RALEIGH — A Superior Court judge offered mixed rulings in a civil rights lawsuit brought by a Reopen NC protester by dismissing certain defendants while keeping others in play and allowing part of the case to proceed.
The case involves Monica Ussery, who sued then-Gov. Roy Cooper over her arrest during the first Reopen NC protest in April 2020. She was arrested for violating Cooper’s COVID-19 Executive Order 121 that restricted public gatherings.
Ussery claims officials violated her constitutional rights during her arrest at the protest. Ussery was convicted of second-degree trespassing and violating Cooper’s order. She later accepted a deal to have charges dismissed and expunged after completing community service.
As Cooper’s successor, Gov. Josh Stein became a defendant in the case, as did N.C. Department of Public Safety Secretary Eddie Buffaloe, who took over for Erik Hooks.
Superior Judge George Hicks granted the motion to dismiss “with prejudice” filed by Cooper/Stein, Hooks/Buffaloe, Chief of the N.C. General Assembly Police Martin Brock and Tito Fink, an N.C. State Capitol Police officer.
That motion was granted by the court under “failure to state a claim,” which means the facts presented by Ussery did not have enough of a legal basis to support the remedies she is seeking.
“Plaintiffs conspiracy claim fails because, even assuming her allegations demonstrated there was an agreement amongst all Defendants, she failed to allege any facts that plausibly show an agreement amongst all the defendants to deny her constitutional rights or any illegal overt acts in furtherance of such a conspiracy,” Hicks wrote.
State officials involved had argued her claims were implausible, claiming Cooper’s executive order regulated conduct rather than speech, underscoring the order was designed to “protect public health” during the pandemic.
The motions to dismiss denied by the judge included the current State Board of Investigations Director Roger “Chip” Hawley. At the time of Ussery’s arrest, Hawley was the chief of the North Carolina State Capitol Police, and he was later installed as Cooper’s pick to head up the N.C. State Bureau of Investigation.
The other denied dismissals included N.C. State Capitol Police Officer Derick Proctor, former Raleigh Chief of Police Cassandra Deck-Brown, former Raleigh Police Captain Dedric Bond,and the City of Raleigh.
Ussery had also filed a federal lawsuit, which was dismissed. She has appealed in that case to the 4th U.S. Circuit Court of Appeals.
During much of Ussery’s three-year legal battle, the Raleigh Police Department withheld bodycam footage. Once the footage was obtained, the judge issued a gag order, blocking Ussery from sharing it beyond her legal team. The order, however, did not cover others involved in the case. Independent journalist Stephen Horne posted the footage on social media.
The footage showed Raleigh Police officers joking about planned arrests to “make an example” of some protesters to make others disperse. Officers also were seen in the video laughing about COVID-19 mask use to “support” the idea that the protest was a “public health hazard.”
