ACLU defends anti-riot lawsuit against Stein’s motion to dismiss

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  • The American Civil Liberties Union is defending its federal lawsuit against North Carolina's new anti-riot law. Attorney General Josh Stein and three local district attorneys have asked a federal judge to dismiss the suit.
  • ACLU argues that the law's definition of "riot" is vague and overbroad. Stein and the DAs respond that court precedents dating back to the 1970s address the activist group's concerns.
  • Stein and the DAs also oppose ACLU's request for a preliminary injunction in the case.

The American Civil Liberties Union of North Carolina urges a federal court to allow its lawsuit to continue against the state’s new anti-riot law. The state attorney general and local district attorneys have asked the same court to dismiss the suit.

ACLU “members and employees frequently organize and participate in public protests throughout the state. These protests frequently address controversial issues and are the kinds of protests where, in recent years, protestors have been arrested under the Anti-Riot Act,” according to a document filed Thursday by ACLU’s lawyers.

“Defendants argue that ACLU-NC lacks standing to challenge the constitutionality of the Act because, they say, it applies only to individuals who personally engage in violence during a protest,” the brief continued. “Defendants’ argument ignores the language chosen by the legislature to define ‘riot.’ Where a participant in a public ‘assemblage’ acts violently, the Act deems it a riot — even if the assemblage’s other participants are acting peacefully.”

“Neither the Act’s text, nor State v. Brooks, contain the definitional limitations claimed by Defendants,” ACLU lawyers argued. “Indeed, Brooks only confirms the Act’s reach: in that case, the North Carolina Supreme Court affirmed the defendant’s conviction for engaging in a riot even though he did not personally engage in violence.”

“ACLU-NC’s members and employees risk liability under the Act for their peaceful participation in protests where others are acting violently,” the brief continued. “ACLU-NC thus has standing to assert that the Act’s definition of ‘riot’ is overbroad and vague, and its claims survive Defendants’ motions to dismiss.”

The suit targets Attorney General Josh Stein and three local DAs as defendants. Stein and the DAs filed separate motions in July to dismiss ACLU’s case. They also oppose ACLU’s request for a preliminary injunction.

“For 54 years, North Carolina has defined ‘riot’ in its Anti-Riot Act (the Act) as ‘a public disturbance involving an assemblage of three or more persons which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property,’” wrote lawyers from Stein’s N.C. Justice Department. “All those words amount to a simple meaning: A riot is a type of public disturbance — specifically, a violent one involving three or more persons.”

“Consistent with that meaning, the North Carolina Supreme Court, North Carolina Court of Appeals, and this [U.S. District] Court have all rejected facial constitutional challenges to the Act after concluding that a person who has not engaged in or threatened violent conduct has not engaged in a riot,” Stein’s lawyers added.

“The American Civil Liberties Union of North Carolina (ACLU-NC) reads the Anti- Riot Act differently. It alleges that the law’s definition of ‘riot’ allows the State to prosecute peaceful protestors simply because other people at the protest engaged in unlawful violence,” the Justice Department motion continued. “And, ACLU-NC alleges, if that reading is correct, the Act is unconstitutionally vague and overbroad. Moreover, ACLU-NC alleges, the risk of prosecution under the Act injures the organization and its members.”

“ACLU-NC’s allegations are puzzling. Although the organization now argues that the Act impairs its mission and infringes its members’ constitutional rights, the statute has been on the books for more than fifty years, and ACLU-NC has before never seen fit to challenge it,” Stein’s lawyers wrote. “But even setting this staleness concern aside, ACLU-NC’s concern is misplaced.”

Stein’s motion points to the N.C. Supreme Court’s “authoritative construction” of the term “riot” in a 1975 case titled State v. Brooks. “This construction poses two fatal problems for ACLU-NC.”

First, the accepted definition of “riot” threatens ACLU’s legal standing to bring a lawsuit. “Since ACLU-NC seeks only to engage in peaceful protests, the risk of the Act injuring ACLU-NC or its members is too remote to confer standing,” Stein’s lawyers argued. “This Court should therefore dismiss the Amended Complaint for lack of subject matter jurisdiction.”

Even if the suit survives the defendants’ challenge on standing, ACLU “has failed to state a claim,” Stein’s lawyers wrote. “Properly construed, the Act’s definition of ‘riot’ requires an act or threat of violence. ‘The First Amendment does not protect violence[,]’ so the definition touches only conduct that falls outside the First Amendment’s protections.”

“Moreover, because ‘violence’ has a well-settled meaning, the violence requirement eliminates any vagueness concerns,” the N.C. Justice Department motion continued. “Finally, even if § 14-288.2(a) were susceptible to ACLU-NC’s reading, the North Carolina Supreme Court’s contrary reading in Brooks binds this Court.”

N.C. General Statute § 14-288.2(a) is the state law defining the term “riot.”

“[B]ecause ACLU-NC lacks standing and can allege no set of facts that would entitle it to relief, its Amended Complaint should be dismissed with prejudice,” Stein’s lawyers wrote. “Alternatively, this Court should construe the Anti-Riot Act to avoid any constitutional concerns.”

The ACLU filed the latest version of its lawsuit on July 6. That action took place six days after Gov. Roy Cooper signed a bill amending one of the anti-riot law’s challenged provisions.

The original suit filed in April against House Bill 40 targeted provisions against “urging” a person to engage in a riot. ACLU argued the provisions violated a 1969 U.S. Supreme Court precedent in Brandenburg v. Ohio.

H.B. 40 became law in March.

“Then, the General Assembly got cold feet,” ACLU lawyers argued in the updated complaint.

In June N.C. House committee amendments to Senate Bill 626 removed the prohibitions against “urging” a riot from the anti-riot law. The N.C. House approved the measure, 113-0, and the Senate accepted the House’s changes, 45-0. Cooper signed the change into law on June 30.

“As amended by S.B. 626, the Anti-Riot Act no longer specifically criminalizes mere advocacy of unlawful conduct, rendering moot Plaintiff’s previous challenge to these ‘urging’ provisions,” ACLU lawyers concede.

“Still, S.B. 626 did nothing to address the Anti-Riot Act’s more fundamental problem: its vague and overbroad definition of what constitutes a ‘riot,’” the updated complaint argued. “As amended, the Act still defines a riot as any ‘public disturbance involving an assemblage of three or more people which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.’”

H.B. 40 cleared the N.C. House with a 75-43 vote in February. The Senate approved the measure with a 27-16 margin in March. Six House Democrats and one Senate Democrat joined Republican majorities to support the measure.

Both margins surpassed the three-fifths majority required to override a gubernatorial veto. Cooper announced on March 17 that he would not use his veto stamp.

“I acknowledge that changes were made to modify this legislation’s effect after my veto of a similar bill last year,” he said. “Property damage and violence are already illegal and my continuing concerns about the erosion of the First Amendment and the disparate impacts on communities of color will prevent me from signing this legislation.”

Cooper signed S.B. 626, which included the amendments striking the prohibition against “urging” a riot.

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