The citizens of Charlotte possess no right to protest. Rather, their ability to demonstrate is granted by the police as a matter of grace. And depriving people of this liberty is as easy as 1-2-3.
That’s the take-away from a presentation made last week to City Council by Jessica Battle, a city attorney who has defended Charlotte-Mecklenburg Police Department in court against charges the department violently ambushed citizen-protesters with chemical weapons this summer.
Battle’s task last week was to educate Council members on the scope and meaning of the First Amendment and the freedoms it protects, though her talk was really a detailed explanation of the manner by which the police can deprive people of those freedoms.
Step One in stripping people of their right to protest requires police officers to identify allegedly illegal behavior by at least some protesters.
“Once an assembly becomes unlawful by violation of any state or federal law, law enforcement can take necessary action to arrest individuals, disperse that event, etc.,” Battle explained to Council. “When these demonstrations violate a state or federal law, the assembly becomes unlawful.”
To make her meaning perfectly clear, Battle told Council that when she says any alleged violation of the law transforms an assembly into an unlawful one, “we truly mean anything.”
Consider a few of the “anythings” in state law that would, according to CMPD’s attorney, empower the police to declare a protest unlawful:
N.C. Gen. Stat. § 20-174 makes it unlawful to walk in the street or cross a street at a place other than a crosswalk, something that occurs at almost every protest.
N.C. Gen. Stat. § 20-174.1 makes it unlawful to impede the flow of traffic on a street, another common occurrence at demonstrations.
N.C. Gen. Stat. § 14-223 makes it unlawful to “resist, delay, or obstruct” a police officer’s work, a notoriously broad prohibition.
N.C. Gen. Stat. § 14-277.2 makes it unlawful to bring a “dangerous weapon” to a demonstration. “Dangerous weapon” is defined as an “object capable of inflicting serious bodily injury or death when used as a weapon,” a definition so expansive as to include anything the police want to label a dangerous weapon, including bottles of water. And look closely: The law doesn’t require that a protester actually be using the object as a weapon, only that the protester possess an object that could be used as a dangerous weapon.
N.C. Gen. Stat. § 14-399 makes it unlawful to litter, which inevitably occurs at every protest.
As a practical matter, then, state law gives CMPD all the “anythings” it needs to declare an assembly unlawful whenever the department so desires.
Local ordinances give CMPD even more ammunition with which to attack the right to protest, making it unlawful to ride a skateboard in the street; ride an electric scooter on the sidewalks of certain uptown streets; ride on the handlebars of a bicycle; have more than one person ride on an electric scooter; litter; participate in the production of “any unreasonably loud and disturbing noise”; protest with 50 or more people without giving advance notice to the police; and protest with signs of certain sizes or materials.
As with state law, if CMPD wants to declare a protest unlawful as a result of “any” allegedly illegal activity, the department will find ample provisions in the city’s ordinances to allow it to do so.
If Step One in eliminating the people’s right to protest is to identify “any” allegedly illegal activity by some protesters, Step Two is to use those individuals’ allegedly unlawful behavior to taint an entire protest.
Battle explained that allegedly unlawful actions by a small group of individuals can result in CMPD attempting to disperse an entire demonstration, including those who have not engaged in any illegal activity. “We can’t always cherry pick violators out and pull them aside. We might have to take enforcement action that affects a larger part of that group” she said.
Battle went so far as to say that state law’s definition of rioting means “if there’s a group of 3,000 and three are participating in disorderly conduct, that could be described as a riot.”
(An aside: Battle affirmatively misrepresented the scope of the anti-rioting statute to Council. A slide included in her presentation characterized the law as applying whenever there exists “disorderly or violent conduct.” The statute, in fact, defines rioting as “disorderly and violent conduct.” The state’s supreme court has concluded on multiple occasions that violence is a necessary component of a riot under state law. As the court explained in the 1975 case of State v. Brooks, for example, “A public disturbance involving three or more people, no matter how noisy or boisterous, cannot, under the statutory definition, be a riot unless violence or the threat of immediate violence which poses a clear and present danger to persons or property is present.” In the law as actually written, violence is a component of a riot. In Battle’s incorrect telling, there is such a thing as a non-violent riot.)
Assigning criminality to a group because of the actions of a few leads to Step Three in CMPD’s campaign to eliminate the people’s right to protest: Order the protest to disperse as a result of the entire group’s imputed criminality, and then accuse anyone who remains of violating a state law that requires people to disperse when ordered to do so, thereby transforming every non-violent, lawful protester into a suspected criminal.
Step One: Spot “any” alleged legal violations.
Step Two: Assign liability for such violations to the protest as a whole.
Step Three: Order the protest to disperse as a result of its imputed criminality, reserving the right to arrest and charge anyone who doesn’t leave.
The practical meaning of these legal provisions and CMPD’s interpretation of them is that the right to protest in Charlotte is ephemeral, one that can be denied or abridged by the police for “anything.”
Our liberty exists at the mercy of the cops. That the police sometimes choose to exercise their discretion to allow us to protest does not render us any more secure in our freedom. It only confirms the power that law enforcement ultimately wields over us.