"Non-Essential" Protester Sues over 2020 Arrest/Prosecution

It's been over three years since the Raleigh Police declared that "Protesting is a non-essential activity", but Monica Ussery's court battles are not over

The sole protestor arrested at the first Reopen NC protest on April 14, 2020 has filed a lawsuit alleging civil rights violations for both her original arrest as well as the subsequent legal case. Although Monica Ussery's criminal charges were recently dismissed via a completed deferral agreement, the government is currently pursuing contempt of court over the bodycam video I published on the 3rd anniversary of the police action against these peaceful protesters. Ussery will have a hearing this Thursday regarding the contempt motion.

Civil lawsuit

Ussery’s attorneys filed a civil complaint last Friday in the federal Eastern District of North Carolina naming Governor Cooper, Wake County District Attorney Lorrin Freeman, the City of Raleigh, and various law enforcement leaders/officers who were involved in Ussery’s arrest and prosecution.

COUNT I - Conspiracy to Deprive Plaintiff Constitutional Rights

The first count of the complaint is based on the bodycam recording of Raleigh Police Captain Bond giving a briefing to the Raleigh Police officers in a parking lot where the police forces were staging in preparation to shutting down the gathered protesters.

In addressing the law enforcement officers who were part of the arrest team, Bond
admitted holding a conference call with Defendants Freeman, Brooks, Hawley, and the Secretary of State to plan how to stop the protest and they reached an agreement on how to proceed. Bond stated, “Avoid parents with kids. . . What I want to do is make an example out of [agitators]. I’m hoping we’ll start locking up a few of the agitators that the rest will automatically disperse. . .We had a long conversation with Lorren [sic] Freeman and when you see the videos that are already
online and everything, it’s obvious that we just can’t allow that to continue. . . And then we already have intel that they’re planning on doing this again next Tuesday so it’s our opportunity to get it right this time and hope we won’t have to go through the same thing again next Tuesday.” Bond indicated he did not want the crowd to grow and wanted to start “locking up people as soon as possible.”

On the basis of these and other statements, Ussery alleges that “Defendants’ claims she was arrested for purposes of public health were false and pretextual.” As the video shows, “Bond then informed the officers, who stood in close proximity to each other without masks…He instructed the arrest team to put on their Personal Protective Equipment (‘PPE’) because Bond was going to tell the protestors that ‘this is a public health hazard’ and wanted to support his claim for the order to disperse”.

In addition, the complaint points out that the “warnings” given to the assembled protesters were not audible to the whole gathering: “protestors were honking car horns and the noise made it hard to hear the orders…Plaintiff did not hear Defendant Bond’s instructions and had already left State Visitor Parking Lot 1.”

The complaint alleges that Ussery was arrested in “retaliation of political opposition
and criticism,” and that “Defendants continued their retaliation through their prosecution of Ms. Ussery and by refusing to produce her Brady evidence.” (We’ll get into the alleged Brady violations further on).

The final allegation in this claim relates to Ussery’s continued prosecution, despite the fact that the governor repudiated the “Protesting is a non-essential activity” interpretation of his executive order: “Even after learning Governor Cooper’s interpretation of Executive Order No. 121 did not prohibit protesting, Defendants continued the conspiracy and agreed to continue to apply the interpretation that protesting was not essential…” We’ll also get into more detail about this aspect down in Count V, a claim of disparate treatment in violation of the Fourteenth Amendment.

COUNT II - Violation of the First Amendment

Count II-V specifically reference 42 U.S.C. § 1983, which allows a citizen to sue when any person uses the “color” of a law or statute to violate the citizen’s constitutional rights.

In this count, it is Ussery’s “free expression, free association, and assembly rights” which the defendants allegedly violated by having her arrested and prosecuted. Ussery alleges that the interpretation and enforcement of the executive order she was charged under was not “narrowly tailored” to advance a legitimate government interest:

87. The First Amendment to the United States Constitution Plaintiff’s right to rights to speak, to publish speech, to be free from content-based and viewpoint-based discrimination, to be free from unconstitutional conditions, to be free from laws giving government officials unbridled discretion, and to be free from vague and overbroad laws.
88. Executive Order No. 121, facially and as enforced and interpreted by Defendants, punished Plaintiff’s speech in a traditional public forum.

95. The Executive Order No. 121 gave Defendants discretion to interpret the
provisions of the order and exercise viewpoint-based discrimination, which resulting Defendants arresting and imposing fines on Plaintiff while allowing others to gather and express other views in support of Governor Cooper’s order.

COUNT III - Fourteenth Amendment: Procedural Due Process

The third count of the complaint alleges that the executive order by the governor was unconstitutionally vague. The Vagueness Doctrine, which is derived from the Due Process clauses in the Fifth and Fourteenth Amendment, holds that a law is unconstitutional if a citizen reading the law could not understand what is either required or prohibited.

In this case, the interpretation of the governor’s statute as applied to Ussery’s arrest was inconsistent with the future interpretation of the statute as applied to future protests, as well as the governor’s clarification. In response to a request for clarification written shortly after Ussery’s arrest by Anthony Biller, one of the lawyers in this lawsuit, Governor Cooper stated that “So that there is no confusion
regarding this issue, outdoor protests are allowed so long as the space occupied by
the protesters is not enclosed (i.e. with walls) and so long as the protesters maintain
the Social Distancing Requirement that individuals remain at least six feet apart
unless they are members of the same household.”

However, the language used by Captain Bond is not consistent with Cooper’s interpretation. In his own words, Bond told the protesters that “you are in violation of the executive order by gathering here,” but that he “might be able to work with them” if they socially distanced and the group didn’t get “too big”.

COUNT IV - Fourteenth Amendment: Procedural Due Process
Brady Violations

The Brady rule refers to the goverment’s obligation to “disclose material, exculpatory information in the government's possession to the defense”. In this case, the material which was not disclosed prior to Ussery’s conviction at bench trial includes the bodycam video of her arrest, as well as bodycam video of Captain Bond referenced in the first count. It was reported in April 2020, a week after Ussery’s arrest, that DA Freeman had “asked to review police body camera footage from the protest”.

If the video had been provided Ussery prior to her trial, she possibly could have proved that the government’s sole witness, a State Capitol Police Officer, made multiple false statements both on the stand and in his original report.

This is in some ways separate from the rest of the claims; even if the court finds that Ussery’s arrest was entirely lawful and constitutional, it could still find that Ussery’s due process rights had been violated by government’s the failure to disclose this evidence until Ussery had already been convicted at bench trial.

COUNT V - Fourteenth Amendment: Equal Protection

The final count of the complaint involves the due process protection against “disparate treatment” derived from the Fourteenth Amendment. Ussery argues that “similarly situated persons” were treated “disparately” “with respect to the exercise and enjoyment of a fundamental right”, giving examples of later Reopen NC protests as well as demonstrations in response to the death of George Floyd. The filing also includes reporting of a non-socially distanced Governor Cooper dropping his mask while briefly joining a protest outside the Executive Mansion:

Conclusion

Ussery is asking for a declaration by the court that her First and Fourteenth Amendment rights were violated, as well as unspecified damages and legal fees.

Wake County DA has already responded to the lawsuit in a statement to North State Journal, stating in part that “I did direct that individuals failing to follow law enforcement directions regarding the executive order in place at that time should be charged if efforts to obtain voluntary compliance were unsuccessful…My office does not direct and is not involved in law enforcement operational decisions and actions including whether personal protective equipment is used by officers and was not involved, nor consulted, in those decisions relevant to this protest.”