State, Raleigh, Wake DA all seek dismissal of federal suit tied to COVID protest arrest

Defendants in a federal lawsuit stemming from an arrest at a 2020 COVID shutdown protest are asking a judge to throw out the case. Four separate motions arrived in US District Court this week seeking dismissal of Monica Ussery’s complaint.

Ussery filed suit this April in connection with her arrest at an April 2020 protest led by the ReOpen NC group. The group opposed COVID-related shutdowns based on Gov. Roy Cooper’s executive orders.

Ussery originally targeted Cooper, the city of Raleigh, and state and local law enforcement officials for alleged violations of her First and 14th Amendment rights. As the case has moved forward, Ussery dropped Cooper as a defendant.

Lawyers representing state law enforcement officials, Wake County District Attorney Lorrin Freeman, the city of Raleigh, and former city Police Chief Cassandra Deck-Brown all filed motions Wednesday seeking dismissal of the complaints against them.

Complaints against the state public safety secretary, State Capitol Police chief, General Assembly police chief, and other state law enforcement officials are barred because of the 11^th Amendment and sovereign immunity, argued Special Deputy Attorney General Matthew Tulchin of the NC Justice Department.

“Even if Plaintiff could assert claims against the State Defendants, those claims necessarily fail because Plaintiff has not alleged any actions taken by the State Defendants that could give rise to any claims against them,” Tulchin wrote. “[A] complaint … must include allegations of some wrongful conduct by a defendant that resulted in harm to the plaintiff. Indeed, a complaint must set forth sufficient facts and detail so that it is clear exactly which defendant is alleged to have committed what acts and to whom.”

Ussery “barely mentions the State Defendants individually by name, reference, implication, or otherwise – and it is impossible to discern any action taken by any of these defendants that would substantiate Plaintiff’s complaints,” Tulchin argued.

Freeman also cited the 11th Amendment in a separate court filing. “Plaintiff’s claims against Defendant Freeman in her official capacity seeking damages or declaratory relief for past conduct are barred by the Eleventh Amendment because she is a state official, and the State of North Carolina has not waived its Eleventh Amendment sovereign immunity,” wrote the special deputy attorneys general representing the Wake DA. Freeman also cited prosecutorial immunity.

“Because [the complaint]  lacks factual content giving rise to a plausible inference that the allegedly unconstitutional actions of any City employee were taken pursuant to official City custom or policy, Plaintiff’s claims against the City must be dismissed,” according to a filing from the Raleigh city attorney’s office.

“This case arises out of the political protests precipitated by Governor Cooper’s Executive Orders shutting down and locking down the State of North Carolina in March 2020 in response to the COVID-19 pandemic,” according to a September court filing from Ussery. “Plaintiff Monica Faith Ussery opposed Governor Cooper’s actions and joined other dissenters at a protest on April 14, 2020, organized by ReOpenNC to exercise her First Amendment rights to protest peacefully, assemble, and to petition the government for redress.”

“Ussery was arrested, purportedly for violating Executive Order No. 121 and a City of Raleigh policy that declared that ‘protesting is a non-essential activity.’ However, the reality of her arrest was that she was arrested to set an example and was targeted as an agitator due to the content of her speech,” the document continued.

“Ussery filed this suit seeking to vindicate her fundamental rights and has brought claims under 42 U.S.C. § 1983 for violations of the First and Fourteenth Amendments and a claim for conspiracy to deprive Ms. Ussery of her state constitutional rights under the North Carolina Constitution, Art. 1, §§ 12, 14, and 19.”

The cited state constitutional provisions address the rights of assembly and petition, freedom of speech, and the “law of the land clause,” along with the state’s equal protection clause.

The original lawsuit cited 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.”

“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.