By David Schimke

A new generation of protesters is becoming increasingly vigilant and disruptive. Lawmakers, citing public safety, are writing legislation to deter their behavior.

For many Twin Citians, the week of July 4, 2016, remains seminal. The holiday took place on a Monday. On Tuesday, news broke from Baton Rouge, Louisiana, that two white police officers had held down a 37-year-old black man named Alton Sterling and shot him at least six times, killing him. (The officers, who had tased Sterling, said he was going for a gun in his front pocket. Neither of them was charged in the incident.)

The next day in Falcon Heights, Minnesota, Latino St. Anthony police officer Jeronimo Yanez shot a 32-year-old black man named Philando Castile five times, killing him. (Yanez would later testify that he believed that Castile, who had warned the officer that he was in possession of a licensed firearm, was a mortal threat. After that testimony, Yanez, who had been charged with manslaughter and reckless discharge of a firearm, was acquitted.)

That Thursday, in Dallas, Texas, a crowd gathered to protest both of the shootings. At the end of the demonstration a 37-year-old lone gunman killed five police officers and wounded nine of their colleagues. Other officers at the scene who tried to negotiate with the man, an Afghanistan veteran, said he was upset about blue-on-black violence and wanted to kill white people and police officers. The authorities killed him with a remote-control bomb.

The deadly aggression in Dallas would play a role in the overall reaction to a protest that took place two days later in St. Paul. On the evening of July 9 and into the early morning hours of July 10, between 200 and 300 people—including some who had demonstrated at the governor’s residence earlier in the day—marched onto Interstate 94 from Lexington Avenue to protest Castile’s death, halting traffic to and from downtown St. Paul for five hours.

Many protesters sat and stood on the highway, while others gathered on a pedestrian overpass. St. Paul police, who were dressed in riot gear, reported being hit with bottles, rocks, and fireworks. Twenty-one officers were injured, one seriously, when he was hit by a piece of rebar police say was thrown from the overpass. Before it was over, authorities had used tear gas to disperse the crowd, and 102 people had been arrested. Members of Black Lives Matter who had participated in the action condemned the violence but defended their right to occupy the highway.

It was not the first time Minnesota residents had blocked traffic or disrupted commerce in response to a fatal officer-involved shooting. In early November 2015, two white Minneapolis police officers were involved in the fatal shooting of a 24-year-old black man named Jamar Clark. Witnesses said he was handcuffed at the time. The NAACP and Black Lives Matter called for immediate demonstrations, and a tent city was erected outside of the Fourth Precinct police station in North Minneapolis. Hundreds of people demanding that officials release a video of the incident then clogged a section of I-94 in North Minneapolis. On December 23, 2015, protesters met at the Mall of America and moved to the Minneapolis-St. Paul International Airport, closing security lines for nearly an hour and jamming up traffic coming in and out of the main terminal.

Because the sit-ins and sit-downs related to the tragedy in Falcon Heights took place during such a tumultuous week in the summer of 2016, however, they received more national attention than the demonstrations in 2015. In part, this was because commentators opined that in the wake of the Dallas killings, the officers in St. Paul—who were trying to keep order on the highway while people were throwing objects at them—must have felt like they were in a shooting gallery.

The events in 2016 also sparked a more intense, consequential local conversation around the nature of civil disobedience and public safety that continues to this day. Those who participate in and support disruptive protests argue that civil disobedience is the natural consequence of rage, and a necessary, historically proven tactic in the pursuit of justice. Citizens who are concerned about public safety counter that blocking traffic and disrupting commerce crosses a line, because it infringes on the rights of others.

Early in the 2017 session at the Minnesota legislature, Republican-controlled public safety committees in the House and Senate voted to increase penalties for disruptive protesters. Various iterations of a bill were proposed, including one that would hold demonstrators convicted of unlawful assembly or public nuisance financially responsible for any cost related to policing. Ultimately, though, it was a bill introduced by Representative Nick Zerwas that made its way through to Governor Mark Dayton’s desk.

The Star Tribune’s editorial board approved of the measure. It increases penalties for blocking freeways or airport roadways, and for blocking mass transit, from a misdemeanor to a gross misdemeanor, which can result in higher fines and up to a year in prison. Teresa Nelson, interim director of the ACLU of Minnesota, called the regulation’s language “chilling” and wrote on the organization’s website that by “ratcheting up penalties for peaceful civil disobedience, we are sending a message that dissent and demands for justice will simply not be tolerated anymore.”

Ultimately, the governor did not sign the legislation. It will be reintroduced in 2018, though, and advocates will have more recent incidents to reference—the most notable of which harkens back to July 2015. On the night of Officer Yanez’s acquittal, June 16, 2017, some 1,500 protesters marched onto I-94 near Dale Street and closed the highway for three hours. No officers were injured. Eighteen people were arrested.

Over the past year, 18 states have considered legislation designed to curb lawlessness in a period of increased activism marked by large demonstrations, street protests, and other spontaneous, digitally driven actions meant to disrupt the flow of traffic or commerce or both. Bills have already been passed in North Dakota and South Dakota, driven in large part by grassroots opposition to the Dakota Access Pipeline and focused on policing behavior on public lands. Oklahoma created a statute to increase punishment for those convicted of obstructing critical infrastructure. Tennessee decided to impose fines on anyone who obstructs an emergency vehicle’s access to a street or highway.

In 11 other states, including Minnesota, one proposal or another failed in session. Iowa considered five-year prison sentences for highway obstruction. In Missouri the sentence would’ve been seven years, and there was also talk of illegalizing wearing masks in certain situations. Arkansas considered banning mass picketing.

A “hit and kill” bill in North Carolina has been proposed to provide immunity to anyone who hits a protester who is blocking traffic, unless the protester is participating in a permitted event. Conversation around the initiative, which has been proposed in other states, ceased after a man drove a vehicle into a crowd of anti-racist protesters in Charlottesville, Virginia, killing 32-year-old Heather Heyer and injuring at least 19 others. In Virginia, the senate voted down a proposal that would’ve defined the disablement of critical infrastructure as a domestic terror threat.

In a majority of cases, Republicans have sponsored and championed these law-and-order efforts. This has made some Democrats, as well as Independents and Libertarians occupying different parts of the ideological spectrum, wonder whether there’s a coordinated campaign going on to quiet people upset over the election of President Donald Trump. One talking point that’s used by ACLU representatives in a number of states is that the timing is more than coincidental, given that more people are standing up to be heard on subjects including blue-on-black violence and immigration.

Proponents of stricter regulations point out that some of the most tumultuous protests—including the one in St. Paul 14 months ago—happened under President Obama’s watch; most also insist that they support free speech and assembly, as long as it doesn’t constitute a clear and present danger.

Both sides ardently believe that the U.S. Constitution justifies their position. Activists say increasing penalties is an effort to discourage free speech and freedom of assembly, which are broadly protected by the First Amendment. Proponents of increased punishment for protesters note that the amendment allows for people to “peaceably” assemble, and that no right is absolute. They also suggest that current laws are insufficient, since they clearly aren’t deterring disruptive behavior.

The dialogue over what it means to increase penalties, particularly for blocking a highway, is complicated by history, especially because a majority of the most newsworthy protests prior to President Trump’s election centered on police shootings in black communities.

As the Christian Science Monitor posited in 2016, just a few days after the Castile shooting protests in St. Paul, “[Protesters] were occupying a highway that, a half-century ago, was constructed at the expense of St. Paul’s historically black community. Interstate 94, like urban highways throughout the country, was built by erasing what had been black homes, dispersing their residents, severing their neighborhoods and separating them from whites who would pass through at high speed.

“That history lends highways a dual significance as activists in many cities rally against unequal treatment of blacks: As scenes of protest, they are part of the oppression—if also the most disruptive places to call attention to it.”

Representatives from Black Lives Matter also say that highway blockage is part of a proud civil rights tradition, and often reference the Freedom Rides, Rosa Parks and the seminal Selma march led by Dr. Martin Luther King Jr. in 1965, which occupied the Edmund Pettus Bridge.

One response to the Selma comparison is that the march was using the bridge as a thoroughfare, not trying to block its use to wreak economic havoc. Another common refrain is that the civil rights movement of the ’60s was aimed at changing specific laws and was more agenda driven.

What’s more, despite the symbolic importance of major roadways, there’s simply an overall sense among people who support harsher penalties for disruptive protest that modern highways, particularly in growing metropolitan areas, are too busy, too important, and too dangerous to block.

Roads like I-94 are oftentimes a city’s main artery, and when you block that artery the potential consequences are too dire. Conversely, protesters believe the best way to raise the population’s attention around issues of injustice, especially in underrepresented communities, is to make life along that artery noticeably uncomfortable.

Before the presidential election in 2016, the Pew Research Center revealed that “For the first time in surveys dating to 1992, majorities in both parties express not just unfavorable but very [emphasis theirs] unfavorable views of the other party. And today, sizable shares of both Democrats and Republicans say the other party stirs feelings of not just frustration, but fear and anger.”

Most revealing: “Among those highly engaged in politics—those who vote regularly and either volunteer or donate to campaigns—fully 70 percent of Democrats and 62 percent of Republicans say they are afraid of the other party.”

Given the increasingly polarized state of the nation, part of what fuels passions on both sides of the debate around legislating the use of highways and roads is inherent distrust of the other’s motives. And it doesn’t help that at both extremes people have created conspiracy theories around unsubstantiated claims involving government-sponsored racial cleansing on the right and violent, anarchic revolution on the left.

The rhetoric between police and protesters has also become increasingly heated. On September 17, in St. Louis, Missouri, peaceful demonstrations and vandalism followed the acquittal of white former St. Louis police officer Jason Stockley, who had been charged for fatally shooting 24-year-old black man Anthony Lamar Smith in 2011. At one point, officers policing the increasingly chaotic scene were heard chanting “Whose streets? Our streets,” a rallying cry that for decades has been used by activists, including those affiliated with Black Lives Matter.

Ezekiel Edwards, director of the ACLU Criminal Law Reform Project denounced the appropriation: “Make no mistake, the police were sending a clear and chilling message to communities of color in St. Louis.” St. Louis police commissioner Lawrence O’Toole didn’t comment on the reported incident, except to say that his officers did “outstanding work” and “owned the night.”

David Schimke, Citizens League Voice editor

It was not the first time groups with conflicting agendas have used the phrase. (Self-identified white nationalists, captured on film by filmmakers from Vice, used it repeatedly in Charlottesville.) It likely won’t be the last. And as people continue to discuss the scope and effectiveness of protests in communities and on campuses around the country, Minnesota lawmakers will once again formally address the question.