Raleigh PD calls protesting "non-essential activity"

The Raleigh Police Department says "protesting is a non-essential activity" during this pandemic.

What that means in practice remains to be seen. The department says it has arrested just one person to enforce stay-at-home orders in the city, and it was someone who threw a party in violation of mass gathering prohibitions, which among other things limit gatherings of more than 10 people.

But at least in theory, Raleigh Police say they can arrest people for protesting in public, regardless of whether those people are gathered in groups of more than 10, and regardless of whether they social distance by staying 6 feet away from everyone else.

Here's the backstory: On Tuesday, Raleigh police assisted State Capitol Police as officers watched over a protest outside the N.C. General Assembly.

Not everyone social distanced. Most people dispersed on police warnings, but one woman was arrested and charged with a misdemeanor. The magistrate's order specifically says she violated Gov. Roy Cooper's Executive Order 121, and it specifically mentions the prohibition against gatherings of more than 10 people.

Then came the Tweet.

"What part of the governor’s order was violated here?" someone asked the Raleigh Police Department on Twitter, as part of a social media thread the RPD's official account published during the protest.

"Protesting is a non-essential activity," the department replied.

People who consider the 1st Amendment, and its promised right "peaceably to assemble, and to petition the government for a redress of grievances," quickly registered their concern. But in a series of follow ups, both on the telephone with WRAL News and in writing, the department's spokeswoman made it clear the RPD is sticking to its interpretation.

"The Raleigh Police Department is bound to carry out the regulations stipulated in the Executive Order and the Wake County Proclamation," the statement reads.

Asked for comment, Raleigh Mayor Mary-Ann Baldwin referred WRAL News back to the RPD's statement. Wake County officials declined, through their spokeswoman, to address WRAL News questions about the intent of their order when it comes to protests.

Wake County Board of Commissioners Chairman Greg Ford did not return a phone message seeking comment.

The governor's office weighed in and called protesting "a fundamental right," indicating it need not be listed in an executive order to be allowed.

"The arrest appears to have been made based on violating Executive Order 121, which limits mass gatherings to 10 people or fewer," Cooper spokesman Ford Porter said. "While protests can be subject to restrictions on time, place and manner, they are held as a fundamental right under the Constitution and are not listed in the order."

The governor was asked twice about the issue during a Wednesday afternoon briefing, and he said his orders "do not interfere with people's constitutional rights to express themselves" but with "unlawful mass gatherings."

District Attorney Lorrin Freeman said Tuesday night that the Raleigh department's read of the stay-at-home orders is "technically correct." But arrests, she said, will remain a last resort.

Police contacted Freeman before Tuesday's arrest, and signed off on it. She said protesters "were given an opportunity to social distance" and told that, if they spread out, they could stay.

Officers will continue "giving a wide berth to peaceful protest," Freeman said.

First Amendment law is often nuanced. Government, experts said, can certainly limit freedom of expression, especially if there's another avenue left open to carry out that expression.

"I think this may be a case in which the language in the RPD Tweet – that protesting is not an essential activity – was unfortunate and perhaps obscures the legal analysis," said Amanda Martin, an attorney for WRAL News as well as the NC Press Association.

"If I were to edit the Tweet, I would say that protesting is an essential activity protected by the First Amendment, but that protesting in person, in groups standing close together, may not be protected while a highly infectious virus ravages our communities," Martin said in an email.

Martin said she didn't see a black-and-white answer, but that "I think the Stay-at-Home Order might constitutionally prohibit in-person protests."

Hugh Stevens, one of Martin's law partners, said he reached out to other attorneys Wednesday "without coming to a definitive conclusion."

"It does seem to me that if protestors were to gather in group of fewer than 10 in a place that is a public forum, such as the sidewalk across the street from the Governor’s Mansion, AND they maintained 6’ separation among themselves, disbursing them would be very problematic," Stevens said via email.

ACLU North Carolina Legal Director Kristie Graunke said that, "even under emergency orders, the First Amendment right to protected speech, including protest speech, remain in effect.

"But government officials may temporarily limit in-person gatherings in circumstances where medical and scientific experts agree that assemblies of people pose an immediate and grave risk to public health," she said. "Any public health measure limiting civil liberties must be re-evaluated when the medical and scientific consensus changes."

By Wednesday afternoon a pair of state senators – both Republicans, both attorneys and co-chairs of the NC Senate's Judiciary Committee – had written Cooper, requesting "urgent clarification of your executive orders" and citing the Raleigh Police Department's statements.

"The police department indicated that you, by executive order, have prohibited protesting itself," Sens. Warren Daniel and Danny Britt said in their letter. "If that is true, and if authorities are arresting people who protest because you prohibited protesting, that would be a grave overstep in your authority and would require immediate judicial intervention."