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Why I want to increase penalties for protesters who block traffic

REUTERS/Adam Bettcher
Police are seen as people gather on I-94 on July 9, 2016, to protest the fatal shooting of Philando Castile.

Our country relies on the American people to be able to create and have constructive dialogue. Citizens can get involved in their community through communicating with their elected officials, running for elected office, serving on local governing boards, and protesting the status quo. Minnesotans, like all Americans, have the right to express their opinions freely, with emotion. Recently, however, demonstrations and protests have been moving onto freeways and obstructing other public spaces. This all-too-frequent tactic is designed to attract attention to an increasing number of issues, in part because current penalties don’t seem to be a sufficient deterrent.

Rep. Nick Zerwas

I introduced legislation that would alter the criminal penalty for blocking public right-of-ways. The bill would not change what actions are already legal under Minnesota law, but it would increase the criminal penalty from a misdemeanor to a gross misdemeanor for those who intentionally obstruct traffic access to a highway, airport, or transit system. If passed, the legislation would dictate that a person who is convicted of illegally blocking a public right-of-way could face not more than one year in jail and/or a fine of not more than $3,000.

Increasing fines or penalties is an instrument commonly used by lawmakers and advocates to discourage certain activity, such as speeding in a construction zone or parking in a handicap space; a similar philosophy seems appropriate in this case. There have been multiple instances in which public right-of-ways have been blocked off illegally in the last two years, such as when protesters took over a section of I-35W near the University of Minnesota for 90 minutes during morning rush hour in July 2016 (Star Tribune, July 13, 2016), or when, last November, an illegal protest that blocked traffic for an hour on both sides of I-94 was incited because some folks were disappointed with the results of the 2016 election (WCCO-TV, November 10, 2016). Disabling a highway, a public transit system, or an airport and endangering those around you is not protected expression under the First Amendment of the U.S. Constitution or current Minnesota Statutes.

Critics, including the ACLU, have asserted that my proposal is somehow unconstitutional, but they haven’t been specific about how or why. Since the ratification of the Bill of Rights, the interpretation of the First Amendment has been challenged in the U.S. Supreme Court numerous times. As a result of rulings in a number of landmark cases regarding what expression is protected and what expression is not, the amendment has become more narrowly defined; the court has decided on multiple occasions that the right to free speech does not cover actions that put others’ safety and rights at risk. For example: in Brandenburg v. Ohio (1969), the sitting justices concluded that speech can be limited if it’s “directed at inciting or producing imminent lawless action . . . likely to incite or produce such action.” I want to clarify that I am not a legal or a constitutional expert. The precedent set by the ruling of this case, however, would no doubt be cited if the constitutionality of existing laws were challenged. What’s more, my bill only creates stiffer criminal penalties for acts already deemed illegal in Minnesota. No form of protest that is currently allowed under existing law would be made illegal by its passage.

Disruptive protests create unnecessary chaos, which can very easily and rapidly devolve into riots that threaten the safety of not only the general public and law enforcement, but the protesters as well. In July 2016, a protest that shut down I-94 from late on a Saturday night until 4:30 a.m. the following day was marked by smoke bombs, fireworks, jagged rocks, and broken bottles. Twenty-one police officers were injured in the melee, including a University of Minnesota police officer who suffered a spinal-compression injury after a chunk of concrete was dropped on his head (Pioneer Press, July 12, 2016). Breaking the law and resorting to this sort of violence is not an effective way to petition your government, and inflicting harm on law enforcement is not an effective way to persuade the public to sympathize with your cause.

My experience as an elected representative is that these illegal, disruptive protests create resentment as well as build an even greater divide among people on all sides of an issue. By constantly working to “shut it down” (with the “it” ranging from malls on busy shopping days to press conferences by the DFL mayor of Minneapolis), the protest groups have become an opposition party. However, the “opposition” seems to be to everything and has alienated large swaths of Minnesotans. Tactically, this approach is counterproductive and causes the average Minnesotan to view protesters’ behavior as arrogant, reckless, and at times dangerous.

Many of those who are not in favor of my legislation argue that, if enacted, it would “chill” free speech. I vehemently disagree. Increased criminal penalties for blocking a freeway, closing an airport, or blocking transit should have no impact on legal protests. I have no issue with people protesting and petitioning their government. There have been multiple protests outside of the state capitol that have been legal displays of petition and are protected under the First Amendment. During the Women’s March over 100,000 people gathered in St. Paul to protest, and nobody broke the law. This was the largest protest in recent history and nobody was arrested; the people were respectful, their voices were heard, and their causes were given significant media coverage the following days.

I was prompted to draft my legislation after numerous constituents reached out to me expressing their frustrations with disruptive protest. One constituent told me how she had waited for six weeks to have a doctor’s appointment with a specialist at the Mayo Clinic, only to miss that appointment when protesters blocked the freeway for several hours. It took another six weeks to reschedule. Another constituent missed an irreplaceable event. In the midst of an airport shutdown, she was unable to get on a flight to say goodbye to her mother. In a time when she was trying to focus on her family, she was confronted with protesters with mixed messages preventing her from getting to her ailing parent. Even after rescheduling her flight, she did not make it in time to say her final goodbye.

I agree with the Constitution that Americans have the right to assemble and speak freely against their government, and I agree with the courts setting limits on the time, place, and manner of expression of those rights. In all facets of our lives, our freedoms are limited. There are speed limits, liquor laws, tobacco laws, gun laws, age restrictions, and so on. Americans are a free people and we have free will, but every action has a consequence. In order to keep civility in our society, limits must exist. The legislation I propose is not meant to impede protesters’ constitutional rights; it is meant to preserve the public’s right to safety and reliable transportation.

Nick Zerwas is a state representative from Elk River. He serves on the Public Safety and Security Policy and Finance Committee, the Health and Human Services Finance Committee, and the Higher Education and Career Readiness Policy and Finance Committee.

This commentary was originally published in the Citizens League Voice, a new quarterly magazine designed to encourage quality conversation and healthy debate among Minnesotans. To read other views on this subject, go to “A Good Debate: Whose Streets?”  The Citizens League is a nonpartisan, nonprofit organization that works to ensure Minnesotans of all backgrounds and ideologies have the opportunity to be engaged, inspired and empowered to take an active role in public policymaking.

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Comments (16)

  1. Submitted by chuck holtman on 05/18/2018 - 06:56 pm.

    “Unlawful assembly”

    Is to assemble with at least two other people “with intent to carry out any purpose in such a manner as will disturb the public peace” or “without unlawful purpose, but the participants so conduct themselves in a disorderly manner as to disturb the public peace.” Minn. Stat. 609.705.

    “Presence at unlawful assembly” is to be at a place of unlawful assembly and refuse to leave when so directed by a law enforcement officer. Minn. Stat. 609.715.

    In their breadth, vagueness and reliance on subjective evidence, these are extraordinary tools for those in power to use against those who protest. At least they are only misdemeanors.

    This session, Rep. Zerwas sponsored House File 322. It would allow any state agency or political subdivision to sue any person convicted of unlawful assembly, or of presence at unlawful assembly, for all costs incurred “for the purpose of responding to the unlawful assembly.” The testimony as to these costs would be entirely within the control of the governmental plaintiff, they would be easily multiplied and quickly ruinous. Under the bill, they could be sought from any person present at a protest, on the testimony of a police officer that at least three protestors behaved in a “disorderly manner” and that the defendant was told to move and did not.
    I would be interested in Rep. Zerwas’s thoughts as to the purpose and proportionality of this bill, and its chilling effect on protected political speech.

    • Submitted by Paul Brandon on 05/19/2018 - 11:25 am.

      First Amendment

      Has the U.S. Supreme Court ever ruled on whether this sort of state legislation is consistent with the First Amendment to the U.S. Constitution?
      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
      or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
      ….
      If people assemble and petition in a way that disturbs other people who disagree with them, is this necessarily ‘disturbing the peace’ in Constitutional terms? If so, we have opened the door for majority suppression of minority opinions.

  2. Submitted by George Kimball on 05/19/2018 - 09:19 am.

    logic vs passion

    Rep. Zerwas makes some logical points to defend his bill. The problem is that, like so many lawmakers who cannot relate to what drives protest in those he seeks to discourage, is that you can try to apply logic to issues driven by passion fueled often by historical and/or cultural bias. When this passion results in determination to make a, yes, loud and clear statement, those making the statement do not pause to analyze or research the merits of potentially be charged with a misdemeanor vs a gross misdemeanor. It seems that effort might be better spent addressing the inequities (real or perceived) that lead to the protests.

  3. Submitted by Alan Straka on 05/19/2018 - 12:58 pm.

    Enforcement needed.

    Now if only the police would actually arrest people for blocking traffic and if the judges will actually impose those sentences. It doesn’t matter what the possible sentences are, people will ignore the law when they know they won’t be held to account.

    • Submitted by Frank Phelan on 05/20/2018 - 07:49 pm.

      I Feel The Same Way

      About the Wall Street crooks and the banksters. No one went to jail after the 2008 fiasco, and Wells Fargo just keeps stealing from people.

  4. Submitted by James Hamilton on 05/19/2018 - 03:52 pm.

    I hope you will apply the same approach

    to reasonable gun laws, including universal background checks, Rep. Zerwas.

    “In all facets of our lives, our freedoms are limited. There are speed limits, liquor laws, tobacco laws, gun laws, age restrictions, and so on. Americans are a free people and we have free will, but every action has a consequence. In order to keep civility in our society, limits must exist. The legislation I propose is not meant to impede protesters’ constitutional rights; it is meant to preserve the public’s right to safety and reliable transportation.”

  5. Submitted by Paul Nelson on 05/19/2018 - 04:45 pm.

    Is it the nature of the protest or the subject

    This all arose from the Philando Castile killing: black people and progressives (yes, and some loony lefties) causing trouble.

    Do we imagine that this bill would have been introduced by Republicans if the identical protest had been carried out by armed, patriotic Second Amendment zealots?

    I doubt it.

  6. Submitted by Karen Sandness on 05/20/2018 - 12:14 pm.

    I wish some people were as concerned about police killings of non-violent suspects as they are about blocked roads.

    The two cases that Rep. Zerwas cites could just as easily have been due to roads blocked by traffic jams, accidents, natural disasters, or a bridge collapse as by protesters.

    His “logic” reminds me of an acquaintance who said that he was against illegal immigration because he knew someone who had been killed in a car crash in which an illegal immigrant ran a stop sign.

    Illegal immigration and negligent driving are two different issues.

    Blocked freeways and the right of peaceful assembly are two different issues.

  7. Submitted by Frank Phelan on 05/20/2018 - 07:51 pm.

    I Know

    A wedge issue when I see it. Too bad not everyone does.

  8. Submitted by Ray Schoch on 05/21/2018 - 11:46 am.

    Protest & inconvenience

    Mr. Zerwas may be correct, but not for the reason he stated: “… This all-too-frequent tactic is designed to attract attention to an increasing number of issues, in part because current penalties don’t seem to be a sufficient deterrent.”

    The existing penalties don’t seem to be a sufficient deterrent to those whose actions **brought about** the protests in the first place, which is why the protests are usually taking place. That drivers (perhaps including me) might be inconvenienced because yet another unarmed black man has been shot to death by a policemen who won’t be punished, or in some cases, even officially reprimanded, for taking a life without justification, strikes me as trivial in the extreme. The exercise of constitutional rights, especially free expression and speech, are **intended** to draw attention to a perceived injustice. If the usual rhetoric about patriotism and the Constitution is not to be dismissed immediately as empty propaganda, citizens ought not to be punished for exercising those constitutional rights, even if it inconveniences commuters, party-goers, theater and restaurant patrons, etc.

    Mr. Holtman and Mr. Phelan are right on the mark.

  9. Submitted by Adam Miller on 05/21/2018 - 11:49 am.

    Well, Nick

    You’re literally trying to up the penalties in response to a sit-in.

  10. Submitted by Paul Yochim on 05/21/2018 - 03:31 pm.

    Just a distraction.

    I’m sure there laws on the books that are not being enforced that would take care of this.
    Why do we need more?

  11. Submitted by Joe Musich on 05/21/2018 - 08:16 pm.

    So Rep. Nick Zerwas…

    As you are arguing for stiffer penalties for freeway blockage In 2014 you were clocked at 80 mph in a 60 zone with a blood alcohol content of .13.
    Here is the story …http://www.startribune.com/state-representative-from-elk-river-pleaded-guilty-to-dwi-in-august/280989642/
    As a driver on the public highways this kind of driving frightens much more then someone attempting to improve equity for all by blocking a freeway enter an email or exit. Considering the number of alcohol related deaths compared to deaths caused by public demonstrations on our highways and byways you might consider writing more applicable legislation. Yes we can all improve.

  12. Submitted by Jim Young on 05/22/2018 - 10:42 am.

    Not exactly a new phenominon

    Nearly 50 years ago, during the Vietnam war, protestors blocked I-94 near the U of Minnesota, traffic was stopped, people were inconvenienced etc. Somehow the republic survived and life went on. Those protests so long ago did have an effect eventually though and we got our troops out of Vietnam.

    Hopefully, someday, the same may happen here – the protests might put enough pressure on our elected officials to actually work together to solve the hard issues that underlying problems behind the protests. Rep. Zerwas, rather than trying to ignore the problems and “criminalize” the protesters, I challenge you to do just that – work together with other elected officials, police and citizens of Minnesota to create a more fair and just society rather than creating more “criminals.”

  13. Submitted by Mark Gruben on 05/23/2018 - 10:42 am.

    Let’s enforce existing laws

    The notion of increased penalties suggests that penalties already exist, which, in turn, suggests that it’s already against the law. How about we use and enforce EXISTING laws, instead of insisting on increased penalties? This proposal smacks of political opportunism.

  14. Submitted by David Moseman on 05/23/2018 - 10:57 am.

    Protests are about expression not consequences

    When one chooses to speak out or protest we don’t’ think of the consequences. We will find ourselves shouting and then realize how worked up we are. This happens to all of us. Several Legislators shouted their views during this session. Do you think they planned that?

    I doubt the consequences of their action beyond expression of their rage entered into the decisions to block highways. In my youth they would have burned down the town. The purpose of any Protest is to get other’s attention. The highway blocking seems to be a very good nonviolent option.

    Go ahead and make blocking highways a Capital Crime and see it deterrents work?

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