A small but growing number of prosecutors around the nation have been demanding that people arrested in political protests pay restitution for the costs of policing them and of disruptions they caused. In California’s Alameda County, the district attorney wants the 14 people arrested in a “Black Lives Matter” chain-in at a train station in Oakland last November to pay up to $70,000 to cover the cost of police and emergency responses. In Bloomington, Minnesota, where 10 people were charged Jan. 10 with trespassing, unlawful assembly, and other offenses for a pre-Christmas rally at the Mall of America, City Attorney Sandra Johnson says she wants them to pay more than $25,000 for the estimated cost of police overtime—plus more to compensate stores in the mall for the business they allegedly lost that day.
So far, no protester has actually been forced to pay such restitution, says Daniel Gregor, a New York-based lawyer who has represented activists for more than a decade. But in the last four years, he says, prosecutors have occasionally demanded it from people arrested in demonstrations against fracking and mountaintop-removal mining in western Pennsylvania, West Virginia, and Ohio. They primarily use it as a threat to get people to accept plea bargains. “It’s a relatively new phenomenon,” he says. “Fundamentally, it’s a bluff. It’s a scare tactic to get people to plead out.” The demand is “often floated in the initial feeling-it-out negotiation period,” he explains. “If you can terrify somebody by asking for $30,000 in restitution and then drop it in exchange for a plea, it’s a very powerful bargaining chip.”
Minneapolis lawyer Jordan S. Kushner, who represents some of the people detained in the Bloomington Black Lives Matter protest, was surprised by the prosecutor’s demand. “It’s never been an issue before,” he says. “I guess the city attorney basically works for the Mall of America.” He can’t tell if it indicates a new trend or is just a sign that “the mall is very upset.” The deeper civil-liberties issue he sees in the case is the ambiguous public-private status of malls. They are essentially public spaces, he says, the only place in many areas where people routinely gather in large numbers, but are owned by private corporations that “won’t allow any expression that interferes with their profit-making.” Still, it’s relatively rare for prosecutors to demand that protesters essentially pay for the cost of their own arrests.
A St. Louis lawyer affiliated with the National Lawyers Guild says he’s never heard of it, nor has a staff attorney for the American Civil Liberties Union in West Virginia, nor an environmental activist in eastern Pennsylvania—although, some point out, pre-trial negotiations are usually not publicized. Veteran Washington D.C. lawyer Mark Goldstone, who has represented “thousands and thousands” of protesters since the 1980s, has “never—ever—in 30 years heard of this tactic being used.” But, he adds, “it’s a very dangerous tactic that should be resisted. These groups don’t have $60,000 to pay for police and cleanup.
It clearly chills free speech. It clearly chills freedom of assembly. It clearly chills people’s interest in nonviolent civil disobedience.” He believes that prosecutors are using it in response to the Black Lives Matter protests’ tactic of drawing attention by disrupting business as usual, such as by blocking traffic. “They don’t want this tactic to continue to spread.” In that, he continues, it would parallel the nationwide police escalation of street-clearing and pre-emptive mass arrests in the early ‘00s, which developed after thousands of protesters in Seattle successfully blocked access to the World Trade Organization meetings there in 1999. In the city of Washington, he says, those tactics were largely quelled by a 2004 law that restricted what demonstrators could be arrested for, after the city had to pay out $20 million in false-arrest lawsuits.
There should be a price to pay for nonviolent civil disobedience, he says, but it should be proportionate. Courts shouldn’t buy into the idea that “these people disrupted commerce, so they should pay for it.” In the meantime, he cautions, activist groups need to be much more “legally aware,” such as by leaving the sites of demonstrations cleaner than they found them. If a prosecutor were to win restitution from a convicted protester, says Daniel Gregor, it would be ripe for a legal challenge—as long as the defendant did not agree to the payments as part of a plea deal. The basic legal principle for restitution, he explains, is “to make the victim whole” for damages, but “it has to be grounded in physical reality.” Therefore, a defendant convicted of spray-painting a wall could be assessed for the paint and labor needed to cover it up, and protesters who locked themselves down might be liable for the $173.12 cost of replacing a carbide wheel the cops wore out while trying to cut through metal—but those figures have to be documented by legally sustainable accounting. Are the stores in the Mall of America going to go to the trouble of giving the Bloomington city attorney sales figures for the Saturday before Christmas over the past few years, he wonders, and if sales were lower in 2014, would it be possible to prove that it was the protest’s fault? “Broad round numbers” like the $70,000 in Oakland, he says, are “preposterous” and “legally unsustainable.” This is an important “collateral issue” to fight, Gregor contends, because otherwise, prosecutors could “slap on a $3,000 price tag” for protests. It would be “outrageous,” he adds, if demonstrators were forced to pay the costs of grossly disproportionate policing, such as the 8,000-10,000 officers who covered marches of 800-1,000 people at the 2012 Republican National Convention in Tampa, Florida.