With one unnecessary arrest and one tone-deaf tweet, police placed North Carolina smack dab in the middle of a national COVID-19 controversy.
Videos from Tuesday’s #ReopenNC protest rally show three N.C. State Capitol police officers approaching a woman standing in a parking lot, handcuffing her with plastic zip ties and leading her away. Police say the protester, 51-year-old Monica Faith Ussery of Holly Springs, disobeyed multiple orders to disperse.
Ussery was charged with violating Gov. Roy Cooper’s executive order prohibiting mass gatherings. Just one problem, officers — as soon as the other protesters around her heeded the warning and left the area, Ussery wasn’t part of a group larger than 10 people anymore. She was standing by herself and definitionally was no longer out of compliance.
Police could have charged Ussery with failure to disperse when commanded, a Class 2 misdemeanor, and that allegation might have stuck. But news footage readily available online disproves the charge filed — violation of emergency prohibitions and restrictions. None of the governor’s orders prohibit a lone individual from standing stock-still in a public place.
Wake County District Attorney Lorrin Freeman ought to dismiss this case before it gets anywhere near a courtroom. The arrest was an abuse of discretion that placed Ussery and the officers at risk of coronavirus transmission.
Demonstrators sat in cars and some gathered on downtown Raleigh’s streets to air their frustrations with executive orders designed to slow COVID-19’s spread throughout the Tar Heel State. Members of the #ReopenNC movement say shutting down large swaths of North Carolina’s economy is harming local businesses and workers, and they want the public health diktats relaxed or lifted.
Raleigh police joined the state capitol cops on protest patrol. The city police department provided real-time updates on Twitter, and one poorly worded tweet went viral.
Twitter user @thmsftz replied to a Raleigh Police Department tweet and asked, “What part of the governor’s order was violated here?”
The response from @raleighpolice: “Protesting is a non-essential activity.”
Even in full context, that statement is problematic — Cooper’s stay-at-home order and other COVID-19 decrees don’t identify protest as a permitted activity, but they also don’t expressly prohibit it. The only restriction that seems to apply is the 10-person limit on public gatherings.
While police almost certainly used the word “non-essential” to distinguish protests from specified activities deemed “essential” and exempted from certain restrictions in the governor’s orders, the message stripped of that context raised alarms and drew fierce pushback.
Conservative pundit Ben Shapiro gave his two cents; commentators, celebrities, civil liberties watchdogs and lawyers piled on. The tweet made North Carolina a national example of authoritarian overreach.
Do emergency orders issued in the interest of public health really override the First Amendment’s guarantees of free speech, freedom of assembly and freedom to petition government for a redress of grievances?
Legal scholars say carefully crafted restrictions — like keeping demonstrators 6 feet apart from one another in accordance with social distancing guidelines — are probably defensible, but a blanket ban on all public protest isn’t likely to survive a federal court challenge.
Partisan battle lines are forming, with Republican lawmakers entering the fray to oppose our Democratic governor. State Sens. Warren Daniel and Danny Britt, who co-chair the Senate Judiciary Committee, wrote to Cooper on Wednesday and asked him to resolve the matter.
Police “did not point to improper social distancing as the reason for their decision to arrest people yesterday,” Daniel and Britt wrote. “The police department indicated that you, by executive order, have prohibited protesting itself.”
If true, the senators continued, “that would be a grave overstep in your authority and would require immediate judicial intervention.”
Daniel and Britt are attorneys. We trust they’re aware Cooper’s orders don’t specifically mention protests, but their point is well made. If police can’t properly parse the decrees and reconcile them with constitutional case law, it’s the governor’s responsibility to set them straight.
Cooper’s solid track record on open government issues doesn’t suggest he means to run roughshod over the First Amendment. He should clarify the application of his executive orders to public protests and hew closely to the legal consensus that police can require social distancing but can’t arrest people merely for exercising their free speech rights.
The tweet heard ‘round the world is dead wrong — protest is essential, even in the age of COVID-19, and especially when the protest concerns our government’s response to that global pandemic. American citizens must retain the right to make their case in the public square.
