STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT
Case Type: Property Damage

MOAC Mall Holdings, LLC,
d/b/a Mall of America,
Plaintiff,
v.
Black Lives Matter Minneapolis, Miski
Noor, Michael McDowell, Lena Gardner,
Kandace Montgomery, John Doe 1, John
Doe 2, John Doe 3, and John Doe 4,
Defendants.

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Court File No.:______________________

MEMORANDUM IN SUPPORT OF
PLAINTIFF’S MOTION FOR
TEMPORARY RESTRAINING ORDER

INTRODUCTION
Mall of America, as a private property owner, prohibits all forms of protest and
demonstration on its premises. It enforces this policy without regard to the content of the
proposed demonstration for the safety and comfort of its guests and the protection of its tenants
and their employees. Mall of America’s right to exclude demonstrators from its private property
has been confirmed unequivocally by the U.S. Supreme Court and the Minnesota Supreme
Court. Only weeks ago, Hennepin County District Court Chief Judge Peter Cahill ruled
decisively that demonstrators, specifically including members of Black Lives Matter, do not have
any First Amendment rights to demonstrate at Mall of America’s private property without Mall
of America’s authorization.
Now, for the third time in a thirteen month period, Black Lives Matter Minneapolis
(“BLM”) has announced its intention to hold a demonstration at Mall of America. Mall of
America has clearly informed BLM and its leaders that the planned demonstration is
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unauthorized and unlawful, and that any demonstrators will be trespassing and subject to
removal and potential arrest. BLM and its leaders know that they have no legal right to
demonstrate at Mall of America, based on Judge Cahill’s recent order. However, BLM and its
leaders refuse to consider locating the demonstration at a public site where their First
Amendment rights to free expression guarantee them the right to demonstrate. Instead, BLM
insists that it will hold the demonstration at Mall of America, despite unequivocal direction from
Mall of America and this Court that it is not allowed to do so.
Mall of America supports BLM’s First Amendment right to free expression, but courts
have clearly ruled that right may not be exercised on private property without the consent of the
property owner. To protect Mall of America’s guests, tenants, and employees, this consent has
not been given, and if BLM holds its demonstration at Mall of America despite the lack of
consent, Mall of America will suffer irreparable harm. Because Mall of America’s own
instruction, the prior ruling of this Court, and even the threat of criminal prosecution has not
been sufficient to convince BLM and its leaders to comply with Minnesota’s laws protecting
private property rights, Mall of America asks this Court to issue a temporary injunction
prohibiting BLM, its leaders, and anyone acting in concert with them from demonstrating at Mall
of America while this lawsuit is pending.
FACTUAL BACKGROUND
Mall of America owns and operates a private, 4.2 million square foot commercial retail
and entertainment complex with more than 520 stores, 50 restaurants, and a seven-acre
amusement park located at 60 E Broadway, Bloomington, Minn. (“MOA Premises”). (Verified
Complaint ¶ 9.) As a private retail center, Mall of America “prohibits all forms of protest,

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demonstration, public debate and speech aimed at organizing political or social groups” at MOA
Premises. (See MOA Promotional Events Handbook, p. 9, Ex. 3 to Verified Complaint.)
Black Lives Matter Minneapolis (“BLM”) is a Minneapolis-based chapter of an activist
movement that campaigns against violence toward people of color, with a particular focus on
violence by law enforcement officers and racial injustice in the criminal justice system. BLM
organizers have stated that their movement is decentralized, and that no one person leads the
Minneapolis chapter. (Verified Complaint, Ex. 2.) Instead, BLM is governed by eight leaders,
including Michael McDowell, Lena Gardner, Kandace Montgomery, Miski Noor, and four more
individuals whose identities currently are unknown to Mall of America. (Verified Complaint,
Exs. 1 and 2.)
A.

December 20, 2014 Demonstration
In December 2014, Mall of America personnel learned that BLM intended to hold a

demonstration at MOA Premises on December 20, 2014, one of the busiest shopping days of the
entire year. (Verified Complaint ¶ 11.) In an attempt to obtain compliance with its policy
against demonstrations of all kinds, on December 12, 2014, MOA management sent a letter to
several leaders of BLM, including Defendant Michael McDowell. The December 12, 2014 letter
informed BLM demonstration organizers that MOA: (1) is a private commercial retail center; (2)
prohibits “all forms of protest, demonstration and public debate,” “including political activity
aimed at organizing political or social groups”; and (3) has consistently enforced that policy over
the years. (Verified Complaint, Ex. 4.) The letter also stated that any attempt to conduct an
unauthorized protest at MOA Premises would subject demonstrators to removal from MOA
Premises and potential arrest by the Bloomington Police Department. (Id.)

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Despite this letter and multiple attempts by various officials to redirect the demonstration,
on December 20, 2014, the BLM demonstration went forward at MOA Premises. Approximately
1,000 to 1,500 people attended the demonstration, including both Montgomery and McDowell.
(Verified Complaint, Ex. 5.) Attendees of the demonstration were informed that they were
trespassing and were escorted off MOA Premises. A number of demonstrators were arrested and
charged with trespass when they would not leave in response to directions. Criminal trespassing
charges remain pending against a number of demonstrators. (Verified Complaint, Ex. 5.)
The December 20, 2014 demonstration caused irreparable harm to Mall of America, its
tenants, and their employees in a number of ways. First, the demonstration interfered with Mall
of America’s rights to its property and to control activities on its property, and with its right and
ability to conduct its business. (Verified Complaint ¶ 15.) Next, Mall of America, and many of
its retailers and other tenants saw reduced numbers of guests and reduced sales numbers because
a portion of the mall was forced to close during the demonstration. Traffic counts for the number
of cars entering Mall of America’s ramps showed that the number of vehicles entering on
December 20, 2014 was down approximately 15 percent compared to statistics for the previous
five years for the Saturday before Christmas—which translates into an estimated 24,000 guests
who did not visit Mall of America on that date. This affected Mall of America’s tenants—for
example, a number of retailers reported double digit losses in sales, and a family attraction
reported that its attendance dropped 50 percent on the day of the demonstration. The sales lost to
Mall of America and its tenants are difficult, if not impossible, to quantify. (Verified Complaint
¶ 16.) In addition, the demonstration and the partial shutdown of Mall of America necessitated
by the demonstration caused an incalculable loss to Mall of America’s goodwill with its guests.
(Verified Complaint ¶ 17.) Finally, the more than 15,000 people employed by Mall of America

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and its tenants were negatively affected, as many of those employees depend upon commissions,
tips, or bonuses that were reduced due to the reduction in traffic and the shutdown of many stores
in the mall due to the demonstration. (Verified Complaint ¶ 18.)
B.

July 25, 2015 Demonstration
Despite being informed in no uncertain terms that Mall of America did not allow

demonstrations, BLM supporters held a second demonstration at MOA on July 25, 2015. On
that date, more than forty people held another unauthorized demonstration at MOA Premises on
behalf of Black Lives Matter Minneapolis. (Verified Complaint, Ex. 6.) BLM specifically
promoted this demonstration on its website as “show[ing] support for the Black Lives Matter
movement.” (Id.) Mall of America did not give permission for this demonstration to be held, as
it violated Mall of America policy. (Verified Complaint ¶ 19.)
C.

December 23, 2015 Demonstration
Now, BLM has announced that it intends to hold a third demonstration, entitled

#BlackXmas2: #Justice4Jamar, at Mall of America’s East Rotunda on December 23, 2015 at 1
p.m. (Verified Complaint, Ex. 7.) The demonstration was announced on BLM’s Facebook page
and through its Twitter account on December 17, 2015. BLM’s Facebook page encourages
people who want to attend the demonstration to join a text group in order to get updates about the
event. (Id.) More than 300 people, including Noor, McDowell, and Montgomery, have already
indicated that they intend to attend the demonstration, and more than 4,400 have been invited to
attend. (Id.)
The day after the demonstration was announced, Mall of America management wrote to
BLM leaders, including Noor, McDowell, Montgomery, and Gardner, stating that MOA
Premises are private property and prohibiting the demonstration on MOA Premises. (Verified

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Complaint, Ex. 8.) Mall of America Management informed BLM leaders that anyone
demonstrating at MOA Premises would be trespassing and would be removed from the property.
(Id.) BLM acknowledged on its Facebook page that the demonstration was not authorized by
Mall of America, and that Mall of America was attempting to “shut down” the protest, but it
indicated clearly that it intended to move forward with the demonstration. (Verified Complaint,
Ex. 7.) If the BlackXmas2 demonstration is allowed to proceed, Mall of America, its tenants,
and their employees, will again experience interference with their property rights, their right and
ability to conduct their business, a loss of guests, lost sales, loss of goodwill, and loss of earnings
in amounts that are difficult, if not impossible, to compute. (Verified Complaint, ¶ 25.)
D.

Judge Cahill’s November 10, 2015 Order
Importantly, in November 2015, just weeks before the announcement of the third

demonstration, the Hennepin County District Court Chief Judge Peter Cahill expressly confirmed
Mall of America’s right to prohibit demonstrations by organizations like BLM on its private
property. In ruling on motions to dismiss various criminal charges brought against participants
in the December 2014 demonstration, Judge Cahill concluded that MOA is private property, not
a public forum, and that the BLM demonstrators did not have a right to engage in demonstrations
at MOA Premises. The Court ruled that “no citizen and no group possesses a constitutional right
under either the United State or Minnesota Constitution to conduct political demonstrations at
the MOA over the express objection of MOA ownership and management.” (Verified
Complaint, Ex. 5, p. 126.)
In addition, Judge Cahill recognized that Mall of America had the ability to seek an
injunction in advance of the December 20, 2014 demonstration. As stated in his order, “[I]n
appropriate circumstances, a private property owner may seek injunctive relief from a court in

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equity to enjoin unauthorized activities on its property by others.” (Id. p. 16.) Judge Cahill
suggested that MOA should have applied for an injunction upon learning of the planned protest,
stating, “Here, MOA officials knew some of the BLM protest organizers (including some of the
defendants in these cases) in the week leading up to the demonstration. Although officials from
the MOA, the BPD, and the Bloomington City Attorney’s Office informed some of the
defendants that the MOA is private property and that MOA management would not grant BLM
permission for the planned demonstration at the MOA, the MOA did not seek to enjoin the BLM
demonstration.” In accordance with Judge Cahill’s suggestion, upon learning of another planned
demonstration at MOA Premises, Mall of America now applies for a temporary restraining order
prohibiting BLM members from demonstrating on MOA Premises for the pendency of this
litigation in order to prevent irreparable harm to Mall of America.
ARGUMENT
To obtain a temporary restraining order, the moving party must show that “immediate
and irreparable injury, loss or damage” will result to the movant if the TRO is not granted.
Minn. R. Civ. P. 65.01; see also Miller v. Foley, 317 N.W.2d 710, 712 (Minn. 1982); Paradata
of Minn., Inc. v. Fox, 356 N.W.2d 852, 854 (Minn. Ct. App. 1984) (citing Cramond v. AFL-CIO,
126 N.W.2d 252, 256-57 (Minn. 1964)). The purpose of a temporary restraining order “is to
preserve the status quo until opportunity is afforded to decide the matter on the merits.” Prolife
Minn. v. Minn. Pro-Life Comm., 632 N.W.2d 748, 753 (Minn. Ct. App. 2001) (quoting Crosby v.
Crosby, 587 N.W.2d 292, 297 (Minn. Ct. App. 1998)). Parties to a lawsuit, their officers, agents,
servants, employees, and attorneys, and anyone in active concert or participation with them who
receive actual notice of the order will be bound by the temporary restraining order. Minn. R.

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Civ. P. 65.04; see State ex rel. Swanson v. Integrity Advance, LLC, 846 N.W.2d 435, 443 (Minn.
Ct. App. 2014),
The factors applied in determining whether a temporary restraining order should be
granted are set forth in the seminal case of Dahlberg Bros., Inc. v. Ford Motor Co., 137 N.W.2d
314, 321-22 (Minn. 1965). Those factors are:
1.

The nature and background of the relationship between the parties
preexisting the dispute giving rise to the request for relief;

2.

The harm to be suffered by the moving party if the temporary restraining
order is denied as compared to that inflicted on the nonmoving party if the
injunction is granted;

3.

The likelihood that the moving party will prevail on the merits;

4.

The public policy interests; and

5.

Administrative burdens imposed on the court in supervising and enforcing
the temporary decree.

See Edin v. Josten's, Inc., 343 N.W.2d 691, 693 (Minn. Ct. App. 1984). In this case, all five
factors weigh in favor of issuing a temporary restraining order prohibiting BLM from
demonstrating at the MOA Premises while this case is pending.
A.

Mall of America is Likely to Succeed on the Merits of its Trespass Claim Against
Defendants.
First, and critically, Mall of America is extremely likely to succeed on its trespass claim

against Defendants. To prove a claim for the civil tort of trespass, a plaintiff must establish that
it has the “right of possession” to the land at issue and that there is a “wrongful and unlawful
entry upon such possession by defendant.” Johnson v. Paynesville Farmers Union Co-op. Oil
Co., 817 N.W.2d 693, 701 (Minn. 2012); All Am. Foods, Inc. v. Cnty. of Aitkin, 266 N.W.2d 704,
705 (Minn.1978). The plaintiff need not establish damages, as a trespasser is liable for nominal

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damages even in the absence of actual damages. Johnson, 817 N.W.2d at 701. In addition,
reasonableness on the part of the defendant is not a defense to trespass liability. Id.
In this case, there is no dispute that Mall of America owns the MOA Premises. (Verified
Complaint ¶ 9.) Nor is there any doubt that BLM members have twice previously—on
December 20, 2014 and July 25, 2015—entered upon the MOA Premises and conducted
unauthorized demonstrations without permission of Mall of America and in violation of Mall of
America’s policies, which prohibit all forms of protest, demonstration, public debate and speech
aimed at organizing political or social groups. (Id. ¶¶ 13, 14, 19.) The December 20, 2014
demonstration, which was attended by 1,000 to 1,500 people including Montgomery and
McDowell, was held in direct contravention of Mall of America’s notice to BLM organizers that
the protest was unauthorized and that demonstrators would be removed from the MOA Premises.
(Id. ¶¶ 13, 14.) Attendees at that demonstration were escorted off the MOA Premises, a number
were charged with criminal trespass, and charges remain pending against a number of attendees.1
(Id. ¶ 14.) Even after that demonstration, and the extremely clear message from Mall of America
that such demonstrations were not authorized and would not be allowed, forty people held
another unauthorized demonstration at the MOA Premises on behalf of BLM. (Id. ¶ 19.) BLM
publicized this unlawful demonstration on its own Facebook page as supporting Black Lives
Matter. (Id. Ex. 6.)
Now, Defendants are organizing yet another trespass by hundreds—or possibly
thousands—of people. Defendants have been expressly informed that the BlackXmas2
demonstration planned for December 23, 2015 at the MOA Premises is unauthorized and
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Notably, the standards for civil and criminal trespass are different, and a defendant need not be
charged with or convicted of criminal trespass in order to be liable for civil trespass. See Korstan
v. Poor Richards, Inc., 188 N.W. 2d 415 (Minn. 1971).
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prohibited, and that anyone attending the demonstration will be trespassing and will removed
from the property. (Id. Ex. 8.) Defendants themselves have acknowledged that the
demonstration is not authorized by Mall of America, and that Mall of America is attempting to
“shut down” the demonstration. (Id. Ex. 7.) Yet Defendants have announced their intention to
hold the demonstration anyway, entirely ignoring Mall of America’s rights as a private property
owner to control access to and activities on its own property. (Id.)
Defendants’ First Amendment rights to free expression do not provide justification for
their trespass or entitle Defendants to demonstrate at the MOA Premises over the objections of
Mall of America. The argument that a privately held shopping mall qualifies as public space
where free expression rights may be exercised has been rejected by the United States Supreme
Court, the Minnesota Supreme Court, and only last month by this Court with specific reference
to the BLM protest at the MOA Premises in December 2014.
First, the U.S. Supreme Court has held multiple times that the First Amendment does not
limit private property owners’ ability to prohibit political or social group protesters from
demonstrating on the premises of privately-owned shopping malls. Lloyd Corp. v. Tanner, 407
U.S. 551, 564 (1972) (holding that even though a mall was open to the public, the First
Amendment did not prohibit the mall’s private owners from enforcing their policy against
protesting at the mall for any purpose or cause); Hudgens v. NLRB, 424 U.S. 507, 518 (1976)
(holding owner of a privately-owned mall could threaten to arrest and charge demonstrating
employees with criminal trespass for peaceful picketing in front of their employer’s store). With
respect to Mall of America, the Minnesota Supreme Court has held that the MOA Premises
specifically are private property, not a public forum, and there is no constitutionally protected
right under either the federal or Minnesota state constitutions to engage in protests at MOA

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Premises. State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999). The Court concluded that
although MOA Premises are open to the public, the license extended by MOA to members of the
public to enter mall property is a limited license only to come to the mall while shopping, dining,
or otherwise being entertained, and that license is revocable at will by MOA management.
Wicklund, 589 N.W.2d at 802.
Drawing from this binding precedent, Hennepin County District Court Chief Judge Peter
Cahill ruled on November 10, 2015 that the persons arrested at the December 2014 BLM
demonstration at the MOA Premises did not have a constitutionally-protected right to
demonstrate at the property. (Verified Complaint, Ex. 5, p. 46.) As Judge Cahill concluded,
“[N]o citizen and no group possesses a constitutional right under either the United State or
Minnesota Constitution to conduct political demonstrations at the MOA over the express
objection of MOA ownership and management.” (Id., p. 126.) With this defense foreclosed to
them, Defendants have no possible justification for their past and future wrongful and unlawful
trespasses on Mall of America’s property. Accordingly, as Mall of America is likely to succeed
on the merits of its claims, it is entitled to a temporary restraining order protecting its property
while this litigation moves forward.
B.

Mall of America Will Suffer Irreparable Harm if a Temporary Restraining Order is
Not Granted.
Next, Mall of America is entitled to injunctive relief because it will suffer irreparable

harm if the temporary restraining order is not granted, while Defendants will suffer no harm if
they are required to move their planned December 23, 2015 demonstration to an alternative
public site. Minnesota courts have found that an injunction prohibiting a future trespass is an
appropriate remedy when a landowner will suffer irreparable harm from a threatened trespass
because the damages are not readily capable of evaluation and a number of lawsuits for damages
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would be required to compensate the landowner for each successive injury. See Theros v.
Phillips, 256 N.W.2d 852, 859-60 (Minn. 1977). As stated by the Minnesota Supreme Court, “It
is elementary that equity will grant [injunctive] relief to prevent a threatened trespass, especially
where there can be no adequate pecuniary compensation, because it would be difficult or
impossible to ascertain the damage resulting from such an act, and where otherwise a
multiplicity of suits cannot be prevented.” Whittaker v. Stangvick, 100 Minn. 386, 391-92, 111
N.W. 295, 297 (1907); see Draheim v. Fell, 153 N.W. 513, 513 (1915) (finding injunction was a
proper remedy for trespass when the defendant admitted he had trespassed and on the stand
asserted his determination to again enter upon the land and build a fence enclosing the property
as his own).
Mall of America will undoubtedly suffer irreparable harm without a temporary
restraining order, as Defendants have very clearly stated their intention to hold an unlawful
demonstration at the MOA Premises on December 23, 2015—long before this matter will be
resolved and any permanent injunction may be issued. First, the demonstration will interfere
with Mall of America’s right to control its own property and to conduct its business. (Verified
Complaint ¶ 15.) See Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 640 (Iowa
1991) (finding injunction was appropriate when trespass interfered with plaintiff’s right and
ability to conduct its business). In addition, if the demonstration is allowed to go forward on one
of the busiest shopping days of the year, Mall of America is certain to lose guests who would
otherwise have visited the mall. (See Verified Complaint, ¶ 16.) During the December 2014
demonstration, Mall of America was forced to close down stores in the vicinity of the
demonstration and require all guests in the demonstration area—whether or not they were
participating in the demonstration—to leave the MOA Premises. Traffic counts for the date of

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the December 2014 demonstration indicate that the number of vehicles entering Mall of America
parking lots on the date of the demonstration was down approximately 15 percent. The value of
the lost sales to all of Mall of America’s tenants is difficult, if not impossible, to quantify. (Id.)
In addition to these lost sales, the more than 15,000 people employed by Mall of America and its
tenants will be negatively affected by a the loss of sales at the mall, as many of the employees
depend upon commissions, tips, or bonuses that will be reduced due to the demonstration. (Id. ¶
18.)
Even harder to calculate is the loss of goodwill that Mall of America will incur—from
guests who refuse to visit Mall of America altogether in order to avoid the demonstration and
from guests who are unable to shop or patronize other mall tenants because of the demonstration.
See Planned Parenthood of Mid-Iowa, 478 N.W.2d at 640 (finding injunction was appropriate
when trespass interfered with plaintiff’s right and ability to conduct its business); Medtronic, Inc.
Advanced Bionics Corp., 630 N.W. 2d 438, 453 (Minn. Ct. App. 2001) (temporary injunction
granted based on significant risk of irreparable injury due to loss of goodwill).
In addition, to even attempt to recover damages, Mall of America would have to bring
lawsuits against an immense number—hundreds, or possibly more than a thousand—trespassers.
Then, it would be required to repeat the entire process whenever BLM decided to hold a future
demonstration at the MOA Premises. This would be incredibly burdensome for Mall of America
and the courts, when a single injunction could resolve this issue much more effectively. See
Theros, 256 N.W.2d at 859-60. Other attempts by multiple actors to convince Defendants to
comply with the trespass laws—Mall of America’s repeated notifications about its policies,
criminal prosecutions by the City of Bloomington, and the pronouncement of this Court that
Defendants have no First Amendment right to demonstrate at the property—apparently have had

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no effect on Defendants’ behavior. See Planned Parenthood, 478 N.W.2d at 640 (injunction was
appropriate when previous arrests were insufficient to deter defendant from continued
trespasses). Under these circumstances, Mall of America will suffer irreparable harm, which
cannot be addressed through money damages at the end of this lawsuit, if Defendants are allowed
to move forward with their planned demonstration at the MOA Premises on December 23, 2015.
By comparison, Defendants will suffer no harm if they are not allowed to demonstrate at
the MOA Premises next week. Defendants may hold a lawful demonstration, exercise their First
Amendment rights to free expression, and spread their message at any number of public places.
As they have no right to hold a demonstration on private property, the fact that Defendants are
not allowed to demonstrate at the MOA Premises cannot be considered an injury. For these
reasons, a temporary restraining order is the appropriate remedy for Defendants’ threatened
trespass in this case.
C.

The Nature of the Relationship Between the Parties Supports the Issuance of a
Temporary Restraining Order.
Next, the parties’ relationship also weighs in favor of Mall of America’s requested

temporary restraining order, as Mall of America has attempted to work with Defendants to
resolve this dispute but has been unable to convince Defendants to comply with the law without
a court order. Before the December 2014 demonstration, Mall of America management
corresponded with Defendants, even offering an alternative, public site for the planned protest,
but Defendants refused to respect Mall of America’s rights as a private property owner.
(Verified Complaint, Ex. 4.) Now, Mall of America has again informed Defendants that the
planned BlackXmas2 demonstration is unauthorized and will constitute a trespass, but
Defendants have reacted with defiance, asserting that Mall of America will not be able to shut
down the protest. (Id. Ex. 7, 8.) Even prosecutions for a number of criminal offenses following
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the December 2014 demonstration and the determination of this Court that Defendants have no
right to demonstrate on Mall of America’s private property have not provided a deterrent to
Defendants. (Id. Ex. 5, at 126.) Clearly, only a direct order from this Court prohibiting the
demonstration has any chance of convincing Defendants that they must comply with the law and
refrain from trespassing on Mall of America’s property. Accordingly, this factor weighs in favor
of a temporary restraining order.
D.

Public Policy Considerations Support the Issuance of a Temporary Restraining
Order.
Public policy considerations also weigh in favor of a temporary restraining order

prohibiting Defendants’ demonstrations at MOA Premises while this lawsuit moves forward.
First, public policy supports enforcing private owners’ property rights, including the right to
exclude others from the property and to control the activities on the property. See Kaiser Aetna
v. United States, 444 U.S. 164, 179–80, 100 S.Ct. 383, 392–93, 62 L.Ed.2d 332 (1979). In
addition, public policy supports providing for the protection, safety, and comfort of all guests
lawfully visiting Mall of America on one of the busiest shopping days of the year. Chief Judge
Cahill recognized the legitimacy of this concern with respect to the possibility of future protests,
as he stated in his order: “While, fortunately, the large-scale BLM demonstration at the MOA did
not erupt in violence, rioting, physical injury, or destruction to mall property, the specter of such
possible outcomes remains a legitimate (and omnipresent) concern for MOA ownership and
management and law enforcement personnel in the City of Bloomington.” (Verified Complaint,
Ex. 5, p. 130.)
Defendants likely will argue that public policy considerations weigh in favor of allowing
them to demonstrate and spread their message regarding violence and discrimination against
people of color. However, no provision of the federal or state constitution grants the Defendants
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a right to enter the private property of another without permission for the purposes of speech. See
Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040–41, 64 L.Ed.2d
741 (1980); Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131
(1972); Wicklund, 589 N.W.2d at 802. Defendants’ legitimate and lawful opportunities to spread
their message would not be limited by the temporary restraining order. Defendants still would be
allowed to hold their demonstration and exercise their rights to free expression at any public
place where such a demonstration would be legal. Accordingly, public policy considerations
also support the issuance of the temporary restraining order prohibiting Defendants’
demonstration.
E.

The Administrative Burden on the Court of Enforcing the Temporary Restraining
Order Will be Minimal.
Finally, the burden on the Court of enforcing the temporary restraining order will be

minimal, if any. Once the Court issues the order, Defendants will be prohibited from
demonstrating at the property. Mall of America presumes that Defendants will abide by the
temporary restraining order, in which case the Court will have no further role in enforcing the
order. If, however, Defendants ignore the Court’s order, Mall of America will simply move to
have Defendants held in contempt of Court. No ongoing supervision will be required by the
Court, whatever Defendants’ actions.
F.

The Posting of a Bond Should Not Be Required as a Condition of the Temporary
Restraining Order.
Although a plaintiff seeking a temporary restraining order usually is required to post a

bond, a trial court may waive the security requirement at its discretion. Howe v. Howe, 384
N.W.2d 541, 546 (Minn.App.1986); Ecolab, Inc. v. Gartland, 537 N.W.2d 291, 297 (Minn. Ct.
App. 1995). In this case, the temporary restraining order will not harm Defendants in any way

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that would require monetary damages, even in the extremely unlikely event that the Court
ultimately finds for Defendants. Once the restraining order is in place, Defendants may still hold
their demonstration at any public place where it is lawful to hold such a demonstration. The
temporary restraining order will cause them no damages whatsoever. Accordingly, Mall of
America should not be required to post a bond to preserve its own rights as a private property
owner.
CONCLUSION
In the conclusion to his order, Judge Cahill wrote that the BLM demonstrators should not
construe his decision as “carte blanche to conduct future demonstrations at the MOA without
securing advance permission to do so from MOA management.” (Nov. 10 Order, p. 131.)
Despite this caution, this is exactly what Defendants appear to have done—taken the dismissal of
some of the charges against some of the defendants in the criminal cases as a sign that they may
trample over Mall of America’s rights as a private property owner with impunity. While Mall of
America supports the Defendants’ rights to free expression, its policies and the safety, security
and comfort of its guests mean that it cannot allow the planned demonstration to take place at the
MOA Premises. It has informed Defendants that the demonstration is unauthorized to no avail.
Because Mall of America will suffer irreparable harm if the BlackXmas2 demonstration is
allowed to go forward on December 23, 2015, Mall of America asks that the Court grant its
motion for a temporary restraining order and prohibit Defendants from participating in the
demonstration or directing others to do so.

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Dated: December 18, 2015

GRAY, PLANT, MOOTY, MOOTY
& BENNETT, P.A.

By

s/Susan Gaertner
Susan Gaertner (#0123882)
Joy R. Anderson (#0388217)
500 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 632-3000
Facsimile: (612) 632-4444
Susan.Gaertner@gpmlaw.com
Joy.Anderson@gpmlaw.com
ATTORNEYS FOR PLAINTIFF
MOAC MALL HOLDINGS, LLC,
D/B/A MALL OF AMERICA

GP:4243694 v1

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