First, the state's harassment law - as quoted in the court's opinion - does not require prosecutors to prove intent. Ness' behavior is problematic but it shouldn't be criminally problematic. Ness sued, claiming the laws cited infringed on her Constitutional rights and that the ongoing threat of prosecution has resulted in her curtailing her documentation of park use by the school. Bloomington prosecutors also declined to prosecute Ness. After the most recent law enforcement encounter, Bloomington police attempted to charge Ness with felony harassment, but the Hennepin County Attorney's office declined to bring charges against her. She had two run-ins with local law enforcement before filing her lawsuit. To document these supposed violations, Ness has approached children in the park and parked across the street to take photographs/record DAF students using the park. Ness believes the permit is being violated on a daily basis by students' "excessive" use of park facilities that makes it "impossible" for nearby residents to use it at the same time. Ness became involved when the mosque opened its school and obtained a Conditional Use Permit for Smith Park that allowed students to use it during school days. In a statement, he says Ness’ predicament is just “another example of encroachment on our liberties when Islam is involved.” Her co-counsel, David Yerushalmi, disagrees. Her lawyer says this has nothing to do with the school's religious affiliation. The Southern Poverty Law Center calls that organization’s co-founder David Yerushalmi an “anti-Muslim activist” and “a leading proponent of the idea that the United States is threatened by the imposition of Muslim religious law, known as Shariah.” The American Freedom Law Center, which claims that “the battle for America’s soul is being waged in the courtrooms across America” against “secular progressives and Sharia-advocating Muslim Brotherhood interests,” is co-counseling the case. Her legal representation in this lawsuit isn't that sympathetic either. That includes maintaining a public blog and Facebook page all about the “DAF/Success Academy controversy,” complete with photos and video of street traffic, kids being dropped off at school, and people otherwise going about their business.
Ness has taken it upon herself to document activity at site. Here's how she's fighting back against apparently city-approved use of Smith Park:
Ness feels there's too much traffic and too much use of a local public park by the Center and the school. Her nemesis appears to be the Dar Al-Farooq Center and its school, Success Academy. Ness is discussed in this early reporting on her lawsuit, which shows her activism is pretty limited in scope. The plaintiff is Sally Ness, an "activist" who appears to be overly concerned with a local mosque and its attached school. A challenge of two laws - one city, one state - has been met with a judicial shrug that says sometimes rights just aren't rights when there are children involved. But that's not how rights work.Ī pretty lousy decision has been handed down by a Minnesota federal court. Sometimes you're handed an unsympathetic challenger, which makes defending everyone's rights a bit more difficult because a lot of people wouldn't mind too much if this particular person's rights are limited. You can't always pick your fighter for Constitutional challenges.