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ST. LOUIS (KTVI) – It is now up to a federal judge to decide whether the so-called ‘five-second rule,’ which police have been using as justification to force protesters in Ferguson to keep moving or face arrest, is legal.

U.S. District Judge Catherine Perry heard testimony Monday in St. Louis in a case brought by the ACLU, claiming police have no legal right to arrest protesters for “refusal to disperse” just for standing still.

“We have very serious concerns about the lack of due process that is happening in Ferguson,” said ACLU of Missouri Legal Director Tony Rothert.

“It does seem to be an intimidation tactic in many ways and that just makes people feel picked on and agitated and leads to the kinds of feelings that cause the unrest that we have seen,” he said.

On the stand, St. Louis County Police Chief Jon Belmar said the rule was meant to be enforced only at night but that some officers used their discretion to apply it during the day as well.

The ACLU maintains Missouri`s Refusal to Disperse law covers only “illegal” protests or “rioting,” and was not meant to empower police to arrest peaceful protesters.

The ACLU also says applying the five-second rule arbitrarily is a violation of due process rights.

Judge Perry is expected to rule on the request for an injunction in about a week.

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