NC woman hopes 4th Circuit revives lawsuit over COVID protest arrest

A High Point woman is asking a federal Appeals Court to allow her to move forward with a lawsuit challenging her arrest during a 2020 protest in Raleigh against government COVID shutdown orders.

A trial judge dismissed Monica Ussery’s suit in June 2024.

She had been arrested near the governor’s mansion in April 2020 during a protest of then-Gov. Roy Cooper’s executive orders shutting down businesses in connection with the pandemic.

Ussery asks the 4th US Circuit of Appeals “to reject Defendants’ alarming position (and the District Court’s ruling) that the government can institute unprecedented lockdowns restricting every facet of people’s lives — including their fundamental rights to work, go to school, and attend church — while also illegalizing the citizenry’s right to protest these very same actions,” her lawyers argued in a brief Wednesday.

“The notion that there is no constitutional violation when police officers arrest the last remaining peaceful protestor (or ‘agitator’), standing alone in a vacant, public, government parking lot, who had not violated any posted rules or even the provisions of the Executive Order, as confirmed by the Governor’s counsel, is anathema to this nation’s core, fundamental principles,” Ussery’s lawyers added.

“The Court should also reject the notion that the pandemic somehow abrogated the clearly established right to protest peacefully, a bedrock principle, … which even the common citizen, journalist, and state representative understood,” the court filing continued.

Ussery targeted Cooper’s Executive Order 121, along with Wake County and Raleigh policies related to the early days of the COVID-19 pandemic.

“EO 121 , the Wake County Proclamation, and the alleged policy of the City of Raleigh that protesting is not an essential activity all arose during the early weeks of a global pandemic which, as Ussery has alleged, ‘turn[ed] the world upside down,’” wrote US District Judge Terrence Boyle in an order dismissing the lawsuit. “Ussery was arrested and prosecuted for violating the restrictions on mass gatherings outlined in EO 121 and subsequently charged with second degree trespass.”

“She alleges, for example, that EO 121 and the City of Raleigh ‘ s policy violated her First Amendment right to free speech. She further alleges that defendants retaliated against her for engaging in peaceful protest and publicly dissenting from the governor’ s policies and executive order, in violation of the First Amendment,” Boyle wrote. “In opposition to the motions to dismiss, Ussery also defines the rights violated at a low level of particularity, citing, generally, bedrock and fundamental First Amendment, due process, and equal protection principles.”

“But none of the cases on which Ussery relies, … include circumstances that resemble those present in this case: a newly effective executive order and proclamation placing limits on mass gatherings in order to slow the spread of a global pandemic,” the judge wrote. “For this reason, ‘courts across the country have addressed qualified immunity for government officials at the 12(b)(6) stage regarding Covid-19 measures and found government officials to be immune from suit in their personal capacities.’”

“This Court has been presented with no controlling case or consensus of non-controlling authority which would support a determination that every reasonable officer or state official would understand that enforcing EO 121 , the Wake County Proclamation, or the City’s alleged policy as against Ussery after the world had been turned upside down by a highly transmissible virus would violate her constitutional rights,” Boyle wrote.

State Public Safety Secretary Erik Hooks, Wake County District Attorney Lorrin Freeman, chiefs of the State Capitol and General Assembly police, the city of Raleigh, and former Raleigh Chief Cassandra Deck-Brown were among the defendants who asked Boyle to toss out Ussery’s lawsuit.

“This case arises from the Defendants’ perversion of the criminal justice system to suppress speech and retaliate against an individual who held a viewpoint disfavored by those in power,” Ussery’s lawyers wrote in a filing for Boyle’s court. “Declaring that ‘protesting is a non-essential activity’ and agreeing among themselves to ‘make an example’ of dissenters, Defendants adopted and implemented a policy designed to stifle public demonstrations against the government’s COVID-19 policies.”

“On April 14, 2020, as a group of concerned citizens gathered to do just that, Defendants found their ‘example’ in the person of Plaintiff Monica Ussery,” the court document continued. “As a reprisal for exercising her First Amendment rights to protest peacefully, assemble, and petition the government for redress, Ms. Ussery was arrested.”

“The pretextual reasons offered by Defendants — that she had violated the social distancing mandates of an Executive Order — were belied by the very circumstances of the arrest,” Ussery’s lawyers added. “At the time of her arrest, Ms. Ussery was standing by herself in an open air, uncovered, unenclosed public parking lot. Moments earlier, a police officer signaled for her to enter the parking lot.”

“On its face, the Executive Order she was charged with violating did not prohibit the conduct in which she engaged. Ms. Ussery’s arrest resulted from her constitutionally protected conduct rather than any infringement of the Executive Order, and no reasonable public official could have believed her arrest was lawful,” the court filing continued.

“But Defendants’ scheme to ‘make an example’ of would-be protestors was not limited to Ms. Ussery’s arrest alone,” her lawyers argued. “Over the next three years, Ms. Ussery endured repeated rights violations flowing from Defendants’ conspiracy, including the withholding of potentially exculpatory evidence, the filing of additional charges to punish her for defending herself, and the bringing of a baseless show cause action against her for conduct committed by a third party.”

“The unconstitutional animus motivating these actions is revealed by the very different ways in which Defendants treated similar protestors holding more favorable viewpoints,” Ussery’s court filing continued. “As with her initial detention and arrest, no reasonable public official could have believed such targeted harassment, retaliation, and selective enforcement for exercising her rights accorded with the Constitution.”

“Starting with her arrest and continuing through the punitive pattern that followed, Defendants violated Ms. Ussery’s clearly established rights under the First and Fourteenth Amendments to the United States Constitution, as well as her rights under Article 1, Sections 12, 14, and 19 of the North Carolina Constitution,” Ussery’s court filing added. “These rights are so firmly established, and Defendants’ infringement of them was so obvious, that even the common citizen recognized the unconstitutional attack on Ms. Ussery’s civil liberties.”

“Defendants’ attempts to shield themselves behind pretextual health and safety concerns is unavailing,” the court filing continued. “Their motions should be denied.”

Defendants in Ussery’s suit filed four separate motions in late December 2023 asking a judge to throw out the case.

Ussery filed suit in April 2023 in connection with her April 2020 arrest at a protest led by the ReOpen NC group. The group opposed COVID-related shutdowns based on Cooper’s executive orders.

Ussery originally targeted Cooper, the city of Raleigh, and state and local law enforcement officials for alleged violations of her First and 14th Amendment rights. As the case moved forward, Ussery dropped Cooper as a defendant.

Complaints against the state public safety secretary, State Capitol Police chief, General Assembly police chief, and other state law enforcement officials are barred because of the 11th Amendment and sovereign immunity, argued Special Deputy Attorney General Matthew Tulchin of the NC Justice Department.

“Even if Plaintiff could assert claims against the State Defendants, those claims necessarily fail because Plaintiff has not alleged any actions taken by the State Defendants that could give rise to any claims against them,” Tulchin wrote. “[A] complaint … must include allegations of some wrongful conduct by a defendant that resulted in harm to the plaintiff. Indeed, a complaint must set forth sufficient facts and detail so that it is clear exactly which defendant is alleged to have committed what acts and to whom.”

Ussery “barely mentions the State Defendants individually by name, reference, implication, or otherwise – and it is impossible to discern any action taken by any of these defendants that would substantiate Plaintiff’s complaints,” Tulchin argued.

Freeman also cited the 11th Amendment in a separate court filing. “Plaintiff’s claims against Defendant Freeman in her official capacity seeking damages or declaratory relief for past conduct are barred by the Eleventh Amendment because she is a state official, and the State of North Carolina has not waived its Eleventh Amendment sovereign immunity,” wrote the special deputy attorneys general representing the Wake DA. Freeman also cited prosecutorial immunity.

“Because [the complaint]  lacks factual content giving rise to a plausible inference that the allegedly unconstitutional actions of any City employee were taken pursuant to official City custom or policy, Plaintiff’s claims against the City must be dismissed,” according to a filing from the Raleigh city attorney’s office.

The original lawsuit cited video evidence from law enforcement agencies responding to the April 14, 2020, ReOpen NC protest that led to Ussery’s arrest. That protest took place in a parking lot in the state government complex, less than one month after Cooper issued COVID-19 executive orders shutting down most businesses and public events.

“Through the videos Ms. Ussery learned that Defendants’ claims she was arrested for purposes of public health were false and pretextual,” according to the complaint. “Three was no discussion of ensuring adequate spacing between protestors. The only discussion was about punishing agitators so that they would not return to further protest Defendants’ lockdown orders.”

“Defendant’s actions on April 14, 2020, were not to protect public health or to make sure protestors stayed at least six feet apart from each other,” Ussery’s lawyers wrote. “To the contrary, Defendants intended to and conspired to punish and make an example of ‘agitators’ for exercising their First Amendment rights to protest Governor Cooper’s lockdown orders.”

Ussery faced arrest as other protesters were leaving the scene that day. She had planned to take photos of cars as they departed, according to her complaint. She was standing by herself when officers arrested her. The complaint notes that prosecution of Ussery continued after government officials permitted other forms of protest in the same location. The prosecution outlasted Cooper’s shutdown orders.

A District Court judge convicted Ussery in June 2021 of criminal trespass and violating a COVID executive order. She was fined $300. Ussery appealed, and the case eventually was dismissed.

The post NC woman hopes 4th Circuit revives lawsuit over COVID protest arrest first appeared on Carolina Journal.