Judge to decide if Mall of America will receive restraining order against Black Lives Matter protesters

With a planned demonstration by Black Lives Matter at the Mall of America less than two days away, a Hennepin County judge on Monday heard arguments over whether the shopping complex has the right to a restraining order against protesters.

In its request, the mall named four leaders of Black Lives Matter and asked Judge Karen Janisch to prevent them from encouraging people to demonstrate Wednesday and to take down any social media messages about the event.

The mall also wanted Black Lives Matter to post a social media message canceling the demonstration and to post a copy of the judge's restraining order, if one is issued.

Attorney Jordan Kushner, representing the named Black Lives Matter leaders, said the mall seeks to restrict the constitutional right to free speech.

Kushner called mall officials' demands "oppressive and abusive" and argued that the mall has means to keep people from protesting without a restraining order, because the mall can remove people protesting on private property.

"We are trying to stop unlawful trespassing on private property," said Susan Gaertner, attorney for the mall. "If an order isn't issued, there will be irrevocable harm. This is being done for the safety and experience of our guests."

Janisch is expected to rule by Tuesday.

However the judge rules, Black Lives Matter leaders said they won't cancel the demonstration. Miski Noor of Black Lives Matter said not showing up would be allowing the mall "to silence us."

Bloomington Deputy Police Chief Mike Hartley declined to comment how security would be handled on Wednesday.

The mall's request follows a November decision by Hennepin County Chief Judge Peter Cahill, who dismissed charges of unlawful assembly and aiding trespass against 11 Black Lives Matter organizers following a large protest at the mall last Christmas season. Cahill kept in place trespass charges against 17 individual protesters. He said no group possesses a constitutional right to political demonstration over the objection of the mall's private ownership and management.

Cahill also said no evidence showed that protest leaders actively opposed the police or mall management. In fact, organizers assisted in moving protesters out of the mall once they were ordered to disperse.

The judge noted that the more than 300 mall security guards and Bloomington police officers on hand didn't move to break up the demonstration until it had gone on for about half an hour. By not breaking up the demonstration immediately, Cahill wrote, mall security and police gave tacit approval to it.

On Monday, six deputies monitored halls around the courtroom before the hearing. About 25 people supporting Black Lives Matter, and three of the four named leaders, sat quietly in the gallery.

Janisch peppered attorneys with questions, including whether she had jurisdiction to issue a restraining order, since several of those named hadn't been served legal notice on the mall's complaint. She also wondered why the mall waited until Friday to seek a restraining order.

The mall wasn't aware of the demonstration until Thursday and was surprised that Black Lives Matter was even considering a protest after all of the letters and legal actions taken against it, Gaertner said. Janisch was pulled from a Monday morning hearing to handle the mall's request in the afternoon.

Gaertner prefaced her reasons for the order by stressing that the mall had no issue with Black Lives Matter's message. She also said it is not trying to stifle free speech. But, she said, nothing had changed from Cahill's recent ruling that the mall is private property.

"The mall is a place to shop, a place for school choirs to sing. Not a place for a demonstration," she said.

Last year's protest caused an estimated 24,000 people to bypass shopping at the mall, according to traffic statistics in court documents filed by the mall. One family attraction reported a 50 percent attendance drop, the documents said. Thousands of employees were hurt financially because of the protest.

Kushner said the four — Noor, Michael McDowell, Lena Gardner and Kandace Montgomery — can't be bound by an association to the group named in the complaint.

If the order were approved and anybody violating it were to be held in contempt of court, Janisch raised concerns that her potential caseload to handle the cases could last a year.

Gaertner acknowledged that the judge's order would have "a cutting edge" on how to deal with protests organized on social media.

She said the Black Lives Matter Facebook page had signed up more than 500 people to demonstrate at the mall on Wednesday.

After the one-hour hearing, one of the mall's attorneys served McDowell with the complaint. Each side held brief, dueling news conferences after the hearing.

This isn't just about Black Lives Matter, Noor said, but for everybody's free speech.

She said the mall is the "people's space" because of all the taxpayer subsidies it has received over the years. She said Janisch appeared open and fair during the hearing.

Gaertner, meanwhile, said that the judge needs to rule swiftly but that she asked good questions about the mall's request. As she spoke with members of the media, several people held signs behind her that read #MOASueMeToo.

"There are plenty of public places to demonstrate, like this courthouse," Gaertner said. "There isn't a lot of case law involving social media and protests. Our next moves will be taken one step at a time."

Organizers have no plans to halt the demonstration, they say, unless authorities release the tapes related to Jamar Clark's case, prosecute police by special prosecutor without a grand jury and bring federal terrorism charges against those accused of shooting five protesters in November near a protest at the Fourth Precinct police headquarters.

Clark was killed by Minneapolis police during a struggle on Nov. 15. Activists claimed he was handcuffed when he was shot, an assertion denied by the police union president.

David Chanen • 612-673-4465