A federal judge in St. Louis said Monday she will rule "as soon as possible" on whether it was constitutional for police officers to prevent protesters in Ferguson from stopping and lingering on public sidewalks in August.
Judge Catherine Perry heard more than seven hours of testimony Monday in a lawsuit brought by the American Civil Liberties Union of Missouri against the St. Louis County Police and the Missouri State Highway Patrol.
The so-called "five second rule" was a crowd-control strategy developed by the County police and the patrol, along with the St. Louis Metropolitan Police Department to respond to violence in Ferguson. Officers had noticed that whenever marchers paused, crowds would spread into the streets, blocking vehicle and foot traffic. A large group of standing protesters also gave violent agitators a chance to hide in the back of the crowd and throw rocks or shoot at police officers.
The officers were given broad discretion as to when to enforce the rule and how big of a crowd had to gather before protesters could be asked to move. Unless they were also doing something illegal, protesters could not be threatened with arrest.
But the rule was enforced so haphazardly that it became unconstitutional, said Grant Davis-Denny, an attorney for the ACLU.
"It gives citizens absolutely no idea when their activity is lawful or unlawful. It also gives police officers way too much discretion," Davis-Denny said. "And it's particularly problematic that all this occurs in a place where people are exercising their First Amendment rights."
Protester DeRay McKesson told the court that officers told him to move along for three reasons: He had stopped walking, he was walking too slowly, and he was walking in too small of an area. Grant Doty, a legal observer for the ACLU, said he was told to keep moving while he was on the phone. Protester Johanna Holbrook said she was not allowed to try and comfort an older woman who was clearly upset about something.
County police commanders provided somewhat contradictory evidence on what patrol officers on the ground knew about when and how to enforce the rule. Chief Jon Belmar admitted that he may not have made it clear enough to officers that they had discretion to enforce the rule based on the mood of the crowd. But Capt. Jeff Bader, the commander of the 5th Precinct, said he made it clear at all police roll calls that officers had broad leeway to enforce the rule. "We didn't want to be the flashpoint," he said.
It was also unclear if an injunction was even needed. Maj. J. Bret Johnson, the Missouri Highway Patrol field operations commander, said the patrol stopped enforcing the move along rule around Aug. 19, after determining it wasn't as effective as they wanted. Bader, however, said he believed the rule was still in effect, and would use it again if the county was called to assist in Ferguson.
If the rule isn't being enforced, said Davis-Denny with the ACLU, an injunction can't harm public safety. What's more, it's crucial to make sure that constitutional rights are protected going forward.
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