Stein, DAs seek dismissal of ACLU lawsuit against anti-riot law

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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  • N.C. Attorney General Josh Stein and district attorneys in Durham, Guilford, and Wake counties have filed motions asking a federal judge to dismiss a lawsuit challenging the state's updated anti-riot law.
  • The American Civil Liberties Union filed an amended version of its lawsuit on July 6. While ACLU conceded that amendments signed into law in June addressed some of the group's concerns, the group argued the definition of "riot" is "vague and overbroad."
  • Stein's N.C. Justice Department lawyers wrote that a 1975 N.C. Supreme Court ruling addresses ACLU's concerns.

N.C. Attorney General Josh Stein and three district attorneys have filed separate motions to dismiss the American Civil Liberties Union’s federal lawsuit against the state’s updated anti-riot law.

Those motions reached U.S. District Court on Thursday, two weeks after the ACLU amended its suit. The group claims the law’s definition of “riot” is “vague and overbroad.” The complaint names Stein as lead defendant, along with the district attorneys in Durham, Guilford, and Wake counties.

“For 54 years, North Carolina has defined ‘riot’ in its Anti-Riot Act (the Act) 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,’” wrote lawyers from Stein’s N.C. Justice Department. “All those words amount to a simple meaning: A riot is a type of public disturbance — specifically, a violent one involving three or more persons.”

“Consistent with that meaning, the North Carolina Supreme Court, North Carolina Court of Appeals, and this [U.S. District] Court have all rejected facial constitutional challenges to the Act after concluding that a person who has not engaged in or threatened violent conduct has not engaged in a riot,” Stein’s lawyers added.

“The American Civil Liberties Union of North Carolina (ACLU-NC) reads the Anti- Riot Act differently. It alleges that the law’s definition of ‘riot’ allows the State to prosecute peaceful protestors simply because other people at the protest engaged in unlawful violence,” the Justice Department motion continued. “And, ACLU-NC alleges, if that reading is correct, the Act is unconstitutionally vague and overbroad. Moreover, ACLU-NC alleges, the risk of prosecution under the Act injures the organization and its members.”

“ACLU-NC’s allegations are puzzling. Although the organization now argues that the Act impairs its mission and infringes its members’ constitutional rights, the statute has been on the books for more than fifty years, and ACLU-NC has before never seen fit to challenge it,” Stein’s lawyers wrote. “But even setting this staleness concern aside, ACLU-NC’s concern is misplaced.”

Stein’s motion points to the N.C. Supreme Court’s “authoritative construction” of the term “riot” in a 1975 case titled State v. Brooks. “This construction poses two fatal problems for ACLU-NC.”

First, the accepted definition of “riot” threatens ACLU’s legal standing to bring a lawsuit. “Since ACLU-NC seeks only to engage in peaceful protests, the risk of the Act injuring ACLU-NC or its members is too remote to confer standing,” Stein’s lawyers argued. “This Court should therefore dismiss the Amended Complaint for lack of subject matter jurisdiction.”

Even if the suit survives the defendants’ challenge on standing, ACLU “has failed to state a claim,” Stein’s lawyers wrote. “Properly construed, the Act’s definition of ‘riot’ requires an act or threat of violence. ‘The First Amendment does not protect violence[,]’ so the definition touches only conduct that falls outside the First Amendment’s protections.”

“Moreover, because ‘violence’ has a well-settled meaning, the violence requirement eliminates any vagueness concerns,” the N.C. Justice Department motion continued. “Finally, even if § 14-288.2(a) were susceptible to ACLU-NC’s reading, the North Carolina Supreme Court’s contrary reading in Brooks binds this Court.”

N.C. General Statute § 14-288.2(a) is the state law defining the term “riot.”

“[B]ecause ACLU-NC lacks standing and can allege no set of facts that would entitle it to relief, its Amended Complaint should be dismissed with prejudice,” Stein’s lawyers wrote. “Alternatively, this Court should construe the Anti-Riot Act to avoid any constitutional concerns.”

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 N.C. House committee amendments to Senate Bill 626 removed the prohibitions against “urging” a riot from the anti-riot law. The N.C. 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 U.S. Constitution, along with three sections of the N.C. 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 N.C. district attorneys as a defendant class in the case.

“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,” ACLU lawyers argued. “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,” according to the modified motion. “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 pursuant to Federal Rules of Civil Procedure. …”

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.

“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.”

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