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STATE
COUNTY

OF

MINNESOTA

OF . HENNEPIN

DISTRICT
r~ : ~~

_: :

- ..

: :

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COURT

7 FOURTH JUDICIAL DISTRICT

-----------------------------------------------------------------State

of

Minnesota
-

ORDER

Plaintiff
vs

FILE #

Freeman Wicklund,
Alissa Eggert,
Peter Eckholtd,
Alethea Schaffer,

So 0429SG
96 043061
96 044022
96 043228

Defendants.

-----------------------------------------------------------------These defendants, appearing pro se, are charged with trespass


as a result of a demonstration in support of animal rights in the
Macy's court at the Mall of America in Bloomington.
'

They have moved to dismiss the charges,

on the ground that

prosecution is barred by their right to free speech under the First


and Fourteenth Amendments to the United States Constitution.

Both

the defendants and the prosection submitted well-researched and


well-written memoranda of law supporting their positions.
From discussions at the time of arraignment it appeared to me
that because the physical facts of what occurred were at least for
the most part not in dispute,

(that is, that the defendants were

peacefully demonstrating inside the Mall of America and refused to


disperse upon being ordered to do so) ,

it might be possible and

desirable for all parties to resolve the matter by a pre-trial


1

A-tr

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..
motion to dismiss, which I therefore encouraged.

This, of course,

was not to be taken as an indication of what the ruling on such a


motion would be, merely that it seemed an efficient approach that
could fully protect the parties's rights.
I.have carefully read the memoranda of law and the authorities
they cite, and beyond that I have conducted further research of my
own, particularly into the question of what role, if any, the state
constitution

(as

opposed

to,

or

in

addition

constitution)

may play in disposition of the

to,

the

important

federal
issues

presented.
The

parties

understandably

emphasize

the

federal

First

Amendment, but this, it seems to me, overlooks other potentially


important considerations, including but not necessarily limited to
the following:
Does the state constitution provide any greater free speech
protection than the federal constitution?

See State v. Scholberg,

412 N.W.2d 339, 344 (Minn. App. 1987), where the court declined to
decide the question.
Does Article I,

Section 3,

of the Minnesota Cons ti tu ti on,

referring to liberty of the press, apply here and, if so, does it


create broader protection that the federal First Amendment, which
uses quite different language?
Does the freedom on conscience clause of Article I, Section
16, of the Minnesota Constitution, which has no counterpart in the
federal constitution, apply here and, if so, does it prevent this
prosecution?

In particular,

it seems to me,

it is essential to

A-4~

examine the

language that says:

"nor shall any control of or

interference with the rights of conscience be permitted .. but the


liberty of conscience hereby secured shall not be so construed as
to excuse acts of licentiousness or justify practices inconsistent
with t;he peace or safety of the state .... "

This provision has

received recent authoritative attention, in State v. Hershberger,


462 N.W. 2d 393 (Minn. 1990), and see also Lundman v. McKown, 530
N.W. 2d 63 (Minn. App. 1995), State v. McKown, 475 N.W.2d 63 (Minn.
1991)
In short, it is apparent to me that the questions implicated
here cannot be satisfactorily resolved with out addressing at least
these additional questions.

And they are of sufficient importance

that it is a judge's right and probable duty to raise them. sua


sponte.

It would not, however,

be fair for me to answer these

questions without giving the parties a chance to be heard, if they


wish.
In addition to these legal issues, the present record is not
adequate

to

allow

evaluation

of

number

of

factual

points,

including put not necessarily limited to these:


To what extent,

if any,

is the Mall of America a state as

opposed to a private institution?

What, if any, involvement does

the state or city have in it?


To what extent were state agents involved in this incident?
What

specifically were

conduct in question?
.~

the

physical

circumstances

of

That is: how many people were present?

the flow of pedestrian traffic affected?

-.
3

the
Was

Was a danger or other

undesirable effect created by the defendants's conduct?


What if any alternatives were available to the defendants?
There a:re

references in the memoranda, to a

demonstration area outside the Mall,

permissible public

but no actual evidence or

specifics.
Were less restrictive alternatives than orders to leave and
trespass prosecution available to the Mall and the State?
U!"ldoubtedly there are other pertinent points, both legal and
factual,

which I

have not mentioned.

But these are enough to

indicate the reasons I have concluded that a ruling at this point


would be premature.
A trial date of January 8, 1996 at 8:30 a.m.
scheduled at Southdale Court.

is presently

The motion to dismiss will remain

open until that time and the parties may submit any evidence or
authorities
appropriate.

on

the

le~al

and

factual

issues

they

believe

Possibly stipulations can satisfy some or all of the

factual questions.
If the defendants desire a jury trial, it may be possible to
combine the trial with further hearing on the present motion.

If

they wish to waive jury trial and submit the matter to me, this
could certainly be done.
I also ask the defendants to advise me as soon as possible if
they wish to have a jury trial.
This deferred disposition of the motion implies no criticism
of any of the parties.
~

The matter was submitted as it was at my

suggestion, and it was my lack of foresight in anticipating some of


4

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State v. Wicklund, Eggert, Eckholtd & Schaffer

IT IS SO ORDERED:

BY THE COURT:

Dated: December 12, 1996


Jack

s.

Nordby

Judge of District Court

5.

STATE

OF

;~~ L:~ t~:hsTRICT

MINNESOTA

COURT

vs

MICHAEL

DERWOOD

JONES
Defendant

Michael

Derwood

Jones

is

charged

with

gross

obstructing legal process, misdemeanor trespass,


disorderly conduct.

misdemeanor

and misdemeanor

He waived his right to trial by jury.

The City of Bloomington is represented by Sandra H. Johnson,


Esq ..
The Defendant is represented by David L. Brehmer, Esq ..
FINDINGS OF FACT

1.

Michael

Jones,

age

35,

is

well-educated,

highly

articulate man with long experience in international relations,


government, and community affairs.

He has been especially active

and effective in advocating the rights of parent-less children, and


has been instrumental in achieving improvements in the treatment of
children who live in foster care with relatives other than their
parents (a status he experienced himself) .
2.

Mr. Jones is a large and passionate man as well.


1

He is

persistent and aggressive in the pursuit of what he believes tobe


legitimate

goals,

and earned

the

high

respect

of

respnsibble

persons in postitions of authority both in the governmetn and in


community relations orgaizations.
3.

Mr.

Jones

is

African-American,

had

been

the

victim

of

discriminatory treatment in the past as a result of this, and had


witnessed and otherwise became aware of other instances of the
unfiar treatment of minority citizens.
4.

In 1996, the Mall of America formulated a policy requirirng any

person under the age of 16 to be escorted by an adult while


visiting the Mall at certain hours on certain days.
of

the policy,

entirely clear.

The specifics

both in theroy and in implementation,

are not

It appears the intention was to enquire of persons

appearing to be near the age of 16,

to allow them to enter or

remain if they produced identification proving they were older, or


if

they were

escorted by adults.

The

security personnel who

testified were not agreed upon the apparnet age which triggered the
initial enquiry: 16,18 or 21. Mr. Jones was aware of this policy,
apparently in some detail.

(The policy was opposed by at least

some organizations representing or speaking for people of color and


the economically disadvataged,

and by Bloomington Police Chief

Lutz, who has earned the respect of at least one leader of these
chommunities by pursuing a law-enforcement police founded upon
racial and economic neutrality and fairness.
establish with certainty whether Mr.
Lutz's reputation in this respect.)
2

The record does not

Jones was aware of Chief

5.

On October 4, 1996, the day the escort policy went into

effect, Mr. Jones saw a news program about it,


widespread media coverage),

(the event received

and decided to go to

the Mall

of

America with his two young children and a number of friends, Mr.
Michael Griff in and his son,

a nineteen year old niece of Mr.

Griff in, (Zaki a) , and her daughter, and another friend named Steve.
Of these, the three children were obviously under the age of 16;
Mr. Jones and Mr. Griffin were obviously over that age; Zakia and
Steve were not obviously younger or older than 16.
6.
emerged

The group entered through Bloomingdales,


into

the

common

area

of

the

Mall

and as

security

they

personnel

requested identification of Zakia; she had none, but said she was
with Mr. Griffin, who confirmed this, and she was allowed to go on.
The

person

named Steve was

refused to provide it.

also

asked for

identification

and

The particulars of this and Mr. Jones's

proximity to it are not clear from the record, but it is undisputed


that Steve was asked to leave the Mall upon refusal to produce
identification and then arrested by Mall security agents.
7.

him.

Mr. Jones testified that he told the guards Steve was with

Believing that the arrest of his friend was improper and

illegal,

Mr.

Jones began to ask the reason for the arrest,

to

insist that the Mall security officers had no authority to do this,


to enquire where Steve had been taken, to demand to see a security
supervisor, and to demand to speak to a police officer.

Initially

these exchanges were relatively subdued, but upon being prevented


from entering a secured area where Steve had been escorted _by the
3

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/ .

securi.ty agents, and receiving no responses to his enquiries and


.

demands
loud.

that he considered satisfactory,

Mr.

Jones became very

Meanwhile he sent the children and Mr.

Griffin's niece,

Zakia, on to Camp Snoopy, an amusement park within the Mall which


had been their original destination.
8.

A Mall security supervisor, Captain Hunefeld, who had been

summoned at Mr.

Jones' s

request,

appeared on the

scene.

The

conversation continued with escalating volume, Mr. Jones continuing


to insist upon learning the whereabouts of his friend and upon
having access to the police.
9.

Mr. Jones, not yet having seen a police officer, walked

away toward an escalator, which he ascended to the next level, with


several security officers following.

(The evidence is conflicting

as to precisely how and where these persons were situated at this


point, and what, if anything, was said, but this is not crucial.)
10.

Leaving the escalator, Mr. Jones walked some distance,

then turned and came back toward the security officers,


encounter continued along the same lines.

and the

(There is also some

confusion as to precisely where these events took place, but that,


too, is not significant.)
11.

The

noise,

meanwhile,

shoppers, employees of the Mall,


working

over-time

operator who

duty,

caught

part

and
of

attracted

the

attention

of

two Bloomington police officers


television

the

events

reporter

on film,

and
which

camera
is

in

evidence.
12.

One of the guards asked Mr. Griffin, who was als9 a very
4

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..

large African-American man, what might be done to quiet Mr. Jones.


Mr. Griffin was unable to provide useful advice, saying he agreed
with Mr. Jones, who was an adult and not within his control in any
event.

Mr. Griffin, apparently apprehensive that he, too, might be

arrested, was not contentious.


13.

Mr. Hunefeld and Mr. Jones continued their dialogue (if

it can be called by that much-abused term), until Mr. Hunefeld told


Mr. Jones he must either be quiet or leave.

Mr. Jones continued

loudly to protest and to demand to see the police,

(Bloomington

police Lieutenant McCullough was a few feet in front of Mr. Jones,


immediately behind Mr. Hunefeld, at this point), and Mr. Hunefeld
told him he was under arrest.

As he said this, Mr. Hunefeld and

other security guards grasped Mr.


raised,

Jones's arm,

inadvertantly striking a Mall guard,

which Mr.

Jones

and then spun away

from the guards and Lieutenant McCullough, who had also told Mr.
Jones he was under arrest and attempted to control one of his arms.
14.

Mr. Jones was, after some difficulty, handcuffed (with

two of the devices to accommodate his size) .

As the group began to

walk toward a secured area Mr. Jones sat down abruptly, stood and
walked further,

then sat down again, swinging one of his legs to

avoid its being held by one of the guards.

(This, I find, was not

an attempt to strike anyone.)


15.

Mr. Jones was taken to the area of the Mall where the

security offices are situated adjacent to a Bloomington police substation.

He had calmed and become cooperative, and was released

without being charged.


5

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16.

The present accusations were made by formal complaint

about a week later.


CONCLUSIONS OF LAW
DISORDERLY CONDUCT

This

charge,

under Minn.

Stat.

609.72

subd.l

requires proof beyond a reasonable doubt that Mr.

Jones,

(1), (3),
having

reasonable grounds to know that it would, or would tend to, alarm,


anger or disturb others, engaged in either 1) brawling or fighting,
or 2) offensive, obscene, abusive, boisterous or noisy conduct, or
offensive, obscene or abusive language.
As to the first option -- brawling or fighting -- I find the
offense not proved.

These circumstances are very similar to those

in State v. Elmourabit, 356 N.W.2d 80 (Minn. App. 1984), affirmed


on other grounds, 373 N.W.2d 290

(Minn. 1985), where a defendant

arrested for drunken driving resisted when an ambulance attendant


attempted at a police officer's request to take a blood sample.

At this point appellant thrashed around; he


struck one attendant close to the groin area
and tried to kick the other attendant.
Officer Tripp said appellant was "physically
aggressive" at this time and would not calm
down.
Over his resistance, Elmourabit was
finally restrained by the two attendants and
three officers.
356 N.W.2d at 82.
Elmourabit

testified,

without

contradiction,

injured and in great pain and had not known what was

that

he

was

happe~ing

to

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him, or what he was doing at the time.

The Court, reversing his

conviction, said:
First, all of the evidence indicated the
conflict
with Elmourabit
commenced when
medical attendants acted on a police request
for a blood sample to be taken without
Elmourabit's consent.
Second,
as
already
noted,
only
the
defendant produced probative evidence on his
condition when put into an ambulance.
Thus,
the jury could only speculate whether a
willful offense occurred.
We conclude a
favorable view of
the
state's
evidence
indicates the absence of proof appellant
engaged in fighting or abuse proscribed by
Minn. Stat. 609.72.
356 N.W.2d at 84.
Mr. Jones also testified without contradiction that his hand
had been injured (earlier) and that that was why he raised it when
those arresting him first touched him.

He did not, of course,

claim an immediate injury impaired his ability to act or think, as


Elmourabi t
Jones' s

did.

concern

But in all the circumstances here,


for

his

friend,

his

perception of

given Mr.
a

lack of

responsiveness in the security officers, and his prior injuries,


and since the only conduct

that

could fairly be described as

"brawling" or "fighting" occurred after the physical contact was


made,

and even that was not shown to have been done with any

intention to injure another,


conduct was not proved.

I conclude this form of disorderly

See also State v. Revnolds, 243 Minn. 196,

66 N.W.2d 886 (1955).


Disorderly conduct under the other subsection requires proof
of either conduct or speech (or both) that amounts to "fighting
words."

In re S.L.J., 263 N.W.2d 412, 419 (1978), City v. Witucki,


7

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295 N.W.2d 243, 244-245 (Minn. 1980), Chaplinsky v. New Hampshire,


315 U.S.568,

572

(1942).

I~

S.L.J., supra,

a fourteen year old

girl yelled "fuck you pigs" at two police officers sitting in a


squad car from whom she was retreating.

The court held that

although this was offensive and caused resentment,

there was no

reasonable likelihood the offensive words "would tend to incite an


immediate breach of the peace or to provoke violent reaction by an
ordinary, reasonable person."

263 N.W.2d at 420.

In Witucki, by

contrast, the defendant was "directly insulting and intimidating an


innocent

person"

who

was

"physically

much

smaller

than

the

defendant," a bartender who was "essentially a captive audience -she had to tend the bar. "

Ibid.

The court affirmed Witucki's

conviction, even though no fighting actually ensued, saying:


The fact that the addressee and object of
the fighting words exercised responsible and
mature forbearance in not retaliating cannot
be relied upon by defendant
to escape
responsibility for his own actions.
A
defendant can be convicted for disorderly
conduct based on the utterance of fighting
words without the prosecution having to prove
that violence actually resulted. The focus is
properly on the nature of the words and the
circumstances in which they were spoken rather
than on the actual response.
The actual
response of the addressee or object of the
words is relevant, but not determinative, of
the issue of whether the utterances meet the
fighting words test.
295 N.W.2d at 246.

See also State v. Ackerman,

380 N.W.2d 922

(Minri. App. 1986), State v. Azzone, 287 Minn. 136, 177 N.W. 2d 559
(1997)
Korich,

(vulgar language at police station), and compare State v.


219 Minn.

268,

17 N.W.

2d 497

(1945)

(creation of mere

A-s0

"annoyance" is not enough) .


In the present case Mr. Jones, a large and animated and vocal
-.....

man, spoke and acted vehemently and aggressively in confronting (or


when confronted by) the Mall security officers, who were also in a
sense a "captive audience."
gestured assertively.

He was loud, deliberately so, and he

He was repeatedly insistent in denying the

Mall officers's authority, and demanding instead the presence of a


police officer.
the

Mall

(He apparently believed, quite erroneously, that

security

identification,
premises,
conduct.

officers

had

no

or to order persons

or to perform arrests
A private

person may

for

authority

to be quiet

to

request

or leave

the

trespassing or disorderly

arrest

for

public

offense

committed in his or her presence, including specifically breach of


the peace.

Minn. Stat.

629.30,

629.36,

629.37.

A person in

lawful possession of property, or his agent, may order an invited


guest to leave.

Minn. Stat.

609.605.)

There can be no doubt on this record that this was disorderly


conduct, practically indeed a paradigm of disorderly conduct. Any
reasonable person would have known (and Mr. Jones himself had some
experience
vociferous,
officers,

of

being

security guard)

unyielding,
whose

job,

of

and

that

insulting

course,

was

approach

(among

importantly) to maintain peace and quiet,


provoke retaliation.

such

strident, .

to

security

other

would be

things
likely

but
to

Indeed, if Mr. Jones's characterization of

their actions is correct, it did this; he said they tackled him;


but, as the Wictucki case established, the actual reaction need not
9

be proved;

restraint,

such as these officers showed,

is to be

commended, not penalized.


Mr. Jones was insistent throughout that these security guards
were not police officers, as of course they were not.
point,

too,

tends to prove too much,

But this

since they were therefore

private citizens and as such offended and provoked by his conduct;


that is,

the reluctance of the S.L.J. court to punish offensive

language toward police officers

(who are,

suppose, as part of

their job description, rightly or wrongly, expected to be able to


absorb an unusual degree of verbal and even physical abuse) , does
not apply.
demonstrates

In any event,
that

as I have said, on balance the record

the Mall

security personnel,

as well

as

the

Bloomington officers, acted with admirable restraint, patience and


forbearance.
The prosecution, therefore, proved the elements of disorderly
conduct under subdivision 3.
The defendant,

however,

also

argued in ef feet

violated the law it was justified and even necessary.

that

if he

He referred

to the Good Samaritan statute, Minn. Stat. 604A.Ol:

Subdivision 1. Duty to assist. A person at


the scene of an emergency who knows that
another person is exposed to or has suffered
grave physical harm shall, to the extent that
the person can do so without danger or peril
to self or others, give reasonable assistance
to the exposed person. Reasonable assistance
may include obtaining or attempting to obtain
aid from law enforcement or medical personnel.
A person who violates this subdivision is
guilty of a petty misdemeanor.
Subdivision 2 provides immunity from civil liability for any.one who

10

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obeys subdivision 1.
The petty misdemeanor provision is troublesome in many ways,
and

is

probably

unconstitutionally

vague

substantive due process as a criminal statute,


since it creates a petty misdemeanor).

and

denial

of

(or quasi-criminal,

That is not at issue here.

But the provision is pertinent because Mr. Jones's knowledge of it


bears upon his state of mind.

If he believed reasonably and in

good faith that the statute required him to act as he did, he could
not

be

doctrine

convicted because
of

estoppel,

the

or

state would be precluded by the

equitable

See

estoppel.

State

v.

Holmberg, 545 N.W.2d 65 (Minn. App. 1996), Raley v. Ohio, 360 U.S.
423 (1959), Cox v. Louisiana, 379 U.S. 559 (1965), State v. Liepke
403 N. W. 2d 252 (Minn. App. 1987).
This argument is not frivolous, for Minn. Stat. 604A.Ol does
appear not only to permit but to require intervention by bystanders
in emergencies.

The record demonstrates Mr. Jones' s experience and

concern with the failure of others to do this,

and there is no

reason to doubt the good faith of this belief.


however, poorly conceived though it is
provision) ,

cannot

have

been

The

statute,

(in its petty misdemeanor

intended to

create

license

to

violate the law.


In construing a statute, we must attempt to "ascertain and
effectuate the intention of the legislature.

11

Minn. Stat. 645 .16.

Where the application of statutory words to a situation is "not

i.....

clear and free from all ambiguity,

1.
2.

11

we must consider:

The occasion and necessity for the law;


The circumstances under which it was enacted;
ll

3.

4.
5.

6.
7.
8.

The mischief to be remedied;


The object to be attained;
The former law, if any, including other laws
upon the same or similar subjects;
The consequences of a particular
interpretation;
The contemporaneous legislative history; and
Legislative and administrative
interpretations of the statute.

Ibid.
Section 604A.Ol

(formerly 604.05)

is in a chapter entitled

(and obviously concerned with) "Actions Involving Negligence,


civil actions for injuries.

11

i.e.

It is quite obviously designed to

encourage people to offer assistance to injured persons without


fear of personal liability resulting from the effort.
primary purpose, necessity and object.

That is its

In its earlier forms

(as

originally enacted in 1971) it did not have the ill-advised petty


misdemeanor provision, which was apparently added (iri 1983)
misguided effort to give this incentive additional impetus.
refers to persons in distress,

in a
It

with whom the actor had no pre-

existing relationship giving rise to a duty of care.

Tiedeman by

Tiedeman v. Morgan, 435 N. W.2d 86 (Minn. App. 1989).

The statute

codifies

and supplements

the

common law obligation,

which was

summarized in the first Minnesota case on the point,

Depue v.

Flateau, 100 Minn. 299, 303, 111 N. W.1 (1907), as follows:


Whenever a person is placed in such a
position with regard to another that it is
obvious that, if he does not use due care in
his own c.onduct, he will cause injury to that
person, the duty at once arises to exercise
care commensurate with the situation in which
he thus finds himself, and with which he is
confronted, to avoid such danger.
Not long after the statute was enacted, the Minnesota

Supre~e

12

A-S7

Court said in Regan v. Stromberg, 285 N.W.2d 97, 100 (Minn. 1979)
Where one is in charge of another, or who
being under no duty to do so takes charge of
another, and who knows or in the exercise of
reasonable care should know that the physical
or mental condition of such person is such
that it is reasonably foreseeable that such
person would be exposed to injury, then the
person in charge must use reasonable care to
prevent such exposure.
The statute's language of course, is much narrower.

It refers

to a person "at the scene of an emergency" who "knows" that another


is exposed to or has suffered "grave physical harm," and requires
him

to

"give

reasonable

assistance,"

including

optionally

an

attempt to obtain the aid of law enforcement.


Now, even if this provision applied to the present situation,
Mr. Jones's reliance upon it founders for reversal reasons.
"Emergency" means,

(or near enough for present purposes),

"a

sudden, urgent, usually unforeseen occurrence requiring immediate


action."

Random House Dictionary of the English Language (1968).

Under the statute the emergency must import "grave physical harm,"
which means,
causing

some

(or near enough for present purposes), bodily injury


substantial

disfigurement,

temporary loss of function of an organ.


subds. 7,8,9.

fracture,

or at

See Minn. Stat.

least
609.02

In other words, the person must know or reasonably

apprehend that, without immediate intervention, the other person


has been or will almost certainly be gravely injured.

And, even if

such a fear is supported and therefore reasonably present, he may


(or must) give only "reasonable assistance," including notification
of law enforcement.
13

Mr.

Jones said he believed his

friend had been illegally

arrested (the record does not provide enough information to allow


me to evaluate this belief),

that he had been "kidnapped"

(this

conclusion was not reasonable; even if the arrest had been illegal,
it

was

not

and

"kidnapping"),

could

not

rationally

have

been

perceived

and that he might be beaten

(this

fear,

as

though

perhaps genuinely entertained by Mr. Jones, also was not reasonable


in the circumstances, since even if the persons taking his friend
into custody had been capable of or disposed toward such a crime
and

there

is

no

evidence

to

suggest

they

were

it

is

extraordinarily unlikely they would have done so, even in secret,


given the glare of publicity surrounding the Mall and the escort
policy).

But beyond all that, even if all Mr. Jones's fears had

been founded,

his

loud,

insulting,

antagonistic,

demanding and

persistent confrontation with the Mall security people was not


"reasonable assistance."

It was indeed calculated to have,

and

apparently did have, quite the opposite effect.


It should have been apparent to any reasonable person that
this approach would 1)

antagonize the security agents and make

them, if anything, less likely to help Mr. Jones or his friend, and
2) frighten and offend by-standers, and perhaps even cause violence
in the Mall corridor.
person in Mr.

It should have been apparent to a reasonable

Jones's position that even if all his fears were

rational and his desire to obtain police assistance justified, he


had only to go quietly to the nearest telephone and dial 911 to ask
for help and make the police report he insisted upon making.

14

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Mr.

Jones's

defense

here

is

perhaps

more

accurately

characterized as necessity, duress, or self-defense, all of which,


once raised,

must be disproved beyond a reasonable doubt.

See

State v. Housely, 322 N.W.2d 746 (Minn. 1982), State v. Auchampach,


540 N.W.2d 808

(Minn. 1995).

But all of these fail as well, for

essentially the same reasons I have already examined: each of them


requires,

in effect, that the actor has a reasonable belief that

there is no less drastic, lawful alternative to his action.


State v. Niska,

514 N.W.2d 260

(Minn. 1994).

See

Here the evidence

establishes beyond a reasonable doubt that Mr. Jones could, early


on and until he was

actually arrested,

have

1)

simply spoken

civilly with he Mall security agents and obtained the information


he sought,
~

defenses,

or 2)

called the police,

or 3)

both.

like the Good Samaritan law itself,

All of these

are intended to

encourage persons to make bad situations better, or prevent them


from getting worse.

Mr.

Jones's approach made a bad situation

worse, and would have been perceived by any reasonable person to


have that tendency.
distress for Mr.

(It undoutedly even caused difficulties and

Jones's children,

his friend Mr.

Griffin,

Mr.

Griffin's niece and her child.)


Mr.

Jones

interpreted

as

testified he
racial

was

reacting

discrimination,

in part

having

to

seen

what

he

caucasian

visitors be allowed to pass the security guards without having to


produce identification or escorts.
Urban Coalition,

Yusef Mgeni,

pre~ident

of the

highly experienced community leader who

is

knowledgeable about and concerned with relations among ethnic and


15

economic classes, testified that he believed the escort policy was


de facto if not purposely discriminatory and would in any case
adversely affect people of color and of low economic status; he
said,

indeed,

that representatives of the Mall had as much as

admitted this.

There is no reason to doubt the sincerity of either

Mr. Jones's or Mr. Mgeni's convictions in this regard.

No person

with even a modicum of ability to perceive the real world can doubt
that racism, often virulent, often subtle, continues to permeate
our society.

But other than Mr. Jones's perception here, there is

no evidence that any of the Mall security agents or the Bloomington


police officers held or acted upon any such detestable prejudices.
One of

the security guards

was African-American;

Mr.

Jones' s

friend, Mr. Griffin, and Mr. Griffin's niece were African-American,


and they were allowed to enter; surely Mr. Jones himself could have
proceeded into the Mall without identification or ado, had he not
begun this overheated confrontation.
Therefore, while it is very important not to belittle the
belief of a person of Mr. Jones's experience and race that he has
encountered bigotry, that belief, even if genuine, (even indeed if
supported by the evidence objectively viewed), does not in itself
justify what would otherwise be a violation of law.
that is, a defense.
act of

civil

It is not,

It may be honorable; it may morally justify an

disobedience,

and even be

admirable;

but

civil

disobedience is, by definition, an offense to the law, which must


be undertaken only by those who are willing to accept the legal
consequences that follow, for civil disobedience is self-sacrifice.
16

The inescapable implication of allowing subjective views such as


Mr. Jones's to foreclose his prosecution would,

of course,

ipso

facto create a similar license in others, including racists whose


views are opposite to his,

and often as genuinely

(if not as

admirably) held.
Therefore

the

prosecution

disorderly conduct,

has

proved

the

elements

of

and disproved the prof erred and any other

possible defenses, beyond a reasonable doubt.


Before proceeding to

the

other charges,

it

is proper

to

enquire whether, having convicted Mr. Jones of disorderly conduct,


it would violate the proscription against double jeopardy and Minn.
Stat.

609.035 to convict him of any other offense.

This depends

upon whether the actions of which he is accused were a single


course of conduct, with a single criminal objective, see State v.
Hawkins,

511 N.W.2d 9, 13,

(Minn. 1994), and whether one of the

offenses can be explained without reference to the others.


v.

Banks,

331 N.W.2d 491

(Minn.

1983).

State

There may be only one

adjudication of guilt arising from a single behavioral incident.


The

question

is

fairly

close.

The

alleged of fens es

all

occurred at about the same plaqe and time, and arose from a more or
less continuous and uninterrupted course of conduct, motivated it
appears by an indivisible state of mind.
N.W.2d 613, 622 (Minn. 1991).

See State v. O'Hagan, 474

The loud and disorderly conduct was

what gave rise to the order to be quiet or depart,

which led

immediately to the alleged trespassing, which led to the arrest,


which

led

to

the

resistance.

Moreover,
17

an

attempt

to

avoid

apprehension for one offense, if itself a crime, ordinarily merges


with the precedent offense.
290

(Minn.

1995),

See State v. Bookwalter, 541 N.W.2d

and dissent of Justice Coyne.

disorderly conduct,

of course,

And,

continued throughout,

here the

and was an

integral part of both the alleged resistance and the trespassing.


Despite all this, however, I shall consider the other offenses
to

see

whether,

apart

from

this

concern,

their

elements were

adequately proved.

TRESPASSING

Minn. Stat.

609.605 subd. 1 (b) (3) provides:

(b) A person is guilty of a misdemeanor if the


person intentionally: ....
(3) trespasses on the premises of another and,
without claim of right, refuses to depart from
the
premises
on
demand
of
the
lawful
possessor.
I conclude this offense was not proved, for several reasons,
which I shall mention only briefly.
First,

it is not clear (beyond a reasonable doubt)

that Mr.

Jones was not in fact attempting and intending to depart from the
premises, after first locating his children.
Second, the state must prove beyond a reasonable doubt that
Mr. Jones, at the time of the trespass, did not have a "claim of
right" to be and remain where he was.
745, 749-750,

State v. Brechon, 352 N. W. 2d

(Minn. 1984), says this:

Claim of right is a concept historically


central to defining the crime of trespass. In
State
v.
Quinnell,
we
noted
that
the
18

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legislature inserted the language to protect


an
innocent
trespasser
from
criminal
prosecution.
277 Minn. at 70-71, 152 N.W.2d
at 604.
If the defendant has a claim of
right, he lacks the criminal intent which is
the gravamen of the offense.
There is no
punishable act of trespass if the state cannot
show defendant was on the premises without a
claim of right.
See Hayes v. State, 13
Ga.App. 647, 79 S.E. 761 (1913), where the
court stated:
An act which, as related to the
true owner of land, might appear to
be trespass is not in fact a
trespass if the act is committed in
good faith by one who actually and
sincerely believes
that
he
is
authorized
(either
because
authorized by the true owner or
because he believes himself to be
the true owner) to do the act in
question.
In fact the burden rests
upon the State of proving the
absence of good faith on the part of
one accused of trespass, because the
act must generally be shown to be
willfully done;
and
under
the
particular paragraph upon which the
charge against the defendant in the
present case was based, it was
essential for the State to show that
the presence of the accused upon the
premises in question was "with no
bona fide claim or color of title,
and
without the consent of the
owner. 11

Id. at 649, 79 S.E. at 762-63 (emphasis


added). We approved this language in State v.
Hoyt, 304 N.W.2d at 891.

If
the
state presents
evidence
that
defendant has no claim of right, the burden
then shifts to the defendant who may offer
evidence of his reasonable belief that he has
a property right, such as that of an owner,
tenant, lessee, licensee or invitee.
See
Gaetano v. United States, 406 A.2d 1291, 1294
(D.C.1979). Subjective reasons not related to
19

.. : .

a claimed property right or permission are


irrelevant and immaterial to the issue of
claim of right.
As the Hoyt case, cited in Brechon, above, indicates, a good
faith belief, even if mistaken, may be a claim of right.

So here,

though Mr. Jones, an invitee initially, was mistaken and unfair in


his perception and characterization of the Mall agents and their
actions

and

authority,

reasonable doubt that,

the

evidence

does

not

show

beyond

at least for the brief time and in the

emotional circumstances while he remained on the property after


being told to leave, he did not have a claim of right within the
meaning

of

Brechon,

at

least

to

fetch

his

children

before

departing.
Therefore he is not guilty of trespassing.
It should perhaps be said that the Mall security agents would
have been quite entitled,

(and well-advised), to arrest Mr. Jones

for disorderly conduct even before or without ordering him to leave


the Mall.

This would have made the trespass question moot, since

he could not, of course, trespass after being arrested.

But the

security agents can hardly be faulted for offering him, once again,
the option of being quiet and remaining, or departing.

Obstructing Legal Process or Arrest


Minn. Stat.

609.50 provides, in pertinent part:

Subdivision
1.
Crime.
Whoever
intentionally does any of the following may be
sentenced as provided in subdivision 2: . . . .
(2) obstructs, resists, or interferes with a
peace officer while the officer is engaged in
the performance of official duties; ....
20

Subd. 2. Penalty.
A person convicted of
violating subdivision 1 may be sentenced as
follows: ....
(2) if the act was accompanied by force or
violence
or
the
threat
thereof,
to
imprisonment for not more than one year or to
payment of a fine of not more than $3,000, or
both; or
(3) in other cases to imprisonment for not more than
90 days or to payment of a fine of
not more than $700, or both.
Mr.

Jones

misdemeanor,

is

charged

however,

is a

with

the

gross

misdemeanor;

the

lesser-included offense and must be

considered as well.
I have concluded above that Mr. Jones was guilty of disorderly
conduct.

It follows that his arrest was legal, whether performed

by a police officer or a private citizen or both.

Even if it had

been illegal, however, Mr. Jones could be convicted of resisting or


obstructing.

State v. Bale, 267 N.W.2d 730, 732-33

(Minn.1978),

City v. Berg, 433 N.W.2d (Minn.1988), State v. Diedrich, 410 N.W.2d


20

(Minn.

App.

(Minn.1987).

1987),

State v.

Combs,

398 N.W.2d 563,

565 n.2

Therefore neither actual illegality of the arrest

nor Mr. Jones's belief it was illegal would defeat the prosecution.
I conclude Mr. Jones did not, however, within the meaning of
subdivision 2 (2), use "force or violence,
misdemeanor element was not proved.

11

and therefore that gross

(See my comments above on the

inferences I draw from the manner in which and the reasons Mr.
Jones moved his arms and legs in an arguably forceful or violent
way.)
The question remains whether he has been proven guilty of the
misdemeanor.

This requires proof beyond a reasonable doubt that


21

A-tah

Mr. Jones 1) intentionally, 2) obstructed, resisted or interfered,


with 3)

police officer,

4)

who was

performing his

official

duties:
The obstruction, resistance or interference must be more than
mere verbal opposition.

City of Houston v. Hill, -- U.S. --, 107

S.Ct. 2502, 96 L.Ed.2d 398(1987), State v. Krawsky, 426 N.W.2d 875


(Minn.

1988) .

The statute "is directed at a particular kind of

physical act, namely physically obstructing or interfering with an


officer," and requires proof of actions "substantially frustrating
or

hindering

the

officer

Krawsky, above, at 877.

in

the

performance

of

his

duties. "

This may include "fighting words."

Id.

I conclude this offense was not proved, for several reasons, which
I also mention only briefly:
First, I am not satisfied beyond a reasonable doubt that Mr.
Jones was aware that any police officer was involved in his arrest.
Captain McCullough and Officer Martin were there, in uniform, and
visible to Mr. Jones, but given the number of uniforms in the area
and

the

excitement

of

the

moment

cannot

be

confident

he

recognized who they were, even when Captain McCullough said he was
an officer.
Second, if Mr. Jones knew one or two officers were there, it
is not at all clear he was resisting them.

Indeed, his repeated

insistence on obtaining a police officer, together with his later


obedience to Captain McCullough's orders, tend rather strongly to
negate any intent to resist, obstruct or interfere with a police
officer.
22
--~ ....

A-1_o7

Third,

whether

such

intentional

resistance

as

was

proved

"substantially" frustrated or hindered one of the officers may be


open to question.

On balance,

I suppose it did; when Mr. Jones

spun away and struggled against the handcuffing he was obviously


very difficult to handle (as the video tape demonstrates)

Twice

sitting down after he was handcuffed was less troublesome, to me at


least,

since the handcuffs made him much less an apparent threat

than he appeared earlier.

We must use some restraint in treating

all recalcitrance and misbehavior by arrestees as a separate crime,


especially a gross misdemeanor,
arrestee is

it

seems

to me,

even when the

(as is so unfortunately often the case)

provocative or otherwise offensive.

insulting,

That said, however, I conclude

that the resistance here would be adequate, if the other elements


had been proved.

Therefore Mr. Jones is not guilty of obstructing or resisting


arrest, either as a misdemeanor or a gross misdemeanor.

IT IS SO ORDERED:
BY THE COURT:

Dated: August 5, 1997


Jack S. Nordby
Judge of Distri t Court
23

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