Stein, DAs oppose ACLU’s move to block anti-riot law

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  • NC Attorney General Josh Stein and three local district attorneys urge a federal court not to block North Carolina's new anti-riot law.
  • The American Civil Liberties Union is challenging the law. It claims the definition of "riot" is "vague" and "overbroad." The ACLU is seeking a preliminary injunction.
  • Stein and the DAs oppose the injunction. They also have filed motions to dismiss ACLU's suit.

NC Attorney General Josh Stein and three local district attorneys urge a federal court to reject a request to block North Carolina’s new anti-riot law. The American Civil Liberties Union is pursuing a preliminary injunction against the law.

In documents filed Friday in US District Court, Stein and the DAs from Durham, Guilford, and Wake counties rejected the ACLU’s arguments.

“ACLU-NC asks this Court to enjoin the enforcement of North Carolina’s Anti-Riot Act, which has banned certain violent and destructive conduct for more than 50 years,” wrote lawyers from Stein’s NC Department of Justice. “ACLU-NC seeks this extraordinary relief even though the North Carolina Supreme Court considered and rejected a similar First Amendment challenge to the law five decades ago in State v. Brooks. Brooks holds that the Anti-Riot Act must be construed narrowly, so as not to reach ‘activity protected by the First Amendment.’”

“Since Brooks, moreover, the law has only become more clear in avoiding non-violent, constitutional conduct: earlier this year, the General Assembly added a provision that underscores that ‘[m]ere presence [at a riot] alone without an overt act is not sufficient to sustain a conviction,’” state Justice Department lawyers wrote. “Together, both Brooks and these recent revisions to the law confirm that ACLU-NC is simply wrong to argue that its members could theoretically be prosecuted or convicted for participating peacefully in a protest or assembly.”

Stein and the DAs filed motions on July 17 to dismiss ACLU’s lawsuit. “If this Court grants Defendants’ pending motions to dismiss, it need not reach this motion,” the state Justice Department argued in its latest filing. “Regardless, ACLU-NC’s motion should be denied for the same reasons that dismissal is appropriate. ACLU-NC cannot establish a likelihood of success on its constitutional claims because the organization lacks standing and because Brooks binds this Court and holds that the Act is neither overbroad nor vague.”

“In a First Amendment case, a plaintiff’s failure to establish a likelihood of success on the merits is usually sufficient, standing alone, to doom a motion for a preliminary injunction. But here, the other three elements — irreparable harm, balance of equities, and public interest — also favor Defendants,” according to the brief. “ACLU-NC cannot establish irreparable injury absent an injunction, because it alleges no intent to violate the Act as appropriately construed. ACLU-NC also cannot establish that the balance of harms of enforcing a constitutional statute favors the organization. The public interest, meanwhile, clearly favors avoiding the kinds of violent outcomes — death, serious injury, assaults of first responders, and significant property damage — that the Act was enacted to prevent.”

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 Act is a sweeping yet amorphous statute, and the scope of speech and conduct it encompasses is difficult to discern,” ACLU lawyers wrote in their amended complaint. “North Carolinians are left to guess whether they will be subject to significant civil or criminal penalties merely for exercising their fundamental free speech, assembly, and petitioning rights.”

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 NC House committee amendments to Senate Bill 626 removed the prohibitions against “urging” a riot from the anti-riot law. The 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.’”

“This fails to clarify whether, and under what circumstances, an individual who participates in a public demonstration where violence occurs may be held liable under the Act,” ACLU lawyers argued. “It also fails to specify what intent (if any) an individual must act with and what involvement (if any) an individual must have with others who commit acts of violence in order to be punished.”

ACLU argued that even the newly amended law violates the First and 14th Amendments to the US Constitution, along with three sections of the NC Constitution’s Declaration of Rights.

“To protect the free speech, assembly, and petitioning rights of itself and its members, Plaintiff files this amended complaint for declaratory and injunctive relief,” ACLU lawyers wrote.

Along with the amended complaint, ACLU updated its request to certify all NC district attorneys as a defendant class in the case. The three named DA defendants oppose that request.

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.

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