ACLU seeks injunction against new anti-riot law, wants all DAs as defendants

Rep. Shelly Willingham, D-Edgecombe, discusses an anti-riot bill while his co-sponsor, House Speaker Tim Moore, R-Cleveland, listens. (Image from

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  • The American Civil Liberties Union is seeking a preliminary injunction to block North Carolina's new anti-riot law. ACLU filed paperwork in federal court seeking an injunction roughly one month after filing suit against the law.
  • ACLU is also asking a federal judge to rule that all N.C. district attorneys will be considered defendants in the case. The original lawsuit named only the D.A.s for Wake, Durham, and Guilford counties.

The American Civil Liberties Union is seeking an injunction against North Carolina’s new anti-riot law. ACLU is also asking a federal judge to rule that every local district attorney will be treated as a defendant in the case.

The group filed paperwork in U.S. District Court Monday asking for a preliminary injunction against the law approved earlier this year. In separate documents, ACLU is asking for certification of all N.C. district attorneys as a “defendant class” in the case.

These latest requests follow the group’s April 10 lawsuit challenging the law, which is set to take effect Dec. 1. The anti-riot law was filed as House Bill 40.

“As expanded by H.B. 40, the Anti-Riot Act targets the actions of entirely peaceful protestors, criminalizes a substantial amount of protected speech, and undermines fundamental free speech, assembly, and petitioning rights,” ACLU lawyers wrote in the brief supporting an injunction. “The Act is overbroad and vague in violation of the First and Fourteenth Amendments to the U.S. Constitution and article I, sections 12, 14, and 19 of the North Carolina Constitution, and should be preliminarily enjoined by this Court.”

“The Act is unconstitutional for two reasons,” ACLU lawyers argued. “First, the provision defining a riot, which was repeated and re-enacted in H.B. 40, criminalizes entirely
peaceful protestors solely because of their proximity to other people’s disorderly or violent conduct.”

“Second, the provisions making it a crime to ‘urge[] another to engage in a riot,’ including a new provision introduced in H.B. 40, criminalize speech that the First Amendment shields: mere advocacy of unlawful conduct,” the brief added. “And, because of the definitional provision’s overbreadth, the urging provisions could apply to individuals who encourage peaceful protests which subsequently become violent.”

An injunction barring enforcement of the new law would “preserve Plaintiffs’ — and all North Carolinians’ — fundamental constitutional rights.”

The original lawsuit names N.C. Attorney General Josh Stein and the district attorneys of Wake, Durham, and Guilford counties as defendants. Each named defendant is a Democrat. The suit doesn’t name Republican legislative leaders who shepherded H.B. 40 through the General Assembly.

ACLU now hopes to add all other N.C. district attorneys as a “defendant class.”

The law “violates its fundamental rights to free speech, assembly, petitioning, and due process in violation of the federal and state constitutions. … These rights are held equally by ACLU-NC employees and members wherever they reside, work, or participate in public demonstrations throughout North Carolina,” according to an ACLU brief.

“Litigating challenges to the Act on a district-by-district basis would create a substantial risk of inconsistent adjudications, imposing different standards of conduct throughout the state,” the brief added. “Absent class certification, North Carolinians’ ability to exercise their fundamental constitutional rights would depend on where they live or happen to engage in speech and protest activities encompassed by the Act.”

“District attorneys could disparately enforce the Act depending on where they were elected. To facilitate a just, efficient, and consistent resolution of this facial constitutional challenge to the Act, Plaintiff respectfully seeks certification of a Defendant District Attorney Class,” the memo explained.

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. Gov. Roy 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.”

There is no timetable for a decision on the ACLU’s latest requests.