The local Raleigh News and Observer fact checker kinda comes to the conclusion of “maybe, we think so, but, maybe”
Fact check: Did police violate constitutional rights at ‘Reopen NC’ protest in Raleigh?
The issue:Â Were police in the wrong when they arrested at least one protester near the legislature who was accused of violating the statewide stay-at-home order?
Why we’re checking this. The protesters asked for an end to Gov. Roy Cooper’s stay-at-home order, and the reaction from the Raleigh Police Department that “Protesting is a non-essential activity†inspired many angry responses.
What you need to know. During an official emergency, like the coronavirus is in North Carolina, can people be arrested for violating emergency orders while they protest?
Well, the other issue is, really, can law enforcement in North Carolina tell people that they must leave open public property, including the streets, when they are doing all they can to stay 6 feet or more apart, and many were simply in their vehicles, isolated from other people
Protesting is certainly a constitutionally protected act. The First Amendment guarantees that and more. But those constitutional rights don’t necessarily protect protesters from being arrested for breaking other laws while they protest.
For example, many liberal protesters have been arrested at the state legislature for trespassing in recent years, after refusing police orders to leave. Some have later had their charges dismissed, while others — most notably a frequent protest leader, the Rev. William Barber II — were prosecuted and convicted.
But, see, the Moral Monday protesters were arrested for being inside the General Assembly building. There were no problems with them being outside, except where they blocked entrance to the GA building. That’s a big difference between what they were doing here. And, no, the protesters yesterday couldn’t be arrested for trespassing, since the actual streets and state house grounds were not closed.
In addition to the arrest with the Reopen NC protest, anti-abortion protesters were arrested in Greensboro and Charlotte earlier this month. Those arrests have now triggered lawsuits.
Last week, after Texas Republican Sen. Ted Cruz said he thought the arrests of the anti-abortion activists were unconstitutional, The News & Observer wrote a fact-check about that claim.
The fact-check concluded that, as with many legal issues, it depends.
Police do have the power to use criminal charges to enforce Cooper’s stay-at-home order, said Shea Denning, a criminal law expert at the UNC School of Government. And in an officially declared emergency like this, there is much precedent for the government being able to take actions to address the emergency that might in normal times infringe on people’s rights.
The question, then, isn’t a simple one like whether people have a constitutional right to protest. The real question, Denning said, becomes whether the restrictions went too far — or whether the restrictions were enforced in a discriminatory manner.
The fact check offers many articles at the end on the subject, but only a few touch on North Carolina specifically, and do not really answer the question. Now, consider that NC Governor has not declared martial law, just a state of emergency, which is authorized by the North Carolina Emergency Management Act. Nowhere within does it discuss the loss of civil liberties during a state of emergency, that the government at any level (state, county, local) may abrogate any civil liberties laid out in the North Carolina Constitution. Again
Sec. 2. Sovereignty of the people: All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.
Sec. 12. Right of assembly and petition: The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances; but secret political societies are dangerous to the liberties of a free people and shall not be tolerated.
Here’s another interesting one I ran across reading further
Sec. 17. Slavery and involuntary servitude: Slavery is forever prohibited. Involuntary servitude, except as a punishment for crime whereof the parties have been adjudged guilty, is forever prohibited.
Is being ordered to stay home involuntary servitude? How about law enforcement order such?
Nationwide, the American Bar Association wrote in March, “Lawsuits challenging COVID-19 quarantines and restrictions on public gatherings may be doomed to failure.â€
Possibly, but that is not the question: it’s whether law enforcement can impede people engaged in a constitutionally allowed protest that is purely peaceful. That is really not answered, so, it will be interesting to see what courts may rule. I have a feeling that they will simply dismiss the fines and move on, except in more egregious cases of law enforcement over-reach.
Read: Fact Check: Did The Raleigh PD Violate Civil Liberties? »
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