Cooper likely to be dropped from COVID protester’s federal lawsuit | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Gov. Roy Cooper could be dropped as a defendant in a federal lawsuit challenging an arrest during a 2020 COVID shutdown protest in Raleigh. A court filing Friday proposes removing Cooper's name and adding unnamed Raleigh police officers to the list of defendants linked to the arrest.

    Monica Ussery of High Point filed suit against the governor and state and local law enforcement officials in April. Ussery challenged her arrest during an April 2020 ReOpenNC protest at the state government complex.

    "Ussery moves for leave to file a Second Amended Complaint for the purpose of clarifying and expanding upon her claims, dropping a party, providing additional factual detail related to the Constitutional violations she endured and adding new claims under the North Carolina Constitution," the plaintiff's lawyers wrote. "Ussery's proposed Second Amended Complaint (a) clarifies the infringing official policy and identifies the decisionmakers involved in promulgating such policy, (b) adds a new count under Articles 12, 14, and 19 of the North Carolina Constitution, (c) adds additional factual details related to Ussery's equal protections and First Amendment claims, (d) drops Governor Cooper from the lawsuit, and (e) asserts allegations against John Doe Raleigh Police Officers."

    The latest court filing reminds the court of Cooper's link to Ussery's case.

    "This case arises out of the political protests precipitated by Governor Cooper's Executive Orders shutting down and locking down the State of North Carolina in March 2020 in response to the COVID-19 pandemic," according to the court filing. "Plaintiff Monica Faith Ussery opposed Governor Cooper's actions and joined other dissenters at a protest on April 14, 2020, organized by ReOpenNC to exercise her First Amendment rights to protest peacefully, assemble, and to petition the government for redress."

    "Ussery was arrested, purportedly for violating Executive Order No. 121 and a City of Raleigh policy that declared that 'protesting is a non-essential activity.' However, the reality of her arrest was that she was arrested to set an example and was targeted as an agitator due to the content of her speech," the document continued.

    "Ussery filed this suit seeking to vindicate her fundamental rights and has brought claims under 42 U.S.C. § 1983 for violations of the First and Fourteenth Amendments and a claim for conspiracy to deprive Ms. Ussery of her state constitutional rights under the North Carolina Constitution, Art. 1, §§ 12, 14, and 19."

    The cited state constitutional provisions address the rights of assembly and petition, freedom of speech, and the "law of the land clause," along with the state's equal protection clause.

    The original lawsuit cited recently released 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."

    In addition to Cooper and the city government, the original complaint named as defendants state Public Safety Secretary Erik Hooks, Wake County District Attorney Lorrin Freeman, Raleigh Police Chief Cassandra Deck-Brown, NC State Capitol Police Chief Roger "Chip" Hawley, NC General Assembly Police Chief Martin Brock, Raleigh Police Capt. Dedric Bond, and two State Capitol Police officers.

    "Bond admitted holding a conference call with Defendants Freeman, Brooks [sic], Hawley, and the Secretary of State to plan how to stop the protest and they reached an agreement on how to proceed," according to the complaint. "Bond stated, 'Avoid parents with kids. ... What I want to do is make an example out of [agitators]. I'm hoping we'll start locking up a few of the agitators that the rest will automatically disperse. ... We had a long conversation with Lorren [sic] Freeman and when you see the videos that are already online and everything, it's obvious that we just can't allow that to continue. ... And then we already have intel that they're planning on doing this again next Tuesday so it's our opportunity to get it right this time and hope we won't have to go through the same thing again next Tuesday.' Bond indicated he did not want the crowd to grow and wanted to start 'locking up people as soon as possible.'"

    "These statements make clear that 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.

    "As a result of her conviction and then appeal, Ms. Ussery has amassed legal bills, missed time from work, had to travel from her home in High Point, to Raleigh, North Carolina, multiple times, has suffered embarrassment, physical and emotional distress, and the prolonged legal process caused significant strain on and the ultimate end of Ms. Ussery's marriage," according to the complaint.

    The complaint asks a federal judge to declare that the defendants violated Ussery's constitutional rights. She seeks "all appropriate damages," along with the costs and expenses associated with the suit.