the Supreme Court.

      The Supreme Court has held the following:

      1. Merely opening up a business to the public is not state action, but the performance of a “public function” (a function that has been traditionally and exclusively performed by the state) is state action (Marsh v. Alabama, 326 U.S. 501 (1946));

      If a train station is not a “public function”, then what is. Which means the MOA is now performing a “public function”.

      • Submitted by Paul Udstrand on 03/20/2015 - 11:50 am.

        Let ME try again

        Even if you classify the train station as public property, (and you have to remember, it’s entirely possible that Mall still owns that space and rents it out Co. for the train station. For instance the land that the LR station in front of the new Vikings stadium sits on is privately owned) that doesn’t convert the entire mall into public property. The demonstration did not take place on a train or in he train station. It’s not uncommon for malls to have police substations in them for instance, there’s one at Texa Tonka Mall, and I think there was or is one in Knollwood Mall here in St. Louis Park. I know they had one at Ridgedale years ago. THAT doesn’t convert the entire mall into a public space. Just because somethings changed or is “new” doesn’t mean you get crack open settled law. The train station doesn’t fundamentally change the nature of the mall, it just changes the way some people get to the mall.

        And anyways your parsing the quote incorrectly:

        “1. Merely opening up a business to the public is not state action, but the performance of a “public function” (a function that has been traditionally and exclusively performed by the state) is state action (Marsh v. Alabama, 326 U.S. 501 (1946));”

        This passage isnt’ about determining whether or not a space is public, it’s about defining “state” action vs. not state action. The finding here was that law might prevent the “state” from limiting speech inside a shopping mall, but the mall owners, or other private owners and institutions are NOT bound by the Constitution in the same way. All they’re saying is that when the “State” does something, it’s “State” action and when the someone else does something it’s not “State” action. i.e. when the mall prevents a demonstration THAT’S not State action. The fact that some public function might occur on private property doesn’t modify the nature of private property. For instance many Church’s function as polling places during elections, clearly THAT’S a public function. That doesn’t make the church public property.

        • Submitted by Raj Maddali on 03/20/2015 - 11:43 am.

          Lets try again

          Settled law doesn’t grandfather any entity into judicial permanence. Especially when the “state action” component of that has changed

          Once you build a public entity anywhere then access and egress to that entity is a right. And by that a portion of the MOA becomes a public access entity, which they have conveniently not demarcated. That in my opinion leaves them open to a legal challenge of their entirely private nature. Simple question. Can they ban an outsider from using the train station. NO.

          And prior to that public facility they could ban. That’s the difference.

          A “state action” leads to free speech obligations. And “state action” is when a state collaborates with a private entity to provide a public function. In this case a train station which requires a public access.

          When a church becomes a public facility, then on that day they cannot ban anyone wearing any objectionable t-shirts, which they can on any other day. Do you wish to challenge that ?

          • Submitted by Paul Udstrand on 03/20/2015 - 12:14 pm.

            You’re not really trying….

            Yes, you can appeal high court decisions, but I’ve already explained you have a basis for doing so, and the LR isn’t a basis.

            “Once you build a public entity anywhere then access and egress to that entity is a right. And by that a portion of the MOA becomes a public access entity,”

            Yes Raj, you have a right to go the train station. That doesn’t give you a right to demonstrate inside the Mall. You’re not going to crack open settled law with this argument.

            • Submitted by Raj Maddali on 03/20/2015 - 01:32 pm.

              Let see

              And i state that the LR is a basis.

              Now you agree that the MOA cannot bar me from going to a train station. Which makes it a public accommodation with the state involved. And you have to agree the MOA has not demarcated the public access and exit from the train station.

              I’m not reopening settled law. I’m saying the MOA is not covered under that law. At lest until it makes clear what part of the MOA is public to access the train station.

              That’s the distinction i’m trying to divine.

  20. Submitted by Paul Udstrand on 03/20/2015 - 09:23 am.


    You and some other folks keep banging away on this business of trying to collect enforcement costs or “damages” as if it’s unprecedented, the fact is it isn’t.

    Even in public places like city parks and streets event planners have to apply for permits, pay a fees, and agree to a variety of stipulations. For instance if you want to have something like a 5k race in MPLS you have to pay $100, collect .50 from every runner, hire someone to put up and take down barricades, place “no parking” signs at your own expense, etc. If you want to use one of those nifty park shelters for instance you have to schedule your event and rent them out, you can’t just walk in there and “occupy” it. All of this is in honest to god flat out public space. Why would you expect it to be different in a privately owned mall?

    As for the mall; sure people have events there, but they have to apply for permits, and agree to certain rules, and they may even have to pay a fee of some kind. These “other” events people keep talking about at the mall aren’t just a bunch of people showing and having a book signing or a walk for the cure.

    As for government expenses related to law enforcement I wouldn’t at all be surprised to find that such threats have been issued before. When you engage in civil disobedience the whole point is to raise the cost of law enforcement. In recent years with tight budgets and deficits we’ve had cities and counties send out bills for rescue services, where’s the compassion in that?

    At any rate, a city CAN make a case that someone is liable for additional costs beyond that of normal law enforcement enforcement or operations. I’ve seen peace marches with ten thousand people facilitated by 4 cops. You do something that requires additional personnel from outside agencies, or overtime, or whatever, someone gets billed for that. A reasonable tax payer may well say: “OK, I’ll pay for the this but I want those lawbreakers charged for their trouble.” or: “Why do I have to pay for that?” You may or may not like it or agree but it’s a legitimate question for the community, especially when the laws being broken deliberately in order to get arrested in the first place.

    The sad fact is no one’s entitled to unconditional compassion. I think that’s actually part of problem here. Some people seem to think that can disrupt the community, and other peoples lives, then demand compassion. That just doesn’t fly. You’re not going to get compassion by demanding it OR merely expecting it. Some people will sympathize with you and some people won’t. You go out and deliberately disrupt people lives and inconvenience them, and then EXPECT those same people will sympathize with you? There’s a fundamental disconnect with that reasoning. You don’t to say you don’t care what kind of inconvenience you inflict on other people and then demand or expect their compassion, they will care no more about you than they think you care about them as general rule.

    I’m not saying no one should ever be disruptive but it seems a lot of people are making quite a few un-examined assumptions around here.

    By definition political demonstrations are controversial. The more extreme the demonstration is, the controversial and even adversarial or combative. If EVERYONE agreed with or sympathized with these demonstrators, or any other demonstrators, they wouldn’t need to demonstrate would they?

  21. Submitted by Brian Scholin on 03/20/2015 - 09:36 am.

    Is this Even the Right Question?

    This series of events certainly lends itself to a debate about legalities involved. But is that the debate that we, as responsible adults in this community, should be most concerned about?

    I believe most successful leaders of a society understand that legal constraints on their conduct are often the least important constraints. Surely they need to be recognized and given due respect. But they must never be thought of as the only restraint on one’s actions. I believe that is the problem here.

    The first question that awareness of the upcoming demonstration should have raised for those in positions of responsibility was not “What does the law allow us to do to get what we want?”, but “What is the most effective course of action for us, to satisfy our needs while accommodating those of others, and while remaining within the law?”. The answers to these two questions are strikingly different.

    The Black Lives Matter protests across the country showed that some of those in authority understood that difference, and some did not. Where the authorities asked the first question, as I believe was – and still is – the case at MOA, tempers flair, violence is “enhanced”, and conflict continues. Little gets settled, other than through the courts and not advancing society’s cause at all. Where authorities asked the second question, everyone was able to get what they really needed. The protesters got to air their legitimate grievances, nearby property owners were inconvenienced but not really harmed, law enforcement got to protect and serve, the courts got to do little or nothing, and hopefully everyone learned something.

    This situation has already gone too far in the direction of punishing to the extent of the law, and lost focus on societal goals. It’s time for everyone involved to think about what they SHOULD do, instead of what they CAN do.

    • Submitted by Paul Udstrand on 03/20/2015 - 11:43 am.

      Wrong question entirely

      “This series of events certainly lends itself to a debate about legalities involved. But is that the debate that we, as responsible adults in this community, should be most concerned about?”

      It’s really frustrating to see one of the movement’s local organizers lead people down this rabbit hole. This is sooooo far off message it’s not even funny. The first question people ask is: “What was the mall doing to black people?” And there simply is no viable answer to that question. Unless Ms.Levy-Pounds is telling us that the big injustice black people face in America today is being prohibited from demonstrating in shopping malls there’s just no “there” there.

      Even IF the city of Bloomington and the MOA dropped all charges and gave all of the defendant’s $20 and an apology, that would do absolutely NOTHING to convince people that we have an out of control racially biased police regime. Was that the point of this demonstration? To crack open and overturn a twenty year old ruling on trespassing at the MOA? Is that “justice” for people of color in America?

      We need to locate the right questions and get back to them. It’s really disappointing to see some people who would pretend to lead this discussion promote such a ridiculous diversion. You almost have to wonder if this is actually intentional? Not to promote conspiracy theories or anything but this exactly the kind of thing that agent provocateur’s would do to derail a movement. I’m not making any accusations but this has been so far off message for so long at some point you have think about wondering.

  22. Submitted by Brian Hanson on 03/20/2015 - 04:16 pm.

    Private Property

    If you want to be able to protest at publically subsidized facilities open to the public, then that should have been negotiated as part of the subsidy. Otherwise, it’s ridiculous to tell MOA after the fact that they signed up for being the protest location of choice.

  23. Submitted by John Appelen on 03/20/2015 - 11:16 pm.

    Humorous or Sad

    Whenever I read Nekina’s posts, it does make me happy and sad. At first I think there she goes again and get the smile, then I remember that she truly sees these villains all around her. Be it in the St Paul schools, the police department and now at the MOA. That would have to get depressing after awhile.

    Below she states that the police knew it would be “non-violent”. Though I am not sure why they would trust a group that ignored their explicit warning to stay out of the mall. Then their is her obligatory racist accusations. Like the Police wouldn’t have broken up any other unlawful demonstration.

    Could you really see them letting a bunch of white supremacists wander the halls? I wonder if she would be complaining if it was the WS folks being prosecuted?

    “Given the heightened level of surveillance that was conducted, as well as the communications between Black Lives Matter police liaisons and the Bloomington Police Department, they knew full well that the event would be peaceful. MOA and the Bloomington police’s hypervigilant response was not a matter of “overpreparing for potential problems” as Busse asserts, but was grounded in racialized fear and stereotyping.”

  24. Submitted by Paul Udstrand on 03/21/2015 - 09:33 am.

    Wayne and Raj

    You guys are too funny.

    High Court rulings remain law until they are overturned either by another High Court ruling or legislation. State v. Wicklund is the law, period. Bridges and trains stations don’t change that.

    As for public access and train stations and bridges and what-not if there IS an issue there, we have a standard legal mechanism that deals with that, it’s called an “easement”. Private property owners can negotiate easement rights, kind of like the skyway system that runs through all those retail stores downtown. An easement grants passage without transferring or changing ownership. I suspect the MOA has a few decent lawyers on hand and I’m sure that long before anyone decided to build bridges or trains stations, any question regarding public access through mall property was addressed with some kind of easement agreement. You don’t must build a train station or a bridge and then say: “Oh by the way, now the mall is public property… ha ha!”

    • Submitted by Raj Maddali on 03/25/2015 - 01:18 pm.


      You are hysterical.

      A high court ruling may stand. But an entity’s standing under that ruling is not guaranteed.

      Claiming that Bridges and trains don’t change that is YOUR INTERPRETATION OF THE LAW. NO MINNESOTA COURT HAS EVER RULED ON THAT.

  25. Submitted by Paul Udstrand on 03/21/2015 - 09:48 am.

    Little info from the Mall

    I actually called MOA management and talked to one of the event coordinators. As I suspected anyone who has an event at the mall, such as promotional event like a book signing, or a fund raiser like a walk for the cure or some such thing has to apply for a permit. The Mall reserves the right to deny any application but those who are granted permits must sign an agreement that stipulates certain requirements.

    Obviously you have to agree to a variety of basic conduct requirements and what not, but you also have to pay a fee, AND buy liability insurance. You can’t just assure the merchants and the mall that everything will be peaceful peachy, you gotta prove you have insurance.

    Basically this means that there is absolutely no comparison between any of these other events, and an unauthorized demonstration. Sure you see groups doing stuff in the mall but they paid to be there, and they have liability insurance. BLM did not. Not only did BLM not have permission, or insurance, but according to the MOA, not surprisingly, they didn’t even apply prior to entering the mall. You can’t grant yourself permission to do something on someone else’s property.

    Like it or not the Mall has reasonable concerns and inescapable liability issues. That’s not discrimination or racism, it just is what it is. You can’t just say: “Everyone knew this was going to be peaceful.” You have to have a contract. Does a law professor really NOT understand this?

  26. Submitted by Carrie Anderson on 03/21/2015 - 08:13 pm.

    Thank you,

    Beryl and Bill, for your honest comments. Beryl, your questions are thoughtful and I believe your observations about racism today are sadly true. Bill, things said by the commenters over at the Strib regarding this subject are pretty horrible, which made seeing the lack of empathy from many of the commenters here very disappointing.

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