RALEIGH, N.C. — A federal judge has dismissed a lawsuit filed by a civil rights group challenging North Carolina’s anti-rioting law, whose criminal penalties were raised last year by state legislators.
The American Civil Liberties Union of North Carolina sued over the law, after the Legislature increased punishments in response to protests against racial injustice and police brutality in 2020 that at times became violent.
In a dismissal order sought by attorneys for the state and three district attorneys who also were sued, U.S. District Judge Loretta Biggs ruled Tuesday that the law withstands challenges by the ACLU alleging that the language was unconstitutional through being both overbroad and vague.
Biggs cited in large part previous state appellate court rulings examining previous versions of the anti-rioting law that she declared protects free speech and peaceful protestors whom the ACLU feared could be wrongly arrested.
“This Court concludes that the Anti-Riot Act does not criminalize a substantial amount of protected expressive activity relative to the Act’s plainly legitimate sweep,” wrote Biggs in her order released Wednesday. The decision, barring an appeal, would uphold the law’s enforcement, paving the way for the higher penalties to become enforced permanently.
While demonstrations in North Carolina following George Floyd’s death were largely peaceful, Republican House Speaker Tim Moore and others championing the changes said the laws didn’t deter rioting and looting in downtown Raleigh in June 2020.
Democratic Gov. Roy Cooper, who had successfully vetoed a similar bill in 2021, allowed the 2023 bill with the more severe penalties to become law without his signature. Several Democrats along with the GOP legislators in the General Assembly majority had supported the legislation last year, raising the likelihood that any Cooper veto would have been overridden.
The lawsuit considered by Biggs, who was nominated to the bench by then-President Barack Obama, focused on the law’s definition of a riot, which was unchanged by the new legislation.
But the ACLU argued the definition was so vague and overbroad that its employees or members advocating in protests otherwise protected by the U.S. and state constitutions could be arrested and subject to criminal and civil penalties simply by being near violent activity.
The law says a riot involves an assembly of three or more people that engages in or threatens disorderly and violent conduct to the point it causes injury or damage, or creates a “clear and present danger” of injury or damage.
Lawyers for state Attorney General Josh Stein, a Democrat and lawsuit defendant along with the DAs, wrote in legal briefs that the state ACLU was wrong to argue that its members could be prosecuted for participating peacefully in a protest.
A 1975 state Supreme Court opinion rejected that possibility, Stein’s lawyers said, and a provision added to the 2023 version of the law states that the “mere presence alone” at an event where rioting takes place falls short of the evidence needed for a conviction.
Spokespeople for the ACLU and legislative leaders didn’t immediately respond Wednesday to emails seeking comment.
The ACLU of North Carolina had sued in April 2023, but it refiled its lawsuit in July after state legislators passed another law making additional minor changes.
The 2023 criminal changes raise criminal punishments or creates new crimes related to willingly participating in or inciting a riot.
Fines and prison time will increase, typically by a couple years or more, for protesters who brandish a weapon, injure somebody or cause significant property damage. The law also creates new crimes for protesters who cause a death or incite a riot that contributes to a death.
Business owners also will be able to seek compensation from protesters who damage property, equal to three times the monetary damage. And those accused of rioting or looting will also have to wait 24 hours before their bond is set.
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