A woman arrested after a 2020 Raleigh protest of then-Gov. Roy Cooper’s COVID-19 shutdown order heads back to court next week. She will ask a Wake County judge to allow her to proceed with a lawsuit against state and local officials.
Last year, a federal judge dismissed Monica Faith Ussery’s original lawsuit related to the same arrest. She has asked the 4th US Circuit Court of Appeals to reverse that decision.
Ussery is scheduled to head to Wake County Superior Court Monday for a hearing on her lawsuit addressing state constitutional claims stemming from the arrest. Defendants have filed motions to dismiss the suit.
“This case arises from a conspiracy formed by a group of state and local officials to pervert the criminal justice system, in violation of Articles 12, 14, and 19 of the North Carolina Constitution,” Ussery’s lawyers wrote in a brief filed Wednesday. “Defendants’ actions were designed to stifle public demonstrations against the government’s Covid-19 policies by arresting those who publicly challenged the unprecedented invocations of governmental power, which profoundly impacted the lives of every citizen in the State of North Carolina.”
“Defendants found their target in Ms. Ussery, the last remaining protestor at the first ReOpenNC protest on April 14, 2020 (the ‘Protest’), who was arrested after all other protestors had dispersed, while standing alone in a traditional public forum, a government parking lot which is part of the State Capitol Complex across from the legislative building,” Usserys’ lawyers added. “And their punitive, retaliatory campaign against Ms. Ussery continued long after the Protest, spanning three years, even though other protestors who supported more favored causes, including the Governor himself, were either not arrested, charged, or had their charges dismissed.”
Convicted in Wake County District Court on charges of second-degree trespass and violating Cooper’s COVID shutdown Executive Order 121, Ussery eventually accepted a deal to have charges dismissed in return for 25 hours of community service. Charges were dismissed in February 2023, nearly three years after the protest.
Lawyers representing Gov. Josh Stein and leaders of the state Department of Public Safety, State Capitol Police, and General Assembly Police filed a brief Wednesday urging the court to dismiss Ussery’s complaint.
“Plaintiff seeks monetary damages from numerous defendants employed by different state and municipal entities for the performance of their official duties during the beginning of the COVID-19 pandemic,” wrote Special Deputy Attorney General Matthew Tulchin. “She alleges that collectively the Defendants violated her rights to freedom of assembly, freedom of speech, equal protection, and due process as protected under the North Carolina Constitution. She also alleges that all Defendants conspired together to deprive her of those rights. Plaintiff’s allegations are implausible and fail to state a claim.”
“Plaintiffs conspiracy claim fails because, even assuming her allegations demonstrated there was an agreement amongst all Defendants, she failed to allege any facts that plausibly show an agreement amongst all the defendants to deny her constitutional rights or any illegal overt acts in furtherance of such a conspiracy,” Tulchin wrote.
Ussery’s freedom of speech claim “fails for numerous reasons,” the court filing continued. “As an initial matter, freedom of speech is not an issue in this case because EO 121 and the law of trespass involve the regulation of conduct, not protected speech. Moreover, even if freedom of speech was an issue, her claim fails because EO 121 was content and viewpoint neutral and narrowly tailored to serve a substantial government interest – the protection of the public’s health and safety by reducing the spread of a deadly disease.”
“Plaintiff’s equal protection and due process claims fail because the police officers had probable cause to arrest Plaintiff and she has failed to adequately allege that the State Defendants treated her differently than similarly situated people, let alone intentionally and deliberately discriminated against her based on her speech (or were otherwise motivated by discriminatory intent),” state defendants argued. “Finally, even if Plaintiff could plausibly allege any state constitutional claims against the State Defendants, those claims are barred by governmental immunity.”
The post Arrested COVID shutdown protester takes case to NC court first appeared on Carolina Journal.