Try, Try Again

Attorney Jordan Kushner is headed back to court on behalf of four protesters whose cases are being reopened by city officials
Craig Lassig

When Katie McNichols saw an envelope from Hennepin County Court in her mailbox on December 30, she was expecting a holiday windfall of sorts: a formal dismissal of criminal charges that had been hanging over her for four months. McNichols, along with 65 other protesters, was arrested for participating in the highly publicized demonstration against the July 24 conference of the International Society for Animal Genetics in downtown Minneapolis. When charges against McNichols and 15 other protesters were dismissed in November, the Minneapolis resident figured her legal troubles were over. Instead, she says, the Minneapolis City Attorney's Office was playing Grinch: She, along with 11 other protesters, received summonses to stand trial for the same charge that had earlier been thrown out. "A lot of us thought, 'It's over. Good. Now we can get on with our lives,'" she says. "People are livid about this."

Like most of the other ISAG protesters, McNichols was charged with unlawful assembly, a misdemeanor that carries a maximum penalty of 90 days in jail and a $700 fine. And, also like most of the protesters, she was initially offered a "continuance for dismissal," which meant that her record would have been cleared after she completed two days of community service. Though some of the protesters accepted the deal, McNichols and many others refused on principle. "We didn't do anything wrong," she says. "What we were doing out on the street was community service."

When McNichols went to court in November, Hennepin County District Court Judge Richard Hopper dismissed 16 of approximately 35 ISAG-related cases because the city had failed to establish probable cause that the individual defendants had broken the law. In each of those cases, Hopper wrote in his decision, "the complaint is framed in very general terms and the police reports fail to describe any specific conduct by the defendant. Therefore, based upon the current record, the court has concluded that it is not fair and reasonable to require the defendants to stand trial."

Hopper left the door open for the City Attorney's Office to renew its prosecution, however, "if it is able to document with more specific evidence that a defendant engaged in criminal conduct." On November 29, after reviewing videotapes from the protest, Assistant City Attorney Mike Hess says, his office decided to do just that. According to Hess, it is not unusual to recharge cases after they have been dismissed. But the relative triviality of the alleged infraction has led some to question why the City Attorney's Office is pursuing prosecution of these cases so vigorously.

Jordan Kushner, who is defending four of the recharged ISAG protesters, calls the city attorney's decision to continue pursuing the cases "ridiculous." "If it were a felony or a violent assault, then obviously they wouldn't want someone to get away with it," he argues. "But it's unheard of to recharge a misdemeanor. It's just not something that happens.

"It's completely about [the city's] political agenda," he continues. "It doesn't have anything to do with public safety."

Kushner claims that the city attorney's primary motivation in pursuing convictions is to justify what many citizens have complained was the Minneapolis Police Department's overreaction to the protest--including the $1.15 million spent to deal with the event. "It's political damage control for them," he insists. "They're trying to put a chill on people who want to protest."

Hess counters that the City Attorney's Office is doing nothing untoward. "If you want to protest in the city, and you do it peacefully and lawfully, great. Get your message out. Fantastic. But when you disrupt business and destroy property, you should have to give something back to the community." (None of the ISAG protesters has been accused of destroying property, Hess concedes.)

Hess also rejects the notion that prosecution of the protesters is being used to justify the police department's actions. "Frankly, I don't care how much the police spent," he says. "If the police did something illegal or unconstitutional, then I care. But if we can prosecute using evidence obtained legally, then it has nothing to do with how much the police spent."

Nevertheless, police procedure has become central to the case. In preparing his case, Kushner requested that documents--including police training videos, incident reports, and the names and photos of the approximately 35 officers assigned to the protest--be turned over to the defense. The purpose, he says, was twofold. "The obvious possibility is that a cop claims he saw something illegal, and maybe we find out he wasn't in any position to see it. We could establish that by calling them as witnesses."

But in addition, Kushner wanted to determine the extent to which undercover Minneapolis police officers had participated in the demonstration. "We want to know what their behavior was, and whether they were instigating or encouraging people to do things that weren't legal. That could certainly cast a cloud over the accusations."

According to Hess, the city has already revealed the names and badge numbers of the arresting officers. To disclose the identities of other officers on the scene, whom he deems "irrelevant" to the case, would, he says, compromise other undercover police operations, "making an inherently dangerous job more dangerous."

Kushner disputes that logic. "It's bizarre that they're saying that this would put officers' lives at risk," he complains. "We're not talking about a violent crime here. It was a peaceful protest. These people are not dangerous by anyone's stretch of the imagination." He notes that when the police use undercover operations to arrest more serious felons, the identities of the officers involved are routinely disclosed when they take the witness stand. "In drug cases or a case that maybe involves a weapon, it's a given you find out who the witnesses are."

In a mid-October decision, Judge Hopper agreed. "The state chose to infiltrate the protest group and then elected to charge the defendants with the acts of the group. Consequently, the defendants are entitled to this information in order to prepare for trial." The issue is far from settled, however; Hess's office has appealed Hopper's decision to the Minnesota Court of Appeals, where it will be heard later this month. If the decision to release the identities of undercover officers is upheld there, Hess may appeal to the state supreme court.

The case has already produced political fallout. In early October, largely in response to the ISAG controversy, Sixth Ward city council member Jim Niland introduced new guidelines laying out "commonsense" police procedures for dealing with political protests. Among the 19 recommendations, which were approved unanimously by the city council and ratified by the mayor, is a ban on the use of undercover officers to infiltrate demonstrations. "The bottom line is that we shouldn't be doing this," says Niland. "It's not a good use of taxpayer money to have officers marching in demonstrations, carrying signs, and chanting slogans."

Whether or not last summer's protest ultimately instigates a change in police tactics, Niland maintains, the city's case against the ISAG protesters is best dropped. "I think it's absurd to prosecute something like this that happened months ago. It's an enormous waste of time and energy. We should just let bygones be bygones."

Some activists, meanwhile, question the city's timing; protesters are to appear in court today, January 10, the same day the city council is scheduled to hold hearings on the reappointment of MPD Chief Robert Olson, who came under fire for his handling of the demonstrations. "We think it's very suspicious," McNichols says. "We feel like there could possibly be an ulterior motive for scheduling these things for the same day. Of course, we don't know that."

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