Attorneys slam downtown mall pedestrian restrictions

Attorney Jeff Fogel. Photo by Eze Amos Attorney Jeff Fogel. Photo by Eze Amos

At the August 6 City Council meeting, public safety officials outlined precautions for the upcoming August 12 anniversary, including street closures and the shutdown of public pools. It wasn’t until two days later that the city announced pedestrian access to the eight-block or so Downtown Mall would be limited to two entry points.

Civil rights attorney Jeff Fogel is calling that tactic “beyond the pale” in an email to city officials.

“You’ve had all these public meetings and you pull it out at 3 o’clock two days before [enacting the closures]?” says Fogel. “It could be litigated and that’s why they pulled it out then.”

Restricting mall access to two points on Water Street—First Street and Second Street SE—”implicates the constitutional right to travel as well as the right to peaceably assemble,” says Fogel.

He also questions the state and city’s August 8 declaration of a state of emergency when officials have declined to answer questions about whether they have intelligence about a threat. Fogel cites a 4th U.S. Circuit Court of Appeals decision that says there must be a “factual basis for [the] decision and that the restrictions . . . imposed were necessary to maintain order.”

Says Fogel to city officials, “You have consistently refused to answer the question of the factual basis for this decision.”

John Whitehead, founder of the civil rights organization the Rutherford Institute, agrees that city should have “particular facts” and disclose those to the community before impinging citizens’ ability to move freely. He says he sees a lack of transparency in the shutdown.

“To me it looks like martial law,” says Whitehead. “It creates a police state.”

He adds, “It sends a message they can’t do their job unless they create a police state.”

Fogel also says the city’s lengthy list of prohibited items that could be swung or thrown—including nunchucks, swords and catapults—are from an ordinance that applies to events. “There is no permitted event,” he says. “I think for the city and state police, this may be a training exercise,” which he says is fine, except when citizen movement is restricted.

The most egregious aspect of the restrictions, says Fogel, is that with all the community meetings, Chief RaShall Brackney never mentioned that pedestrian access to the mall would be limited.

“You wonder why some people in our community distrust you,” writes Fogel. “You speak about openness and operate in private. You speak about taking community input when the only input you wanted was how to make more restrictions. There is no doubt that you knew about the pedestrian restrictions before your press conference but held back that information so there would be little time to criticize and no time to litigate. That smacks of deception, manipulation and lies. That’s why many people do not trust law enforcement and your actions have only reinforced those perceptions, which will linger for a long time.”

Responds city spokesman Brian Wheeler, “The city does not have a comment on this email from Mr. Fogel at this time.”

At an August 8 press conference, Brackney said, “The goal and a successful outcome for us is there is no violence in our community.”

“It’s heavy handed,” says Whitehead. “It says our constitution doesn’t matter.”

Updated 2:40pm with John Whitehead comments.