Ferguson's 'Five-Second Rule' Not Enforceable, Judge Rules

Working with the ACLU of Missouri, Munger, Tolles & Olson LLP lawyers successfully argued that law enforcement officials in Ferguson, Missouri cannot enforce a rule prohibiting peaceful protestors from standing still.

In response to the protests, law enforcement implemented the “five-second rule” barring individuals from standing still for more than five seconds on public sidewalks. After the court denied a request for a temporary restraining order barring enforcement of this rule, Munger Tolles attorneys teamed with the ACLU of Missouri to prepare the briefs and handle the hearing at the preliminary injunction stage.

The Munger Tolles team argued that the five-second rule was unconstitutional because it infringed the First Amendment rights of peaceful protestors, gave excessive discretion to local law enforcement officers, and was applied inconsistently. The testimony presented at the preliminary injunction hearing—which was backed up by contemporaneous Twitter feeds and videos posted on social media—showed that law enforcement officers applied the rule to individuals who had stopped to pray, to small groups of peaceful protestors in broad daylight, and to reporters covering the protests. The testimony also showed that law enforcement officers applied the rule haphazardly, instructing some protestors they could not stop at all, others that they could stop for no longer than five seconds and still others that they had to keep walking at a certain speed.

On Oct. 6, 2014, U.S. District Judge Catherine Perry granted a preliminary injunction against the rule, finding that Munger Tolles’ client was likely to prevail on his First Amendment and due process challenges to the five-second rule. Judge Perry wrote in her ruling that “the rule of law is essential to our constitutional system of government and it applies equally to law enforcement officers and to other citizens.”

The Munger Tolles team included Grant A. Davis-Denny, Thomas Paul Clancy, Victoria A. Degtyareva, Thane Rehn and Kenneth M. Trujillo-Jamison.