Raleigh seeks removal from federal lawsuit challenging COVID protest arrest

ReopenNC members protest across from the Legislative Building in Raleigh April 14. (CJ photo by Rick Henderson)

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  • The city of Raleigh is asking a federal court to drop the city from a High Point woman's lawsuit challenging her arrest during a 2020 COVID policy protest.
  • Monica Ussery sued Raleigh and two members of its police department, along with Gov. Roy Cooper and other state and local law enforcement officials.
  • Raleigh argues that Ussery's complaint fails to make an adequate case for legal liability against the city.

The city of Raleigh is asking a federal judge to drop the city from a High Point woman’s lawsuit challenging her arrest connected to an April 2020 protest over state COVID-related shutdowns.

Monica Ussery filed suit in April against the city, a now-retired police chief, and a now-retired Raleigh police captain, along with Gov. Roy Cooper, State Public Safety Secretary Erik Hooks, Wake County District Attorney Lorrin Freeman, and representatives of the State Capitol Police and General Assembly Police.

“The Amended Complaint argues that the City should be held liable to the Plaintiff pursuant to 42 U.S.C. § 1983 for violating Plaintiff’s free speech and free assembly rights secured by the First Amendment, as well as Plaintiff’s guarantees of due process and equal protection secured by the Fourteenth Amendment. However, the Amended Complaint lacks sufficient factual material to support a plausible Monell claim against the City,” wrote lawyers from the Raleigh City Attorney’s Office.

A 1978 precedent case, Monell v. Department of Social Services, says “a municipality is liable only for its own illegal acts,” city lawyers argued. “Liability is limited to those instances in which the municipal policy or custom itself causes a deprivation of constitutional rights.”

“While the Amended Complaint includes the City among the defendants whom Plaintiff seeks to hold liable for her alleged unlawful arrest and prosecution, it contains no mention whatsoever of any official City policy which could have plausibly caused the alleged constitutional violations,” according to the city’s motion.

The motion rejects Ussery’s state constitutional claims against the city. Raleigh also asks the court to reject claims made against former Police Chief Cassandra Deck-Brown and retired police Captain Dedric Bond in their official capacities.

Ussery was arrested and charged in connection with an April 2020 ReOpenNC COVID shutdown protest. Her lawsuit alleges violations of her First and 14th Amendment rights.

“Serving in the role of drum major, throughout the COVID-19 pandemic, Governor Roy Cooper led a parade of government officials who trampled over the constitutional rights of the North Carolinians they serve,” according to Ussery’s complaint. “Whether it was shuttering houses of worship, closing schools, or destroying small businesses, in the name of public health, there was seemingly no right beyond the reach of Governor Cooper, state, and local officials’ executive orders and edicts. These officials’ power grabs were remarkable, unprecedented in American history and far-reaching, with the consequences still being felt years later.”

“Plaintiff Monica Faith Ussery experienced firsthand this unprecedented invocation of power. When she saw the most powerful forces in this State locking arms in apparent disregard of our Bill of Rights, she took to the streets to peacefully protest. Because she exercised this fundamental human and constitutional right, Ms. Ussery was arrested and prosecuted, for years,” according to the complaint.

“With her criminal case resolved in her favor, the day of reckoning is here,” wrote Ussery’s lawyers.

The complaint cited recently released video evidence from law enforcement agencies responding to the April 14, 2020, ReOpen NC protest that led to Ussery’s arrest. That protest took place in a parking lot in the state government complex, less than one month after Cooper issued COVID-19 executive orders shutting down most businesses and public events.

“Through the videos Ms. Ussery learned that Defendants’ claims she was arrested for purposes of public health were false and pretextual,” according to the complaint. “Three was no discussion of ensuring adequate spacing between protestors. The only discussion was about punishing agitators so that they would not return to further protest Defendants’ lockdown orders.”

The suit made direct allegations against Bond.

“Bond admitted holding a conference call with Defendants Freeman, Brooks [sic], Hawley, and the Secretary of State to plan how to stop the protest and they reached an agreement on how to proceed,” according to the complaint. “Bond stated, ‘Avoid parents with kids. … What I want to do is make an example out of [agitators]. I’m hoping we’ll start locking up a few of the agitators that the rest will automatically disperse. … We had a long conversation with Lorren [sic] Freeman and when you see the videos that are already online and everything, it’s obvious that we just can’t allow that to continue. … And then we already have intel that they’re planning on doing this again next Tuesday so it’s our opportunity to get it right this time and hope we won’t have to go through the same thing again next Tuesday.’ Bond indicated he did not want the crowd to grow and wanted to start ‘locking up people as soon as possible.’”

“These statements make clear that Defendant’s actions on April 14, 2020, were not
to protect public health or to make sure protestors stayed at least six feet apart from each other,” Ussery’s lawyers wrote. “To the contrary, Defendants intended to and conspired to punish and make an example of ‘agitators’ for exercising their First Amendment rights to protest Governor Cooper’s lockdown orders.”

Ussery faced arrest as other protesters were leaving the scene that day. She had planned to take photos of cars as they departed, according to her complaint. She was standing by herself when officers arrested her. The complaint notes that prosecution of Ussery continued after government officials permitted other forms of protest in the same location. The prosecution outlasted Cooper’s shutdown orders.

A District Court judge convicted Ussery in June 2021 of criminal trespass and violating a COVID executive order. She was fined $300. Ussery appealed, and the case eventually was dismissed.

“As a result of her conviction and then appeal, Ms. Ussery has amassed legal bills, missed time from work, had to travel from her home in High Point, to Raleigh, North Carolina, multiple times, has suffered embarrassment, physical and emotional distress, and the prolonged legal process caused significant strain on and the ultimate end of Ms. Ussery’s marriage,” according to the complaint.

The complaint asked a federal judge to declare that the defendants violated Ussery’s constitutional rights. She seeks “all appropriate damages,” along with the costs and expenses associated with the suit.