Superior Court Judge Found Moral Monday Arrest Unconstitutional

News & Observer

RALEIGH — The acting Wake County district attorney plans to review hundreds of arrest cases from the protests at the N.C. Legislative Building in 2013, with the notion that the bulk of them will be dismissed.

District Attorney Ned Mangum announced his plans after he learned about a ruling by Judge Donald Stephens in Wake County Superior Court.

Stephens, the chief resident superior court judge in Wake County, ruled in an order signed Friday and released Monday that the constitutional rights of Leonard Beeghley were violated when he was arrested on June 17, 2013, as he demonstrated against the General Assembly’s new agenda.

Beeghley, a pastor at Pilgrim United Church of Christ in Durham, was one of more than 900 demonstrators arrested in summer 2013 outside the legislative chambers where state Senate and House members were adopting new laws and policies that took the state of North Carolina to the political right.

The ruling by Stephens was the first in Wake County Superior Court to address constitutional issues that have been challenged by protesters for the past year at the district court level.

Stephens’ ruling came in the wake of two similar rulings in Wake District Court, where hundreds of demonstrators have been tried over the past year. Beeghley was one of the protesters who was convicted there and appealed his verdict to superior court.

Mangum said Monday that prosecutors have no intention of appealing Stephens’ ruling in the Beeghley case. Though most of the cases borne out of the “Moral Monday” rallies that happened weekly at the N.C. Legislative Building in summer 2013 are similar, Mangum cautioned that a blanket dismissal might not happen because each has its own set of facts.

After the superior court ruling and the recent district court decisions, Mangum said, “It does appear it would affect our ability to be successful in lots of the 2013 cases. I’m not going to keep trying cases that we have no chance of winning.”

Though Mangum did not have precise numbers, he speculated Monday that nearly 600 cases from the demonstrations in 2013 are pending at the trial stage or on appeal.

Since the trials started late last summer, some of the protesters have been found guilty. Others have been acquitted, and others had their cases dismissed.

The varied verdicts from the early trials offered a portrait of a justice system where legal strategies, personalities and the slightest difference in evidence can affect the outcome of a case.

Defense attorneys representing the demonstrators argued in each case that the constitutional rights of the protesters had been violated. But it was not until June, when the U.S. Supreme Court struck down a Massachusetts law governing protest-free zones around abortion clinics, that two Wake County District Court judges issued written rulings explaining their orders for dismissal.

Clarity from U.S. Supreme Court

The justices at the country’s highest court struck down a Massachusetts law that had allowed wide protest-free buffer zones around abortion clinics. In their unanimous decision, the justices said attempts to create spaces on public property where protesting is not allowed does not withstand constitutional scrutiny. They were asked to strike a balance between public safety and free speech.

After that ruling, Judge Joyce Hamilton, a retired district court judge who has presided over the bulk of the General Assembly protesters’ trials, threw out five cases from July 15, 2013. Her reasons for doing so were based largely on the Supreme Court ruling.

Hamilton issued a written order in which she stated that General Assembly police “failed to explore less restrictive means” to deal with the disturbance that law enforcement officers contended had been created by the thousands gathered inside the Legislative Building.

Hamilton wrote that the “orders to disperse were not narrowly tailored” and therefore constituted an “unconstitutional burden” upon the demonstrators’ rights “to peacefully assembly and speak.”

Anne Salisbury, a retired district court judge appointed recently by the state Administrative Office of the Courts to preside over “Moral Monday” cases, followed with a similar ruling.

Since then, lawyers have tried to persuade Mangum, a Wake County District Court judge who is acting as the Wake district attorney through the end of the year, to dismiss all charges resulting from the rallies. Though he was aware of the rulings in district court and told attorneys and others he would weigh whether it was best to continue prosecutions with all the constitutional issues at play, he did not agree at that time to issue a blanket dismissal of the cases.

“We felt it was important to have a case tried in Superior Court,” Mangum said Monday.

Defense praises ruling

In North Carolina, district court judges are not obligated to provide their reasons for rulings because the lower courts are not courts of record. Proceedings there are not recorded and the judge makes decisions largely on memory.

District court cases can be appealed to N.C. Superior Court, where proceedings are recorded by a court clerk and evidence is preserved for appeals.

Stephens’ ruling was similar to Hamilton’s. He wrote that though General Assembly police acted professionally, their orders to disperse were not narrowly tailored and violated Beeghley’s constitutional rights.

Stephens pointed out that the U.S. Supreme Court ruling cited in his order did not exist in 2013 when General Assembly police were making arrests based on building rules that had not been clarified in decades.

“The rule prohibiting ‘disturbances’ in the General Assembly is unconstitutionally overbroad, and vested Chief (Jeff) Weaver with wide discretion in the regulation of speech without providing measured guidance as to how to evaluate, regulate and restrict those exercising their First Amendment rights,” Stephens said in his ruling. “The Building Rules ignore Constitutional limitations on regulating or restricting assembly and speech and fail to narrowly tailor any such restrictions.”

Scott Holmes, a Durham defense lawyer and director of the N.C. Central University Civil Litigation Law Clinic, has argued numerous times for different protesters that General Assembly police could not just ask a whole crowd to leave without specifically tailoring their accusations to individuals about the laws they were believed to be violating.

The U.S. Supreme Court ruling in the Massachusetts case, Holmes said, “helped turn the tide” in favor of the protesters.

“With two district court judges and the chief resident superior court judge dismissing the cases on constitutional grounds, I agree that continued prosecutions are a waste of judicial resources,” Holmes added.

Al McSurely, a Chapel Hill lawyer who has represented the state NAACP, which organized the rallies, has argued that the arrest of people redressing their lawmakers violates both the U.S. and North Carolina constitutions. In his ruling, Stephens called the rotunda area where the protesters assembled outside the chamber doors of the N.C. House of Representatives and the N.C. Senate a public forum designated by the N.C. Constitution as a “place for people to assemble together to consult for their common good and instruct their representatives.”

The Rev. William J. Barber II, head of the state NAACP, praised Stephens’ ruling.

“Our legislators or any elected officials cannot quarantine themselves from the people in the ‘People’s House,’ ” Barber said.

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