Federal Judge Dismisses Civil Rights Lawsuit over Anti-Lockdown Protester's Arrest
Raleigh Police arrested Monica Ussery in 2020 at the first ReopenNC demonstration after declaring that "protesting is a non-essential activity"
A federal judge has dismissed the civil rights lawsuit brought by Monica Ussery in relation to her arrest and prosecution for attending the first anti-lockdown ReopenNC protest in 2020. Raleigh Police famously declared that "protesting is a non-essential activity" when asked why they were shutting down the peaceable assembly.
Background
Monica Ussery's lawsuit alleged violations of her constitutional rights, not only by enforcement of the executive order (EO 121) against mass gatherings which the protest was deemed to be in violation of, but also in the government's failure to provide critical bodycam evidence prior to her 2021 trial (at which she was found guilty).
Ussery was only provided the bodycam video after she appealed her misdemeanor conviction to a jury trial; the recordings captured Raleigh Police Captain Dedric Bond, the officer in charge of the crackdown, instructing police that he was looking to "make an example" to dissuade protesters from returning the next week.
In 2023, after Ussery completed a deferral agreement with the DA to get the charges dismissed by completing community service, she filed the lawsuit alleging violation of the First and Fourteenth Amendment, as well as the North Carolina Constitution. The eventual amended complaint named the City of Raleigh, the officers who effectuated her arrest, as well as the following defendants:
Lorrin Freeman, Wake County DA
The Honorable Erik A. Hooks, Secretary of the NC Department of Public Safety
Cassandra Deck-Brown, then-Chief of the Raleigh Police Department (RPD)
Dedric Brown, RPD Captain
Roger "Chip" Hawley, Chief of the NC State Capitol Police
Martin Brock, Chief of the NC General Assembly Police Department
The Dismissal
Judge Terrence Boyle ordered the case to be closed after granting the defendants' motion to dismiss the various claims against the various defendants for a variety of causes:
Mootness. "EO 121 and the City's alleged policy are no longer in effect...the Court agrees that any claim for declaratory or injunctive relief based upon a facial challenge is moot due to the expiration of the executive order and policy."
Absolute prosecutorial immunity. "Absolute prosecutorial immunity protects district attorney defendants from liability for those activities which are traditionally associated with prosecution of a case...Ussery contends that Freeman is not protected by absolute immunity for failing provide to Ussery body camera footage in direct violation of a court's order to do so...Freeman is entitled to absolute prosecutorial immunity for Counts IV and V of the second amended complaint."
Qualified immunity. "None of the cases on which Ussery relies...include circumstances that resemble those present in this case: a newly effective executive order and proclamation placing limits on mass gatherings in order to slow the spread of a global pandemic. For this reason, 'courts across the country have addressed qualified immunity for government officials at the 12(b )(6) stage regarding Covid-19 measures and found government officials to be immune from suit in their personal capacities'...When defined at the proper level of specificity, the rights Ussery has alleged were violated were not clearly established."
Failure to state a claim
§ 1983 conspiracy. "While Ussery's allegations plausibly support that there was an agreement, at least between defendants Bond and Freeman, as to how to enforce EO 121 during a planned protest, Ussery has failed to plausibly allege that there was any mutual understanding to accomplish an unlawful plan, or, in other words, to violate her or any other ReOpenNC protestor's constitutional rights."
First Amendment. "ReOpenNC's protest was planned in response to the governor's stay-at-home order and restriction on mass gatherings, and thus EO 121 cannot be said to have been imposed because of any disagreement with speech it restricted...EO 121 restricted the manner in which North Carolinians could engage in First Amendment protected activities by limiting the size of gatherings, and its impact on protected First Amendment activities was incidental as the purposes served by limiting the size of gatherings were unrelated to the content of any expression...The existence of the magistrate's probable cause finding as well as her conviction in the district court further defeat Ussery's claim that she was arrested and prosecuted in retaliation for exercising her First Amendment rights."
Fourteenth Amendment due process. "EO 121 expressly defined the terms 'mass gathering' and 'social distancing,' explicitly provided that individuals could engage in outdoor activities so long as they complied with social distancing requirements and the mass gathering restriction, and provided what penalties could be imposed for violating the terms of the executive order. These definitions provided sufficient guidance to prevent discriminatory or arbitrary enforcement. Ussery has failed to plausibly allege that EO 121 was void for vagueness."
Fourteenth Amendment equal protection. "A claim for selective enforcement under the Equal Protection Clause requires a plaintiff to plausibly allege discriminatory animus...According to Ussery's own allegations, others expressing her same viewpoint were not arrested under similar circumstances. She has failed, therefore, to plausibly allege that any defendants used EO 121 to oppress an unpopular group."
City of Raleigh Monell claim. "The policy relied upon by Ussery is evidenced by a post by RPD on Twitter that protesting is a non-essential activity...Ussery's allegation that the RPD post on Twitter represents the decision of a policymaking official for the City of Raleigh is threadbare....Ussery was not arrested or prosecuted for engaging in a protest. She was arrested and prosecuted for violating EO 121, which the RPO was mandated to enforce."
Response
Ussery plans to appeal the decision, according to a conversation with This Week in the Triangle. "Justice has not been served yet, so I plan to continue," Ussery said. "As long as I'm alive and breathing, this case is going to keep going."
Editors note: Although I did not know her at the time, I participated in the protest Ussery at which was arrested. Ussery and I later became acquainted as we continued to protest the COVID mandates side-by-side at subsequent events. I have since permanently laid down my picket sign, as I believe I can do more good for the community as a journalist.
Infuriating. The Institute for Justice (podcast - Short Circuit) frequently discusses qualified / absolute immunity abuses; I don't have any connections there, but if Ms Ussery does not already have support and starts to need it to keep up the fight, I'm just guessing, but this might be a case that could interest them.