Group opposed to NC stay-at-home order demands protection from arrest while protesting

After the arrest of a protester at Tuesday’s rally against Gov. Roy Cooper’s pandemic-spawned executive orders, a group opposing the strict social restrictions is seeking legal protection.

Lawyers Anthony Biller and James Lawrence, Raleigh-based lawyers with the law firm Michael Best & Friedrich representing ReOpenNC, sent a letter to Cooper and Wake County Board of Commissioners Chairman Greg Ford on Friday asking for assurances they’ll be able to protest.

According to the letter, the protesters want written clarification that protests are considered essential activities and thus not subject to executive orders’ restrictions on mass gatherings.

“Unfortunately,” Biller wrote, “these broad orders have created a reasonable apprehension the exercise of such fundamental rights will lead to detention, arrest and criminal prosecution.”

The protest organizers are willing to stay six feet apart unless they are members of the same household, one of the requirements of Cooper’s stay-at-home order. Being declared essential would mean they couldn’t be prosecuted under the provision that bans mass gatherings of more than 10 people.

“My clients would prefer to resolve these issues amicably,” Biller wrote in the letter.

The lawyers also demand charges against 51-year-old Monica Faith Ussery, the Holly Springs woman arrested and charged with violating Cooper’s order last Tuesday, be dismissed.

ReOpenNC members have said they plan to protest in downtown Raleigh at the Legislative Building every Tuesday until the executive orders are relaxed.

The group asks for a response from Cooper and Ford no later than 2 p.m. on Monday, saying otherwise it will consider legal action.

“If your offices do not provide reasonable assurance and objective standards that preserve my clients’ constitutional rights,” Biller wrote, “we will have no choice but to seek emergency legal relief in advance of Tuesday’s planned protest.”

In response to an email from The News & Observer on Sunday, Biller said he had yet to hear from Cooper or Ford since sending the letter.

In an email to the News & Observer, Ford acknowledged receiving the letter on Saturday and said he forwarded it to the county attorney’s office. He said he couldn’t comment on it until it is reviewed by the county attorney.

Emails from the N&O requesting comment from Cooper were not answered on Sunday.

ReOpenNC, started on Facebook earlier this month, has surpassed 50,000 members on its private Facebook page.

Governor’s orders

Cooper’s stay-at home-executive order, issued March 27, is due to expire on April 29. The rules allow only businesses deemed essential, such as grocery stores and pharmacies, to remain open. Restaurants can serve customers only with to-go orders, and bars have closed. Gatherings of more than 10 people are prohibited.

Last week Cooper added a new order limiting occupancy of essential businesses to 20% of their building-code capacity.

He and Dr. Mandy Cohen, secretary of the state’s Department of Health and Human Services, have cited the rules calling for social distancing as reasons COVID-19’s spread has been slowed in North Carolina.

As of Sunday morning, the state has reported more than 6,300 cases with more than 160 deaths. Of the state’s 100 counties, 93 have seen at least one reported case of coronavirus.

In interviews with the N&O and Charlotte Observer, ReOpenNC organizer Ashley Smith described Cooper’s restrictions as “economic suicide,” saying the damage being inflicted on the economy is far worse than the virus would cause. She said the deaths, while tragic, represent only a small portion of North Carolina’s 10.5 million residents.

ReOpenNC is one of several like-minded groups around the country who have come out against stay-at-home orders in other states. The Washington Post reported that conservative groups, including the Heritage Foundation, are supporting many of the protesters. ReOpenNC’s Facebook feed features numerous posts by conservative websites, including Tennessee Star and Zerohedge, both of which received subpar ratings for credibility from NewsGuard, an organization that rates the quality of news websites.

Michael Best & Friedrich, the national law firm now representing ReOpenNC, employs former Republican National Committee chair Reince Priebus as president of its government relations and public affairs group. Priebus was chief of staff for the Trump White House in 2017.

Smith, who also said she is against mandatory vaccinations for any diseases, said ReOpenNC is a grassroots effort that maintains a private Facebook page so it can ensure its members are all North Carolinians. However, to be added to the page, potential members need only answer “yes” or “no” to the state residency question.

Cooper acknowledges the economy can’t stay closed down at this level indefinitely. He said predictive models, trends in cases and deaths, the state’s ability to test and trace and economic factors will all be considered as he decides whether to let his orders expire on April 29 or extend them.

But the Democratic governor has said to “completely obliterate” the restrictions “would be a catastrophe.”

On Sunday, five Charlotte-area lawmakers urged Cooper to allow NASCAR races to return to Charlotte Motor Speedway in Concord with no fans present.

Constitutional rights

Since Ussery was arrested while protesting the executive order that led to her arrest, two Republican state senators sent Cooper a letter last week asking if he intended to criminalize “the act of protesting against your executive orders.”

The GOP lawmakers, Sens. Danny Britt of Lumberton and Warren Daniel of Morganton, wrote to Cooper that if the police are arresting people specifically for protesting, “that would be a grave overstep in your authority and would require immediate judicial action.”

Cooper said Wednesday that his orders don’t do anything to “interfere with people’s constitutional rights to express themselves.”

“However they do deal with unlawful mass gatherings and people who are disobeying those orders,” Cooper said. “They are put there to protect the people of North Carolina.”

Nicole Ligon, who leads the First Amendment Clinic at the Duke University School of Law, wrote in an email that police appear to have had proper legal authority to make the Raleigh arrest.

Ligon said that “as a First Amendment litigator and academic, I am close to a First Amendment absolutist and am always wary of any restrictions on the right of free speech. But here, the constitution likely permits such action.”

In his email to the News & Observer on Sunday, Ford cited his experience as an American history and government teacher in expressing his support for the right to peaceful and lawful protests.

“I have participated in a number of protests, rallies, demonstrations, and marches myself — and in recent years I brought my kids with me, so they could witness for themselves one of our essential American freedoms,” Ford said. “All Americans should support our fellow citizens’ right to peacefully and lawfully assemble.”

As for how law enforcement handled last Tuesday’s ReOpenNC protest, Ford said, “In matters like these, I think the opinions of the district attorney or a judge matter most.”