Court Says '5 Second Rule' Used By Police In Ferguson To Arrest Protestors Is Unconstitutional

from the good-news dept

Tue, Oct 7th 2014 9:10am — Mike Masnick

A district court in Missouri has granted an injunction filed against the police in Ferguson for their ridiculous "5 second rule" that was used to arrest numerous protestors. The rule was that if you stood in place for more than 5 seconds, you could be arrested -- with the goal of (a) keeping protestors moving and (b) having an excuse to arrest a bunch of protestors. Mustafa Abdullah, with help from the ACLU, sued over this and the court has agreed that the rule is clearly unconstitutional, and thus a preliminary injunction has been granted. The court notes that standing in place for 5 seconds is not a legitimate standard to be used for Missouri's "failure to disperse law" (or any other law).

First, the court doesn't buy the police's claim that the 5 second rule matches up with the failure to disperse law:

This statute provides no defense to this suit for several reasons. First, people were not told to “disperse” – in other words, to leave the area. Instead they were told to keep moving. Second, the order was given even when there were fewer than six people gathered. The evidence included examples where the order was given to one person alone, to three people attempting to pray, to a reporter and one other person, as well as to larger groups. And the order was given to people who were doing nothing to indicate they intended to violate laws of any sort, much less to engage in violence. In fact, nearly all of plaintiff’s fact witnesses testified that despite gatherings that were peaceful and law-abiding at the time, officers told people they must keep moving or they would be arrested.

Then there's the question of due process. And, once again, the 5 second rule is problematic:

Plaintiff is likely to succeed on the merits of showing that the keep-moving policy violates due process in both ways. Of course, in this situation there is no statute or ordinance being challenged. Rather, it is an unwritten policy, given to officers at their roll calls, instructing them to order people to keep moving whenever the officers thought it was appropriate to do so. Some officers told everyone to keep moving, so if plaintiff was unlucky enough to be standing in the vicinity of those officers, he would be told to move. Some officers told people they would be arrested if they did not move, but at least one officer told people that they had to keep moving but probably would not be arrested if they failed to comply. Some officers interpreted the policy to mean that people had to walk at a certain speed, others told people that they could not walk back and forth in a certain-sized area. Some officers applied it to members of the press, while others did not. Plaintiff and his other witnesses testified that they could not tell what would or would not be allowed at any given moment.

The rule provided no notice to citizens of what conduct was unlawful, and its enforcement was entirely arbitrary and left to the unfettered discretion of the officers on the street. This policy “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.” See Kolender, 461 U.S. at 360 (brackets and quotation marks omitted). Like the gang loitering ordinance found unconstitutional in Chicago v. Morales, 527 U.S. 41 (1999), the keep-moving policy cannot meet constitutional standards for definiteness and clarity.

And then the good old First Amendment:

I conclude that it is likely plaintiff will prevail on the merits of his First Amendment claim, and given my conclusions about the Due Process claim, I need not at this time discuss the First Amendment issues in detail. The keep-moving policy – as it was applied to plaintiff and others – prohibited citizens from peacefully assembling on the public sidewalks. Although the state has a valid interest in maintaining order on its streets and sidewalks and in preventing violence by crowds, this interest is not sufficient to apply such a blanket rule to people assembling peacefully.... The evidence showed that the strategy burdened substantially more speech than was necessary to achieve its legitimate goals. In fact, one of the police witnesses testified that it only worked well during the daytime when there were no large crowds and no threats of violence – when the crowds grew unruly, telling them to keep moving was not an effective strategy. Thus, defendants’ own evidence shows that this strategy fails the requirement that “the means chosen are not substantially broader than necessary to achieve the government’s interest,”

Nice to see this ruling, though it would have been nicer to have this earlier -- but hopefully it will at least prevent future such actions.

5 Second Rule Injunction (PDF)5 Second Rule Injunction (Text)

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Filed Under: 5 second law, due process, failure to disperse, ferguson, first amendment, free speech, missouri, mustafa abdullah, right to assembly

45 Comments

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Ninja (profile), 7 Oct 2014 @ 7:29am

"failure to disperse law"

Is this law Constitutional at all?

As for the rest, well done. It's quite rare to see the police being properly punished. A pity that individuals that abused their positions won't be prosecuted at all.
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antidirt (profile), 7 Oct 2014 @ 7:54am

Re:
Is this law Constitutional at all?

I didn't read this opinion, but generally, I think the answer is yes. People have a right to congregate, but it's not an unlimited right. There's other countervailing issues, like the free flow of traffic on the streets or access for people entering buildings. The most common challenges to such ordinances are vagueness under the Due Process Clause (people have a right to know what conduct is prohibited ahead of time and officers don't have too much discretion in enforcing it) and overbreadth under the First Amendment (the ordinance is overbroad such that it covers not only unprotected activities but also activities that are protected by the First Amendment). But, yes, a well-crafted ordinance is constitutional.
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AJ, 7 Oct 2014 @ 9:23am

Re: Re:
Your response was a good read. I realize you get beat up a lot around here, sometimes you deserve it, but right or wrong I do enjoy your posts, keep it up.
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Anonymous Coward, 7 Oct 2014 @ 9:45am

Re: Re:
This makes sense. But onyl giving people five seconds to disperse is not nearly long enough for a large protest involving thousands of people. I'd give at least 15 minutes for a crowd that large to disperse peacefully, and likely more.
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anti-antidirt (profile), 7 Oct 2014 @ 9:46am

Re: Re:
I disagree with you.
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Anonymous Coward, 7 Oct 2014 @ 9:46am

but sadly no '5 Second Rule' for police shootings
A '5 Second Rule' would be a big improvement for many people shot and killed by police simply because they didn't obey orders fast enough. I've seen enough YouTube videos to know that cops rarely wait a full five seconds between yelling "drop the weapon" and shooting the guy dead for remaining motionless.
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Michael, 7 Oct 2014 @ 9:52am

Re: Re:
I cannot find any specific "failure to disperse" law for Missouri, but I would tend to expect this to simply be disorderly conduct in most states. I would appreciate it if anyone has the specific statute information under which these protesters were arrested.

For it to qualify as disorderly conduct in Connecticut, at least, they would not just have to be any kind of an obstruction, but they would have to no longer qualify as peaceful.

I would expect a state law that enforced the disbursement of peaceful protesters - even if they obstruct traffic or access to buildings - to fail a constitutional challenge. Sit-ins and picket lines have always been regarded as protected expression and are specifically designed to cause these kinds of disruptions.

As antidirt said, something may be crafted in a way to avoid trampling on protected protests, but a simple "if you are in the way we can arrest you" statute would be problematic.
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Michael, 7 Oct 2014 @ 9:56am

Re: but sadly no '5 Second Rule' for police shootings
I'm not usually one for defending police shootings, but you cannot put an egg timer on when law enforcement can pull the trigger. If a citizen is in danger and the officer needs to file a sidearm, making them wait 5 seconds would be a big problem.

I believe there are many cases in which police have used lethal force unnecessarily, but a rule like this seems like a good way to create more problems than you solve.
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Just Another Anonymous Troll, 7 Oct 2014 @ 10:08am

Re: Re: Re:
You do realize that Antidirt isn't trolling right now, right?
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AricTheRed (profile), 7 Oct 2014 @ 10:43am

Re: Re: but sadly no '5 Second Rule' for police shootings
The sad thing is, and I've said it before, the cops need, in my opinion, to follow a similar set of ROE (Rules of Engagement) that we have our service members use now for counter insurgency, or that is what they will eventually have on their hands, an insurgency. (Bundy Ranch anyone?)

Do not fire on the people unless you are EFFECTIVELY engaged.
Let me say it again. EFFECTIVELY ENGAGED! 'Cause if you are not EFFECTIVELY engaged, and you shoot someone and they die, it is called murder.

Can you shoot a guy in Afghanistan for holding an AK?
No. He has to be shooting at you. And not only shooting at you but likely to hit someone.

Can you shoot the guy walking around Walmart, in a state with no prohibition of the open carry of long arms, shoot him and he dies, and he never fired a shot, never mind that it was a toy and not a real rifle?

Yup 18yr old Marine does that in-country. Welcome to the brig Private Shmuckatelly, enjoy your stay.

Unarmed civilian that is running away from you shot dead on the sidewalk? Yup, you got it right again! Good job, Murderer!

If we can train 18yr olds from every walk of life to do this and when they don't run 'em up on charges, then we should be able to expect the same level of "Don't murder citizens" from our "Law Enforcement Officers".
But perhaps, again I'm just wishing for things to be better.
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Coyne Tibbets (profile), 7 Oct 2014 @ 10:45am

Stop and arrest
I'm surprised the judge missed the best LEO strategy of all (as a skit):

"Stop right there!" Citizen stops, as ordered. 1...2...3...4...5 "You're under arrest for violating the keep moving policy! Meet my nightstick, scum!"

It's hard to imagine a policy more open to abuse.
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Ninja (profile), 7 Oct 2014 @ 10:49am

Re: Re: Re:
Again, if it's peaceful protesting why would they need to disperse? Why would you need a law if nothing wrong is being done? I understand that maybe a very narrowed nod concerning violent gatherings or something but an entire law open to abuse?
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Ninja (profile), 7 Oct 2014 @ 10:52am

Re: Re: Re:
That. Those disorderly conduct laws are problematic per se but they could be written in a manner that would leave such protests alone. The problem I see here is that there are countless examples where the police started the disturbances and turned things violent so even if you explicitly rule peaceful protests as exempt from such law it is still very open for abuse.
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Anonymous Coward, 7 Oct 2014 @ 11:13am

I wonder if the 5 second rule applies to peaceful protestors who applied for a permit, and were granted the right to assemble by the government. Or does the 5 second rule only apply to those who didn't have a protesting permit, and were unlawfully assembling.

Remember, the 1st Amendment right to assembly only applies if you have a government issued permit permitting you to do so.
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Anonymous Coward, 7 Oct 2014 @ 11:19am

Re: Re: Re: Re:
Again, if it's peaceful protesting why would they need to disperse? Why would you need a law if nothing wrong is being done?
If the peaceful protesters were arrayed such that nobody could pass from one side of the crowd to the other and there existed someone who had a legitimate need to pass quickly (e.g. ambulance on a call, police responding to an in-progress violent crime on the far side of the protest, etc.), I could see arguing the protesters have a duty to disperse enough to let the other party pass, though not necessarily a duty to leave the area entirely. That said, I don't recall any accounts of Ferguson protests that were disruptive in the way I describe.
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antidirt (profile), 7 Oct 2014 @ 11:27am

Re: Re: Re:
I cannot find any specific "failure to disperse" law for Missouri, but I would tend to expect this to simply be disorderly conduct in most states. I would appreciate it if anyone has the specific statute information under which these protesters were arrested.

It's this statute: http://law.justia.com/codes/missouri/2011/titlexxxviii/chapter574/section574060
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Michael, 7 Oct 2014 @ 11:29am

Re:
I wonder if the 5 second rule applies to peaceful protestors who applied for a permit

If you have to apply for a permit to protest, you are not free.
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antidirt (profile), 7 Oct 2014 @ 11:30am

Re: Re: Re:
Your response was a good read. I realize you get beat up a lot around here, sometimes you deserve it, but right or wrong I do enjoy your posts, keep it up.

Well, thank you! I enjoy constitutional law (specifically, free speech, due process, equal protection, and search/seizure) as much as I do IP law.
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Anonymous Coward, 7 Oct 2014 @ 11:38am

Re: Re:
"f you have to apply for a permit to protest, you are not free."

I agree. It says a lot about the state of America today.
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Michael, 7 Oct 2014 @ 11:46am

Re: Re: Re: Re:
Thank you.

As expected, it is specifically about people refusing to disperse at an unlawful assembly, so as long as the protest is not in violation of the law, they would not be able to arrest people for refusing to disperse.

In Ferguson, they put the cart before the horse and were dispersing people that were not at the scene of an unlawful protest and then arresting them for not complying with the order.

Regardless, this is the type of unnecessary law that should be unconstitutional simply for being redundant. If you are already unlawfully protesting, they should be arresting you rather than dispersing you. Arresting someone for NOT leaving the scene of the crime seems a bit ridiculous.
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Michael, 7 Oct 2014 @ 11:51am

Re: Re: Re: but sadly no '5 Second Rule' for police shootings
An "Effectively Engaged" standard would not work for civilian law enforcement. Their job sometimes requires engaging to prevent civilians from being harmed. From a military standard, it may be acceptable to allow someone to kill a civilian or another combatant, but in civilian law enforcement, that does not work.

Law enforcement officers in the US are subject to "rules of engagement", but it seems less and less like they are being held appropriately accountable when these rules are violated. Rather than adding on more or different rules, we need to fix the broken process of accountability.
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Bri (profile), 7 Oct 2014 @ 11:54am

The laws of the playground
Do they also use the "I licked it, it's mine!" rule to enforce civil forfeiture?
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antidirt (profile), 7 Oct 2014 @ 12:01pm

Re: Re: Re: Re: Re:
As expected, it is specifically about people refusing to disperse at an unlawful assembly, so as long as the protest is not in violation of the law, they would not be able to arrest people for refusing to disperse.

Right. It's one crime to form an "unlawful assembly," which has to be six or more people who assemble for the purpose of violating a criminal law: http://law.justia.com/codes/missouri/2013/title-xxxviii/chapter-574/section-574.040/

It's another crime to not disperse from that "unlawful assembly" when so ordered. If there's less than six people, or if they're not assembled for an illegal purpose, then these statutes don't apply.
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Anonymous Coward, 7 Oct 2014 @ 12:02pm

Re:
Remember, the 1st Amendment right to assembly only applies if you have a government issued permit permitting you to do so.

You call that a right?
I don't recall needing permission to exercise a right.
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art guerrilla (profile), 7 Oct 2014 @ 12:04pm

Re: Re: but sadly no '5 Second Rule' for police shootings
nope, not going to let this stand:
GIVEN the HUGE asymmetrical response of donut eaters to LAW ABIDING citizens, i think WE would end up with a NET POSITIVE number of live citizens IF WE TOOK FIREARMS/KILLING TOOLS AWAY from the piggies...
they have PROVEN they are NOT responsible gun owners/users...

would one in a MILLION people die because piggies could not mow down a real perp who was really killing people ? yes, i'm willing to live with that one 'preventable' death for the HUNDREDS -if not thousands- of lives SAVED by piggies not being to roll up, blow up, and skate away with ZERO consequences...

again, i have ZERO doubt it would be a NET POSITIVE number of citizens ALIVE IF we took the guns away from the killers: kops...
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swattz101, 7 Oct 2014 @ 12:21pm

Re: Re: Re: Re:
It would depend on where they are peacefully protesting. The recent protests in Taiwan come to mind. If I remember correctly, they were blocking one of the main subway stations in the business district (or something like that). Sane idea idea if protestors block an entire main street.

I don't see a problem with a peaceful protest blocking access to something (street, building, entrance gate, treeline) for a period of time, but at some point, blocking something may block someone else's livelihood or cause danger to other citizens.
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John Fenderson (profile), 7 Oct 2014 @ 12:32pm

Re:
"Remember, the 1st Amendment right to assembly only applies if you have a government issued permit permitting you to do so."

I think that an extremely good case can be (and has been) made for why permitting is desirable in certain circumstances. Requiring a permit to hold an event in a public park makes sense, for instance, to ensure that every citizen gets a fair shot at using the park. Requiring a permit to hold an event that shuts down public thoroughfares makes sense for similar reasons.

The problem isn't the permitting as such. The problem is when permits are granted or refused based on what the event is for rather than to manage the logistics of many people sharing the same public space.
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Anonymous Coward, 7 Oct 2014 @ 12:47pm

Re: Re:
What happens if people are protesting for changes in the government, and the government denies the permits?

Answer: Occupy Wall Street, Tiananmen Square, and Ferguson.

Do you think the protesters in Hong Kong filed for a permit? If they did file for one, do you think it would be granted by the Hong Kong government? According to the HK government, the protests are illegal.

I can only hope people realize how filing for protest permits is an unworkable situation. No matter which angle you view it from.

Except from the governmental angle.
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Anonymous Coward, 7 Oct 2014 @ 12:51pm

Re: Re:
No, I disagree John - the problem is EXACTLY the permitting.

If you have a problem with the government (who, coincidentally, are the ones you're asking the permit from), what makes you think they will allow the protest?

Asking for permission is a rigged game, plain and simple.

Again, if you have to ask for it, it's not a right.
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Anonymous Coward, 7 Oct 2014 @ 1:14pm

everything that is going on in Ferguson (and elsewhere no doubt) is meant to try to get attention off of the murder by police of the black teenager, Michael Brown, a couple of months ago. the chief of police, along with everyone else in the force there and elsewhere are racking their brains trying to think of who/what they can blame to get the charges against the officer concerned dropped and get a carte blanche to do what the hell they like, when they like, to whosoever they like, with absolute impunity!
the police are there to protect people. what has happened in almost every place in the USA, and probably elsewhere as well, is that they are turning into a force that thinks it is completely in charge of everything, can throw orders about as they wish and arrest/punish/beat the shit out of anyone who doesn't do as instructed. in other words, every American town etc is turning into an authoritarian place where the only ones with rights are the police and those the police decide can have some!!
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John Fenderson (profile), 7 Oct 2014 @ 1:40pm

Re: Re: Re:
This is a response to you and the AC above you. Nothing in either of your comments contradicts what I am saying: that there is a legitimate reason for permitting.

The fact that governments abuse permitting to suppress speech they don't like doesn't mean that permitting is always illegitimate.

Also, note that I'm saying something very narrow and specific here. I'm not saying that protesting without a required permit is a bad or illegitimate thing! Not even close.
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Anonymous Coward, 7 Oct 2014 @ 1:42pm

After 5 secs, we're gonna EAT you !
That's the 5-sec rule I remember.
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AricTheRed (profile), 7 Oct 2014 @ 2:05pm

Re: Re: Re: Re:
John's point of the permit seems to be that if The Man is going to require a permit, then they SHALL issue it when requested, and the only seemly acceptable reason not to is a simple logistical scheduling conflict. Like described below...

Sorry, Guy with Grocery Bags, The Peoples Army is utilizing Tiennaman Square for main battle tank parallel parking paractice, from now until the 5th of Neveruary, year of the Apple. Please re-apply after that for your peacfull protest permit.

Would You Like To Know More?
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John Fenderson (profile), 7 Oct 2014 @ 2:42pm

Re: Re: Re: Re: Re:
"Would You Like To Know More?"

Genius. Thank you for giving me my first genuine laugh of the day! Yes, sadly, it's been one of those days.
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anon, 7 Oct 2014 @ 4:44pm

wait ... the cops were EATING protesters?
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Anonymous Coward, 7 Oct 2014 @ 5:40pm

Re: Re: Re: Re:
I'll agree he's not trolling.

That said, just because a pile of shit smells a little less unpleasant for five seconds doesn't make it any less shitty.
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Anonymous Coward, 7 Oct 2014 @ 8:40pm

Re:
Only the ones that fell on the floor
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Anonymous Coward, 8 Oct 2014 @ 3:45am

Re: but sadly no '5 Second Rule' for police shootings
or they shoot first then yell drop the weapon, or freeze
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Anonymous Coward, 8 Oct 2014 @ 3:47am

Re:
it applies to whoever they say it does. They have already shown open contempt for citizens rights, as well as for the very laws they are supposed to be upholding.

What is making up new rules on the spot to criminals like those.
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Anonymous Coward, 8 Oct 2014 @ 5:10pm

Re: Re: Re: Re: Re:
5 second rule doesn't apply
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Anonymous Coward, 8 Oct 2014 @ 5:18pm

Re: Re:
...or had holes in the middle
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nasch (profile), 10 Oct 2014 @ 8:18am

Re: Re: Re: Re: Re:

Regardless, this is the type of unnecessary law that should be unconstitutional simply for being redundant. If you are already unlawfully protesting, they should be arresting you rather than dispersing you.

What should the police do if there are 100 people at an unlawful protest? Isn't it better for everyone if they can legally order the people to leave, rather than having their only option to arrest everyone?
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nasch (profile), 10 Oct 2014 @ 8:20am

Re: Re: Re: but sadly no '5 Second Rule' for police shootings
Don't forget the guy who was shot when the officer told him to get his license and he started to do so.
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GEMont (profile), 13 Oct 2014 @ 4:40pm

I still think that Ferguson is simply a shock test by the USG to see:

1. What it can expect to get away with easily, and;

2. What laws need to be re-interpreted in order to get away with the stuff it found hard to get away with in the shock test, and;

3. What new legislation/executive orders need to be put in place to make the process more stream-lined and the fallout less damaging to the USG's public relations image.

---
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Anonymous Coward, 2 Dec 2014 @ 8:48pm

How are the police being punished?
They may have (probably did) break the law in that they attempted to enforce a policy that was against Constitutional Law, but there is no penalty other than being told, "don't do that." Nor should there be (on the officers involved.) However, the policy makers (who SHOULD have used their access to attorneys) failed to do so. Where is their penalty?
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