Judge dismisses ACLU’s federal lawsuit against NC anti-riot law

Judge Loretta Biggs (Image from C-SPAN.org)

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  • US District Judge Loretta Biggs has dismissed the American Civil Liberties Union's federal lawsuit against North Carolina's anti-riot law.
  • Biggs rejected ACLU arguments that the law originally enacted in 1969 featured a "vague and overbroad" definition of riot.
  • The judge cited previous state court rulings that showed the law could not be used to prosecute peaceful protesters.

A federal judge has dismissed the American Civil Liberties Union’s federal lawsuit against North Carolina’s anti-riot law. State Attorney General Josh Stein and three local district attorneys targeted by the suit had asked for the dismissal.

“The challenged statute in this action, the Anti-Riot Act, was originally enacted in 1969, in the midst of the Civil Rights Movement of the 1960s and student-led demonstrations against the Vietnam War and, according to the Amended Complaint, was enacted ‘to crack down on protests and demonstrations,’” US District Judge Loretta Biggs wrote in a 37-page order filed Wednesday. “The Act makes it a crime to ‘willfully engage[] in a riot’ and to ‘willfully incite another to engage in a riot’ when ‘that inciting results in a riot or is directly and imminently likely to produce a riot.’ ‘Mere presence alone without an overt act is not sufficient to sustain a conviction.’”

“Under the Act, a ‘riot’ is defined 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,’” Biggs added.

House Bill 40 amended the law in March 2023. It “further criminalized” urging a riot but left the definition of riot unchanged, Biggs noted. In June 2023, Senate Bill 626 removed the provisions of the law related to urging a riot.

ACLU argued that the definition of “riot” remained “vague and overbroad” in violation of the US Constitution’s First and 14th Amendments and three sections of the state constitution’s Declaration of Rights.

“[D]espite Plaintiff’s allegations of its members’ regular participation in protests and demonstrations, their intent to engage in similar activities in the future, and the past arrest of individuals under the Act, Plaintiff does not specifically allege an intent to engage in conduct that would inevitably violate the Anti-Riot Act,” Biggs wrote. “Thus, the Court concludes that Plaintiff has failed to allege that its members have an intention to engage in a course of conduct arguably affected with a constitutional interest and proscribed by statute.”

Biggs also found no “credible threat of prosecution” of ACLU members. “[T]here is no allegation that any official or entity of the State of North Carolina has threatened prosecution against Plaintiff’s members for the allegedly proscribed conduct or declined to disavow prosecution against Plaintiff’s members for the allegedly proscribed conduct,” she wrote.

“Plaintiff fails to sufficiently allege that persons who have participated in nonviolent protest in close proximity to an act of violence or property damage committed by others have been arrested and prosecuted under the Act,” Biggs added.

Prior state court rulings have limited the Anti-Riot Act’s use to people actively involved in violent activity, Biggs explained. “[T]his Court concludes that the Anti-Riot Act does not criminalize a substantial amount of protected expressive activity relative to the Act’s plainly legitimate sweep,” she wrote. “As a result, the overbreadth concerns Plaintiff alleges are alleviated, and the Court concludes that Plaintiff has failed to adequately allege that the Anti-Riot Act is overbroad under the U.S. Constitution.”

The judge rejected ACLU’s argument that the Anti-Riot Law is overly vague. “[T]he Court has concluded that one ‘willfully engages in a riot’ when that person actively participates in the riotous activity that takes place at an assemblage ‘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,’” Biggs wrote. “Such a standard would alleviate any concern of ordinary persons that seeking to exercise their right to protest by participating in a demonstration where violence or property destruction occurs would expose those persons to potential criminal and civil liability.”

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