RALEIGH — The American Civil Liberties Union of North Carolina (ACLU-NC) has filed a class-action lawsuit in federal court in an attempt to block a new state law raising penalties on rioting and civil disorder that will take effect on Dec. 1 of this year.
In what appears to be a “sue and settle” type lawsuit, the ACLU-NC does not name House Speaker Tim Moore (R-Kings Mountain) or any legislative leaders, instead naming various Democrats as defendants — North Carolina Attorney General Josh Stein, Durham County District Attorney Satana Deberry, Guilford County District Attorney Michelle Crump and Wake County District Attorney Lorrin Freeman.
A “sue and settle” refers to a lawsuit filed by a party with the goal of a typically plaintiff-favorable settlement being negotiated outside of the courtroom and is oftentimes used to get around a rulemaking process, or, in this case, a law.
The ACLU-NC’s 40-page complaint filed in the U.S. District Court for the Middle District of North Carolina is a facial challenge to the law, meaning the lawsuit is claiming the law is either unconstitutionally overbroad or vague and should therefore be blocked. The lawsuit claims the law “violates the First and Fourteenth Amendments to the United States Constitution and article I, sections 12, 14, and 19 of the North Carolina Constitution.”
The lawsuit centers on House Bill 40, titled “Prevent Rioting and Civil Disorder,” which passed both chambers of the legislature with Democrat support and became Session Law 2023-6 at the end of March without Gov. Roy Cooper’s signature.
The bill was filed and sponsored by Moore. While Cooper did not issue a veto, he did make a short statement rationalizing why he would not sign the bill.
“I acknowledge that changes were made to modify this legislation’s effect after my veto of a similar bill last year,” Cooper 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.”
Moore has not yet issued a statement on the lawsuit.
In the previous legislative session, Moore filed a nearly identical bill, and the measure was sent to the governor. Cooper, however, vetoed it.
Moore had filed the bill following the 2020 riots related to the death of George Floyd that caused widespread property damage and included cases of arson and looting in cities like Raleigh, Charlotte and Fayetteville. The law enforcement costs for the riots were more than $2.2 million statewide, and $725,000 was spent just to activate the state’s National Guard.
The ACLU-NC’s lawsuit also says the law overgeneralizes what constitutes a riot.
“This definition means that a participant in a larger ‘assemblage’ where violence or property damage occurs need not have personally incited, engaged in, threatened, or aided and abetted violence or property damage to be held criminally and civilly liable,” reads the ACLU-NC complaint. “It criminalizes mere participation in a demonstration — as well as other activities that North Carolinians have a fundamental constitutional right to engage in — where some members of the group threaten or cause property damage or violence. North Carolinians could be arrested and prosecuted under the Act even if their own actions were entirely peaceful.”
Under Session Law 2023-06, a riot is defined 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.”
Under the new law, the penalty for inciting a riot was increased from a Class 1 misdemeanor to a Class A1 misdemeanor. Other penalties in the law for engaging in rioting span from a Class 1 misdemeanor to a Class D felony. Persons willfully engaging in a riot that results in property damage of $2,500 or more, or serious bodily injury, was raised from a Class H felony to a Class F felony.
Two new penalties were added making it a Class E felony for persons willfully engaging in a riot where a death occurs during or because of the riot and a Class D felony where willful incitement of a riot is a contributing cause to a death occurring because of the riot.
The ACLU-NC argues that the incitement provisions run afoul of the First Amendment.
“All of these ‘urging provisions’ target mere advocacy of unlawful conduct in violation of the First Amendment as interpreted in Brandenburg v. Ohio, 395 U.S. 444 (1969). For this precise reason, the Fourth Circuit held a nearly identical provision of the federal Anti-Riot Act facially unconstitutional,” the ACLU-NC lawsuit states.
It is also now a Class H felony to brandish a dangerous weapon or substance during the course of a riot, however, that provision is not a target of the ACLU-NC lawsuit, nor are the provisions for an injured party or person with an injury to property to sue the violator for three times the actual damages sustained.
