Bill seeks to increase penalties for “rioters,” but advocates worry about threat posed to free speech

‘Biracial.’ ‘Artist.’ ‘Supporter of social justice.’ Nic Cassette could think of many labels describing his identity. ‘Rioter,’ however, was never one of them.

An Alamance County prosecutor, however, saw it differently. Cassette was among a group of demonstrators who were charged under the state’s rioting statute after a succession of demonstrations in Graham. On the day of his arrest September 8, 2020, Cassette marched with his fellow members of the community group Forward Motion Alamance to protest the sheriff’s office’s handling of the COVID outbreak in the county jail.

The protest came in the wake of a much publicized series of protests that championed the Black Lives Matter movement. Cassette’s group brought 99 black balloons symbolizing the 99 positive COVID cases, chanting in front of the jail, “We love you. We see you.” They were greeted with strong reaction from the jail cells — some of the incarcerated banged on the windows to acknowledge the demonstration.

Sheriff’s deputies ordered the demonstrators to evacuate the parking lot and step onto the sidewalk. Cassette, the last protester remaining in the parking lot, was escorted by several officers as he walked off to the side with a balloon in his hand.

Video taken at the demonstration, shows that deputies abruptly tackled him near the edge of the parking lot. Other protesters started screaming “Let him go!” Cassette was the first protester to be arrested that day and slapped with a charge of “incitement to riot.”

Part of the basis of the charge, according to prosecutors, was the testimony of deputies who claimed that prisoners inside the jail started banging on windows in response to the crowd outside.

Ultimately, Judge Lunsford Long cleared Cassette of the misdemeanor riot charge after examining photo evidence, but the prosecution left an indelible mark and shined a spotlight on an issue that has now found its way into state policy debates.

A proposal to toughen criminal penalties

Though Cassette was ultimately acquitted of the riot charge, people similarly charged could face even tougher punishments than are provided for in current law under a proposal making its way through the General Assembly.

On Monday of last week, the North Carolina House of Representatives passed a bill (HB 805) that would ramp up punishments for those who engage in or incite riots, with longer potential jail time, tougher pretrial release conditions, and higher civil liability.

Under current state law, a “riot” is a public disturbance either with three or more participants with “disorderly and violent conduct,” or involving “the imminent threat” of such conduct.

House Speaker Tim Moore, R-Cleveland, one of the four primary sponsors of the bill, which is entitled “Prevent Rioting and Civil Disorder,” said the bill strikes a balance between First Amendment rights and protecting public order and safety.

“Riots and looting devastated many North Carolina downtowns last year at a time when many small businesses were already struggling,” Moore said in a statement issued by his office. “This legislation will seek to deter future riots and increase penalties on those who engage in this anti-social anarchy.”

Moore said on the House floor that he first considered the bill last year. “The First Amendment does not protect those individuals who go out and destroy someone else’s property, to go out and assault someone, to go out and create a criminal activity under the guise of a protester,” he said.

Only introduced on May 3, the bill quickly moved through committees despite strong opposition from civil rights groups.

At the House Judiciary 4 Committee meeting, Moore said that he’s displeased with the fact that most rioters were only charged with a misdemeanor despite having created “mayhem.” Moore said the bill aims to eradicate “mob rule…whether it’s the left, whether the right, whether it’s destroying the downtown, or going in barging on into the U.S. Capitol.”

Currently, a person engaging in or inciting a riot is guilty of a Class 1 misdemeanor. The bill would elevate the latter offense (the one with which Cassette was charged) to a higher-level Class A1 misdemeanor.

In cases where the property damage exceeds $1,500 or serious bodily injury occurs, the bill would raise the punishment for participants in a riot from a Class H felony to a Class F felony, which would increase the maximum term of imprisonment from 25 months to 41 months. For those who incite such riots, the offense would be raised to a Class E felony, which carries a maximum sentence of 88 months (7+ years) incarceration — the same as assaulting law enforcement officers with a firearm and second-degree kidnapping.

When a riot results in a death, participants could be charged with Class E felony and those charged with incitement would face the prospect of a Class D felony and up to 17 years imprisonment, the same as armed robbery and voluntary manslaughter.

The bill also ups penalties for assaults on emergency personnel by removing the requirement that physical injuries be incurred and raising the penalty to a Class H felony when an injury does take place.

An assault on a law enforcement officer or other emergency personnel, currently a Class I felony if physical injury arises, would be reclassified as a Class H felony without the necessary presence of injury.

Apart from criminal charges, the bill would allow property owners to sue and claim three times the amount of the actual damages, plus court costs and attorneys’ fees.

Before the House vote, Rep. Brandon Lofton, a Mecklenburg County Democrat won approval of amendment to the bill which clarified that an individual’s mere presence at a protest does not constitute a prosecutable crime. Raleigh’s News & Observer reported that Lofton took his 13-year-old and 15-year-old children to protests himself after the George Floyd killing on May 25, 2020.

The bill was passed 88-25 and sent to the Senate. All 25 ‘no’ votes were Democrats, including Lofton.

Opponents express concerns about free speech, racial justice, possibility of jail for days without initial hearing

Civil rights and civil liberties groups were swift to decry the proposal as an assault on freedom of speech and a step in the wrong direction in addressing the social ills that spurred last summer’s civil unrest. In a statement, ACLU of North Carolina director of policy and advocacy Daniel Bowes said the bill’s unnecessarily harsh penalties dissuade peaceful protesters, worsening the vague state riot laws that already punish protesters for destruction caused by others.

“We know that people of color are far more likely to suffer unfair and unnecessary harm when law enforcement is given broad discretion to arrest, charge, and severely punish people,” he wrote in a statement. “This will surely be the insidious legacy of HB 805 if the N.C. Senate fails to prevent its passage.”

“Very often the people who are in the streets are in the streets because we are being treated unfairly by law enforcement who has no accountability and runs around with immunity,” Dawn Blagrove, director of Emancipate NC said at a press conference.

Blagrove said the bill doubles down on the white supremacist ideology and subjects Black and Brown people as well as poor and other marginalized communities to second-class citizenry.

“This bill is designed to punish Black, Brown and marginalize people who have the audacity to push back against the status quo,” Blagrove said the overly broad definition of rioting offenses exposes protesters to heavier policing.

Cassette said the law enforcement officers treat people of color differently from whites during the protests against racism. He said these harsher sentences are not necessary if those in power answer to the demands of the community.

“The problem is not the people; It’s the lawless law enforcement,” Blagrove said. “And if they focus on those folks and fixing that problem, fixing the problem of institutional racism, fixing the problem of systemic racism, fixing the problem of our carceral system and how it exploits, pawns and obliterates Black and Brown communities…we wouldn’t need the Bill 805. Because we wouldn’t be in the streets, because we wouldn’t have to continue to demand for our humanity to be seen and recognized,” she continued.

Opponents also expressed concern that, in addition to enhancing penalties for those convicted of rioting or incitement, the bill would make it easier for people to be jailed prior to trial. Under the proposal, a judge, rather than a magistrate, would set the pretrial conditions of those who have charges laid out in the riot section. Magistrates are appointed judicial officials and work seven days a week. However, judges only hold court sessions on business days.

Rep. Marcia Morey, D-Durham, a former Chief District Court Judge, said on the House floor before the vote that she’s concerned about the bill’s proposed pretrial release policy, especially when an arrest is made late Friday through Sunday where no district court judge is available to hold court. Protests on weekends, she noted, normally have a higher turnout than weekdays, as some protesters can only take time to show up then.

Last fall’s “March to the Polls” protest in Alamance, for example, took place on a Saturday and those arrested could have been forced to sit in jail for at least two days before receiving a hearing under HB 805.

Nic Cassette’s lawyer, Jamie Paulen used to be a magistrate in Orange County. “The magistrate cannot set pretrial release conditions; that person sits in jail until the district court judge can set the release condition,” Paulen said. “That’s what the bill is doing, taking riot charges, and making it the same as domestic violence… school shooting and probation issues.”

She said it’s problematic for these protesters to stay in custody without being convicted.

Competing views from law enforcement officials

The North Carolina Sheriffs’ Association supports the bill, the organization’s Executive Vice President and General Counsel Eddie Caldwell wrote in an email.

Two of the four primary sponsors are or used to be law enforcement officers. Rep. Charles Miller, a Republican representing parts of Brunswick and New Hanover counties, is the Chief Deputy Sheriff in Brunswick County. He is still on active duty and said he experienced assault from protesters in Wilmington last year. At a committee hearing, he said, “I dodged two pieces of brick myself.” Miller said a firework mortar fell behind him. “It shook my inside.” He said deputies walked the peaceful protesters back safely. Another cosponsor, Rep. Allen McNeill, also worked in law enforcement.

Miller did not make himself available for an interview or comments after multiple emails and calls to his office from Policy Watch.

The Sheriffs’ Association support stands in contrast to the recommendations of a high-profile task force convened by Gov. Cooper last year in the aftermath of the protests that swept the nation.

The Governor’s bipartisan Task Force for Racial Equity in Criminal Justice is a group that consisted of a diverse array of lawmakers, judges, prosecutors, police chiefs, local officials, academics and advocates. It made four policy recommendations to facilitate peaceful protests — but all geared toward improving policing, including training and best practices. None was taken up by the legislature, the task force’s recommendation status tracker shows.

A national pattern targeting the right to protest

HB 805 was one of the newest additions to the five anti-protest bills in the state, according to a tracker by the International Center for Not-for-profit Law. These bills “constrain or narrow the means, methods, or venues used by individuals seeking to participate in or facilitate a peaceful protest.”

The five bills make North Carolina a leading state in the number of bills restricting protest rights, second to only Oklahoma and Minnesota.

Since the George Floyd killing, 95 anti-protest bills have been proposed in 35 states, a spike in number compared to the previous time frame, the anti-protest bill tracker indicates.

HB 805 bears some resemblance to a Florida bill championed and signed into law by Republican Governor Ron DeSantis that ratchets up penalties for public disorder. Billing the act as “holding those who incite violence in our communities accountable,” DeSantis proposed the bill in September 2020, according to a press release from his office.

A chilling effect on free speech?

For protesters and their supporters in Alamance County, the combination of their harrowing experiences last year and the new legislation has left them deeply concerned.

Nic Cassette’s wife Katie, for instance, was also arrested last year. Seeing her husband being arrested for the first time ever, she shouted at the deputies from a distance. She was arrested for profanity — officers said she used the word “fuck.” The District Attorney’s office soon dropped her charge. She was again arrested and charged in early May again with defacing a public statute. She said she simply bought crime scene tape and rolled the non-sticky tape around the fences encircling the Confederate monument in front of Alamance County Historic Courthouse.

Katie said however that the legal process to fight the case was draining. When Nic’s case was still pending, he applied for jobs. He said he had to explain about the riot charge to a potential employer who he never heard back from thereafter, though the charge was dismissed eventually.

Opponents have also raised the issue of innocent protesters and bystanders being swept up in mass arrests or being held accountable for the acts of others.

“What if the incarcerated people did break a window that resulted in more than $1,500 worth of damage?” said Katie Cassette. She worries that coincidences such as these could potentially incriminate someone like her husband.

“[In Alamance County,] I’ve never heard of a case where the magistrate has rejected a charge that one of the officers has tried to take out,” Paulen said it’s not uncommon for law enforcement officers to bring trumped-up charges to protesters and magistrates often side with them. “So, you know, you go to one of those events and you’re at risk just by being there.”

Faith Cook, was charged with misdemeanor riot in the “March to the Polls” protest on Halloween. Law enforcement officers pepper sprayed the crowd who allegedly “failed to disperse.”

Cook told Policy Watch in an interview last week that she coughed her way to the polls and voted, but soon got arrested when she was chanting “We are ready for change” on the microphone. Awaiting to argue her case in court, Cook told Policy Watch even misdemeanor is too high for charges she was facing.

Paulen said she’s also worried about the felony charge in the presence of weapons. It’s not uncommon for protesters to carry a pocket knife or brass knuckle, even though they’re not supposed to. A Graham protester who had a knife at a protest is charged with misdemeanor under an existing law governing weapons at parades.

La’Meshia Whittington, the deputy director of Advance Carolina said heightening the misdemeanor charges amounts to disenfranchisement. If a 16-year-old is charged with felony riot under the bill, they would be tried in adult court as Raise the Age law doesn’t apply to 16- and 17-year-olds. Such charges will affect their right to vote.

“How do you just determine who is a protester or rioter? In this sense, you’re leaving that discretion up to law enforcement,” Whittington said there’s a power imbalance already when legislators give the law enforcement officers whose brutality engendered the outcry the authority to pursue charges and arrest.

Nic Cassette rejects the argument advanced by some bill proponents that he and the perpetrators of the January 6 U.S. Capitol insurrection can rightfully be lumped together under the term “rioters.” “By them just raising the stakes on this charge I think it’ll be another stick for them to wave at people,” he said.