RALEIGH — A ReOpen NC protester who was arrested for violating a COVID-19 order issued by Democratic Gov. Roy Cooper has finally seen those charges dismissed and expunged after more than two years of court battles.
Monica Ussery, then age 51, was arrested by Capitol Police Officer Derick Proctor for allegedly violating Cooper’s executive order 121 dictating citizens to stay at home. She was also accused of violating the order’s “social distancing” requirements of staying 6 feet away from other people.
Ussery’s arrest happened during the first ReOpen NC protest held on April 14, 2020, in a parking lot near the General Assembly.
In an interview with North State Journal, Ussery noted she was arrested and processed by Capitol Police and that Raleigh police were also present that day.
She also said that throughout her case she had been denied access to body cam footage.
Initially, Ussery said law enforcement claimed there was no footage due to their request coming after the time period an agency is required to retain such footage. Then the story changed and her attorney was provided with a single clip. The story changed a third time and Ussery said she is now in possession of around 3 gigabytes of footage, however, it’s not all of the footage that was requested.
Complicating matters is the fact the judge hearing her case has placed a gag order prohibiting her from sharing it with anyone outside of those legally representing her. Ussery indicated to North State Journal that she is actively seeking to get that gag order removed.
Had that footage been turned over expediently, Ussery believes the charges likely would have been dropped much sooner.
“I believe we would have gotten through [the criminal case] a lot better and quicker had I been allowed that body cam footage prior to my first case,” Ussery said.
Outside of getting the body cam footage released, Ussery said she is taking some time off and will pursue a civil action, possibly in April 2023.
“Fighting the criminal aspect, that doesn’t always line up with fight the constitutional [aspect]” said Ussery. “Preserving the constitutional right to peaceful assembly wasn’t the direction my attorneys wanted to take in court.”
She also intends to hold the arresting officer, Proctor, accountable for his testimony during her court proceedings for what she says is perjury in light of the body cam footage she now has in her possession.
Legislators quickly took notice of Ussery’s arrest.
The day after Ussery’s arrest, Sens. Warren Daniel (R-Burke) and Danny Britt (R-Robeson), who were co-chairs of the Senate Judiciary Committee at the time, sent a letter to Cooper demanding the governor clarify his order.
The letter noted people could gather in places of business if social distanced, but that law enforcement had not initially cited that in the arrest, writing that the “police department indicated that you, by executive order, have prohibited protesting itself.”
When the arrest was questioned on social media, the Raleigh Police Department (RPD) responded in a tweet that “Protesting is a non-essential activity.” The tweet was later deleted on June 23.
RPD would later tweet a statement citing both the governor’s stay-at-home order and the Wake County emergency proclamation as justification for the arrest. In addition, the RPD statement said the Wake County district attorney is the “individual who decides language for failure to adhere” to those orders, as well as when charging is appropriate and what charges a person might face. The statement also directed any further questions be sent to the Capitol Police.
“If that is true, and if authorities are arresting people who protest because you prohibited protesting, that would be a grave overstep in your authority and would require immediate judicial intervention,” warned Daniel and Britt. “Can you please clarify whether your executive orders have prohibited the First Amendment right of North Carolinians to peacefully protest against your executive orders?”
Attorneys for both ReOpen NC and Ussery also responded by serving Cooper an Intent to Sue letter demanding Cooper clarify executive order 121, which failed to address the First Amendment rights of citizens such as protests and demonstrations.
Ussery’s attorney also demanded her charges be dropped since the state had violated her civil rights by arresting her. That wouldn’t come to pass until December 2022.
Cooper didn’t respond personally to either inquiry. Instead, William C. McKinney, the governor’s general counsel, responded on April 20.
In his response, McKinney said the governor’s executive orders “provide room for outdoor protests to continue.” He also wrote that “protests can continue as long as demonstrators observe the 6-foot social distancing requirement. That strikes us as reasonable and prudent.”
Observers noted that social distancing restrictions did not appear to have been placed on nor observed by protesters during the Black Lives Matter protests over the death of George Floyd that took place in June of that year. The majority of those protests that occurred in North Carolina, including in Raleigh, were costly, ending in rioting, arson and destruction of public and private property.
It is also worth noting that Cooper did not obey the same order Ussery was arrested for violating when, on June 1, 2020, he was filmed marching shoulder-to-shoulder with Black Lives Matter protesters around the Executive Mansion with his mask off, dangling from one ear.
