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Judge Enjoins Ferguson|Police’s ‘5 Second Rule’

ST. LOUIS (CN) - Police can no longer enforce the "five-second rule" on Ferguson protesters - threatening them with arrest for standing in one spot for more than five seconds, a federal judge ruled Monday.

Mustafa Abdullah, a program associate with the ACLU, sued St. Louis County et al. in a constitutional challenge to the rule, which police enforced during the Ferguson protests.

Police claimed the rule helped keep protests peaceful. They claimed troublemakers had more of an opportunity to incite violence and illegal acts with standing crowds.

But U.S. District Judge Catherine D. Perry on Monday issued a preliminary injunction barring police from enforcing the rule, finding that Abdullah was likely to succeed on the merits of the case.

"Plaintiff is likely to succeed on the merits of showing that the keep-moving policy violates due process in both ways," Perry wrote in a 25-page opinion. "Of course, in this situation there is no statute or ordinance being challenged. Rather, it is an unwritten policy, given to officers at their roll calls, instructing them to order people to keep moving whenever the officers thought it was appropriate to do so. Some officers told everyone to keep moving, so if plaintiff was unlucky enough to be standing in the vicinity of those officers, he would be told to move. Some officers told people they would be arrested if they did not move, but at least one officer told people that they had to keep moving but probably would not be arrested if they failed to comply. Some officers interpreted the policy to mean that people had to walk at a certain speed, others told people that they could not walk back and forth in a certain-sized area. Some officers applied it to members of the press, while others did not. Plaintiff and his other witnesses testified that they could not tell what would or would not be allowed at any given moment.

"The rule provided no notice to citizens of what conduct was unlawful, and its enforcement was entirely arbitrary and left to the unfettered discretion of the officers on the street. This policy 'necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.' See Kolender, 461 U.S. at 360 (brackets and quotation marks omitted). Like the gang loitering ordinance found unconstitutional in Chicago v. Morales, 527 U.S. 41 (1999), the keep-moving policy cannot meet constitutional standards for definiteness and clarity." (Parentheses in ruling.)

Perry said the injunction should not interfere with the police's ability to disperse unruly crowds.

"This injunction does not prevent defendants or other law enforcement agencies from using all lawful means to control crowds and protect against violence," Perry wrote. "Missouri's refusal to-disperse law is not restricted by this injunction. Where there is an unlawful assembly or riot, the police can order persons to disperse and can arrest those who do not. If a crowd is becoming unruly, the police may find it necessary to order the crowd to disperse - including persons who are not committing crimes or violent acts - and the police may also tell an unruly crowd to move to a different place. From time to time this may mean that citizens who are themselves peaceful but who are part of a crowd that is becoming violent must obey these orders or face arrest. This injunction merely prohibits that kind of directive to peaceful citizens who are committing no crimes, whether they are doing so singly or in a law-abiding group."

Protests have become a daily fixture in Ferguson, a St. Louis suburb, since Michael Brown was shot by police Officer Darren Wilson on Aug 9. Protesters are demanding Wilson's immediate arrest on criminal charges.

The ACLU praised Perry's ruling.

"Vague rules that are applied in a haphazard fashion tend to increase community tension," said Tony Rothert, legal director of the ACLU of Missouri. "Judge Perry's injunction is a huge win for peaceful protesters and those who believe in the rule of law."

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