Is Bloomington a company town?
Or do #BlackLivesMatter?
[See the addendum below about a prosecutor’s role]
Is Bloomington a company town, wholly captured by the Mall of America (which, ironically, is owned by Canadians; perhaps its name should be the Mall from Canada) or do its elected officials, and its city attorney, retain at least some measure of fidelity to democratic, First Amendment, and community principles? That is the issue that was aired at the Bloomington City Council meeting Monday evening, January 5th; not in so many words, of course, but that was the subtext. The Council heard from the public about the #BlackLivesMatter rally that took place at the MOA on December 20th.
The photo is from a recount of the evening by John Reinan, reporting for the Strib. Twitter was there, too, naturally. From reports, members of the Council sat and listened while speaker after speaker, including the young fellow above, asked the city not to mount a punitive jihad against the rally organizers. According to Reinan:
Only one person spoke against the protesters. “I’m here representing what I believe is a silent majority,” said Corinne Braun. “What was done at that mall was wrong. The members of this movement need to face their mistake.”
Those of you of a certain age (mine) will catch a whiff of nostalgia when you hear the Nixonian “silent majority.” Those were really good times, eh (Canadian pronunciation)?
But the star of the show was Bloomington’s hysterical city attorney, Sandra Johnson, who has a remarkable ability to spin out instant classic lines. We all got some inkling of this when when Johnson said shortly after the rally:
“It’s important to make an example out of these organizers so that this never happens again,” Johnson said. “It was a powder keg waiting for the match.”
I think she really meant to say “these people.” And we know who “these people” are.
The difference between the rally and Johnson’s description of it is profound.
But back to the council meeting. Johnson said this:
“The city prosecutor’s role does not have the luxury of selectively prosecuting cases that come before us,” Johnson said. “We cannot let politics or public opinion interfere with prosecutorial discretion.”
Let me rephrase that:
I don’t have the power to pick and choose cases to charge, but really I do, and I won’t let the concerns of the public interfere with my arbitrary exercise of prosecutorial discretion.
A real public servant, forsaking all luxury in the service of a shopping center.
Choosing to focus only on some rally participants is — obviously — “selectively prosecuting cases.” To be so oblivious to that is to suffer from crusader’s myopia (defined here).
Johnson also remarked:
“There is a cost to civil disobedience.” Her job, she said, is to turn suspected lawbreakers over to the criminal justice system, “which will treat them with dignity and respect.”
I think that’s a moral dodge; she’s the one who is going to decide who to “turn over to the criminal justice system.”
I’ve saved the best for last:
Johnson also said she plans to seek restitution for the costs of 250 police at the event and lost sales during the two to three hours when more than 75 stores in the mall were closed.
I will assume for the sake of argument that Johnson actually understands what would be involved in attempting to prove these losses. It isn’t a matter of simply presenting a bill to a judge. Each item would have to be competently proven, and the defendants would have the right to confront each witness testifying to loss, and to challenge the authenticity and accuracy of each item of claimed loss.
Perhaps the city attorney will try to get redress for Corinne Braun’s emotional distress, too.
The preliminary issue, naturally, is whether any such losses were incurred because of the rally organizers, all of the rally participants, or most likely of all, the hysterical overreaction of the Bloomington City Attorney and the Bloomington Police Department.
And guess who will be the principal witnesses here? Could be fun.
Addendum – January 7th
What is a prosecutor’s job, anyway? You may be surprised to learn that it is not to just notch belts and hang pelts. The Criminal Justice Section of the American Bar Association has standards for prosecutors. Here are some of them:
Standard 3-1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, he or she should stimulate efforts for remedial action.
(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor’s jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4-1.5.
We can see that these standards seem at odds with the conduct of the Bloomington City attorney in at least a couple of respects.
A prosecutor not only has the “luxury” to seek justice, she has a duty to do so, and that is not merely to obtain convictions. Justice is not attempting to economically destroy a small group of persons when many, many participated in the conduct complained of. Justice is not about making points or making examples of people, unless you are posting their heads on poles on London Bridge.
Restitution is obviously not really the city attorney’s goal, either, because if it was, she would be trying to cast as wide a net as possible to increase the recovery.
Justice also includes the notion of proportionality to the harm created. The rally organizers assured the MOA that their intentions were peaceful, and steps were taken to make sure it was. The MOA’s response was that the rally could use a frozen parking lot.
The city attorney just seems bent on public revenge which, you will notice, is nowhere mentioned in the standards above.
The standards require that a prosecutor seek to “reform and improve” the administration of criminal justice (there’s that word again). In the case of City Attorney Sandra Johnson, perhaps that might have included advice to the Bloomington City Council that it should require the MOA to provide some space and time, on a permit basis, for First Amendment activities when it was helping the MOA take down a quarter of a billion dollars of public money at the Legislature in 2013.
Just an idea.
I think there is one other standard that is apposite:
Standard 3-1.4 Public Statements
(a) A prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.
Threatening to make examples of people and calling a peaceful rally a “tinderbox” are about as clear an example of violation of this standard as I can think of. Since the “tinderbox” statement is untruthful, it is clearly prejudicial.
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