ST. LOUIS • A crowd-control tactic designed to enforce curfew during the most volatile nights of the Ferguson protests was applied in the most calm of daytime situations by mistake, St. Louis County Police Chief Jon Belmar testified in federal court Monday.
He was one of several witnesses called during a day-long hearing, in which the ACLU asked a judge to put an end to a “keep moving” rule that police began enforcing on Aug. 18 along West Florissant Avenue in Ferguson.
Some activists are calling it the “five-second rule” — referring to how police would give them five seconds to move or face arrest.
Among those who took the stand Monday were a legal observer who said he was threatened with jail after stopping to take information from a handcuffed protester, and an ACLU worker who said he was told he would be arrested after pausing to pray.
The defendants in the suit are St. Louis County and Ronald Replogle, superintendent of the Missouri Highway Patrol. U.S. District Judge Catherine Perry did not issue an immediate ruling Monday.
Belmar, at his turn on the stand, said he only learned of the peaceful protesters’ accounts after the ACLU filed its court action seeking a permanent injunction Aug. 18.
He called it a “shortfall” due to miscommunication over orders.
“There were pass-ons that confused the officers,” he said. “We understand that now but I didn’t understand it then.”
Belmar said after Gov. Jay Nixon declared a state of emergency on Aug. 16, there was a question of how to enforce the corresponding curfew.
Belmar said he was informed by the state highway patrol that officers would be using the “failure to disperse” charge — which makes it a class C misdemeanor “if, being present at the scene of an unlawful assembly, or at the scene of a riot, (someone) knowingly fails or refuses to obey the lawful command of a law enforcement officer to depart from the scene of such unlawful assembly or riot.”
He added that each night during the worst of the unrest, police were facing riots and looting and ever-changing dynamics. He said officers were instructed to keep people moving to prevent crime from bubbling up within stagnant groups, as they had seen occur during some of the more violent exchanges between police and protesters.
Officers were told to use their discretion and to err on the side of allowing peaceful protests, he said. But somewhere along the line, the message became mixed.
“I don’t think we were clear enough as commanders … to tell (officers) if there’s a different dynamic — there’s not a problem — don’t worry about it,” he said.
Belmar declined to call the strategy a command — referring to it instead as a “theory” and “tactic.”
“The issue is with the discretion of how each officer applied it,” he said.
The ACLU witnesses said the police orders appeared to be arbitrary, targeting African-Americans and those who angered individual officers. They said it stifled their free speech and made them fear they would be arrested for making the wrong move.
Mustafa Abdullah, an ACLU employee and the plaintiff in its court action, said after being threatened for praying, then for pacing back and forth with a reporter, he finally left.
“I had been threatened with arrest five times in an hour,” he said.
Another witness, Joanna Holbrook, said she attended the protests just to be a part of the experience. She said she was told to “keep walking or you’ll go to jail” six times in seven hours. She said there were reporters who wanted to hear her story, and one sobbing woman whom she wanted to console, but “it’s hard to do when you’re being herded around.”
“I just felt a little bullied,” she said.
Deray McKesson, an employee with Minneapolis Public Schools who came in for the protests, said he saw one person arrested who “was just standing still” and being quiet.
Joel Reinstein, who was at the protests as a legal observer, said when he stopped to get the name of a man who was being arrested, he was also threatened with jail.
“It seemed like it was enforced if you were doing something police didn’t like,” he said.
Officials at one point sent out a press release referring to a free-assembly zone on the south end of West Florissant, where protesters could lawfully congregate. Several of the witnesses said they were never told of the zone, and police officers didn’t appear to know of it either.
One woman who testified, Johnetta Elzie, said she was threatened with arrest unless she kept moving as recently as last Saturday by Ferguson police. The ACLU played a video she recorded of the exchange. In it, an unidentified Ferguson officer who was asked about the free-assembly zone responded, “There is no free-assembly zone. This is all a free-assembly zone. It’s the U.S. Constitution.”
Elzie testified that as the officer was saying that, he was forcing her to keep walking.