Green Bay seeks dismissal of lawsuit involving protesters
By Kevin Boneske
GREEN BAY – A law firm defending the city in a federal lawsuit filed by an attorney representing Black Lives Matter (BLM) protesters is seeking to have the suit dismissed.
The suit involves protestors who were arrested in early June 2020 for violating the city’s emergency curfew.
Attorney David Hassel accuses the city of selectively enforcing the curfew based on the content of protected speech critical of police.
The protests were held in the wake of George Floyd’s death May 25, 2020, when he was in police custody in Minneapolis.
The Wauwatosa-based Gunta Law Offices filed a response late last month to dispute the suit’s allegations the curfew ordinance was unconstitutionally vague, the curfew was selectively enforced in violation of the plaintiffs’ First Amendment rights, the plaintiffs have a viable Fourth Amendment claim of illegal seizure, the plaintiffs can prove procedural or substantive due process violations and there is evidence the curfew was enforced based on race.
Hassel said Green Bay enacted a curfew in early June 2020 from 9 p.m. to 6 a.m. for the stated purpose “to prohibit anybody from being out in public streets” during curfew hours, but the only people arrested for violating it were protesters.
“The city thus gave the police department unfettered discretion to decide what, in fact, violated the curfew,” he said.
The city’s response to the suit states the curfew order was “content-neutral,” because it only regulated the time and place public speech could occur.
“The curfew prohibited people from being out during those hours, regardless of the content of speech they were engaged in, and without consideration of the activities in which they were engaged, unless they involved a situation exempting them from the curfew,” the response said.
The response further stated the “secondary effect” of the curfew was to curtail “unlawful violence, such as setting fires in public structures, vandalism of personal property, intentional injury to police officers and firing guns in public places.”
“These activities are not constitutionally protected, and therefore the curfew’s purpose of addressing these unlawful acts is not an unconstitutional restriction on the individual actors,” the response said.
On the night of May 31, as protesting concluded in downtown Green Bay, Hassel said “certain actors unrelated to the peaceful protesters committed crimes of vandalism and theft in the same vicinity of the protests.”
“Those crimes were immediately and unfairly attributed to BLM,” he said.
The suit initially filed in December specifically named two plaintiffs – Gerardo Rodriguez, an Allouez resident, and Manali Oleksy, a Green Bay resident, both of whom were arrested in early June 2020 – and also made reference to “all others similarly situated.”
In addition to seeking a court order declaring the curfew unconstitutional, the suit also seeks an injunction barring further prosecution under the curfew and orders reversing all judgments of conviction and pleas of guilty or no contest, as well as expunging arrest records.
Other relief sought includes awarding damages for the plaintiffs, prejudgment interest and attorney fees with a jury trial sought on all triable issues.
The city’s response seeks dismissal of all the plaintiffs’ claims against the city, with prejudice and costs.
Hassel said he doesn’t expect the motion to dismiss the suit will be successful, and he will file a response to it.
Prior to filing the federal suit in the Eastern District of Wisconsin, Hassel sent a letter Sept. 2, 2020, to Green Bay Mayor Eric Genrich, City Attorney Vanessa Chavez and Brown County District Attorney David Lasee, saying the curfew was “unconstitutional as designed and as enforced.”
“I’m disappointed that the city made us file a federal lawsuit to get them to take this seriously,” he said. “All we have wanted since we started working on this in June (2020) was for the city to recognize what it did in using the police to shut down protests about the need for change in how the police interact with our Black and non-white communities.”