ACLU warns NC cities of constitutional rights violations

The ACLU of North Carolina sent letters to several North Carolina cities, including Asheville, warning local officials of legal and constitutional concerns to their response to ongoing protests against police brutality and violence. The ACLU will be closely monitoring the municipalities’ responses and will hold cities accountable should future violations occur.

The following letter was sent to Asheville Mayor Esther Manheimer, City Manager Debra Campbell, Asheville Police Chief David Zack and the members of Asheville City Council concerning violence against protesters:

Dear Mayor Manheimer, Chief Zack, City Manager Campbell, and City Council Members:

We write concerning the City of Asheville’s response to the ongoing protests over the killing of George Floyd. Over the past week, we have been profoundly disturbed to hear repeated accounts and see numerous images of Asheville police taking violent action against protestors, in blatant violation of state and federal constitutional protections.

The First Amendment guarantees the rights to free speech, peaceful assembly, and petition of the government for redress of grievances. The Supreme Court of the United States “has frequently reaffirmed that speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (quotation marks omitted).

The Fourth Amendment prohibits unreasonable search and seizure, which includes the use of excessive force by law enforcement. Any use of force must be objectively reasonable given the circumstances. This rule applies equally to measures that some police departments categorize as “non-lethal,” such as pepper spray, rubber bullets, and tasers. See Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 905 (4th Cir. 2016). The power of these devices to inflict serious pain, injury, and even death is well-known.

Over the last two weeks, we have watched with grave concern while protestors across the country—anguished over yet another police killing of an unarmed Black man—have been gassed, beaten, arrested, and shot at by militarized law enforcement.

In Asheville, news reports, protestors, and public officials have confirmed the use of tear gas and rubber bullets against protestors who did not present any threat of imminent harm. On Tuesday, police officers used force against volunteer medics and destroyed their station containing water, food, and emergency medical supplies. Such violence and destruction only compound the tragedies at the heart of the protests. These measures are clearly disproportionate and unreasonable, and threaten to chill the speech of people who wish to be heard on a matter of immense public concern.

This moment calls for empathy and moral leadership from public officials—not a violent crackdown on the exercise of constitutional rights. We demand an end to the use of force, including but not limited to teargas, rubber bullets, and “flash bangs” against protestors. In the days and weeks that follow, we will be monitoring the situation closely to ensure that city officials are held accountable for any constitutional violations.

Sincerely,

/s/ Kristi Graunke Legal Director

/s/ Robert T. Stephens Director of Political Strategy and Advocacy

/s/ Chantal Stevens Interim Executive Director

The following letter was sent to Manheimer and the Asheville City Council in regards to the citywide curfew:

Re: Asheville Curfew

Dear Mayor Manheimer and Asheville City Council Members:

We write to raise legal concerns about Asheville’s curfew, already in effect for four days and is apparently of indefinite duration. This curfew, which covers the entire city for ten hours each night, is an overbroad restraint on speech and the right to petition, and invites arbitrary and discriminatory enforcement against communities of color, in violation of the U.S. and North Carolina Constitutions.

I. The Curfew Violates the First Amendment and Article I, Sec. 12 of the North Carolina Constitution.

The Asheville curfew suppressing all political protest after 10 p.m. violates the First Amendment and Art. I, Sec. 12 of the North Carolina Constitution. Its blanket restriction on all movement within the city limits during those hours is not narrowly tailored and also violates the Constitution’s protection for freedom of movement. Overly broad curfews imposed by local leaders indefinitely suspend free speech at a time when people are taking to the streets to exercise their constitutional rights to protest racially-discriminatory police violence. Notwithstanding the exemptions, the curfew forbids expressive activity at the core of the First Amendment. It is well established that, as a general rule, the Government ‘may not suppress lawful speech as the means to suppress unlawful speech.’” Packingham v. North Carolina, 137 S. Ct. 1730, 1738 (2017). Put simply, the curfew’s suppression of protests and demonstrations occurring after 8 p.m. anywhere within city limits in the name of preventing potential crimes violates the First Amendment.

The curfew is overbroad under the First Amendment if “‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010). In order to represent the least restrictive means to advance the city’s compelling interests, a curfew must have a “narrow scope and comprehensive list of exceptions”, Schleifer by Schleifer v. City of Charlottesville, 159 F. 3d 843, 852 (4th. Cir. 1998). Here, the exemptions are not narrowly tailored to further the city’s legitimate interest in maintaining public safety and do not allow for ample alternative channels of communication. Instead, a curfew that covers the entire city during a substantial portion of time has the effect of prohibiting a vast array of lawful speech and constitutionally protected conduct completely unrelated to the planning or commission of crimes.

The right to assembly and petition under Art. I, Sec. 12 of the North Carolina Constitution, which at minimum duplicates “the right to freedom of association embodied within our federal Constitution”, Feltman v. City of Wilson, 767 S.E.2d 615, 620 (N.C. Ct. App. 2014), is also being violated by this curfew.

II. The Curfew Violates Due Process and Equal Protections under both U.S. and North Carolina Constitutions.

Both the Fifth and Fourteenth Amendments prohibit deprivations of liberty without “due process.” Due process requires that its most essential element, notice, “be of such nature as reasonably to convey the required information.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). “A statute is unconstitutionally vague under the Due Process Clause if it ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.’” Martin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012).

By covering a large swath of lawful conduct, this curfew is overbroad, and also violates the fundamental rights to free movement and access to public spaces. The Due Process Clause of the Fourteenth Amendment protects the “freedom to loiter for innocent purposes” and to “remove from one place to another according to inclination.” City of Chicago v. Morales, 527 U.S. 41, 53 (1999) (plurality opinion). “In all the [s]tates from the beginning down to the adoption of the Articles of Confederation the citizens thereof possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective [s]tates, to move at will from place to place therein, and to have free ingress thereto and egress therefrom . . .” United States v. Wheeler, 254 U.S. 281, 293 (1920). See also Smith v. Hill, 285 F.Supp. 556, 558 (E.D.N.C. 1968) (finding that vagrancy ordinance unconstitutionally restrained freedom of movement as well as being unconstitutionally vague and overly broad). This overbroad curfew applies to all sorts of innocuous, basic conduct such as going to the store or taking a walk, and effectively places all residents, with extremely limited exceptions, under house arrest conditions for ten hours a day. While the government may impose restrictions on this right, any restrictions must both serve a compelling state interest and be narrowly tailored to accomplish that objective.

The Asheville curfew also violates the right of individuals to equal protection and due process under the law safeguarded under Art. I, Sec. 19 of the North Carolina Constitution. See White v. Pate, 308 N.C. 759, 765, 757 S.E.2d 302, 304 (1983); Patmore v. Chapel Hill, 233 N.C. App. 133, 137, 757 S.E.2d 302, 304 (2014) (noting parallel nature of state and federal equal protection guarantees and applicable legal frameworks). However, whereas the federal constitution provides only the “floor[,]” of minimum protections, the North Carolina Constitution goes beyond to “frequently give citizens . . . basic rights in addition to those guaranteed by the United States Constitution.” State v. Jackson, 348 N.C. 644, 648, 503 S.E.2d 101, 103 (1998); see also Corum v. Univ. of N. Carolina, 330 N.C. 761, 783, 413 S.E.2d 276, 290 (1992) (“We give our Constitution a liberal interpretation in favor of its citizens with respect to those provisions which were designed to safeguard the liberty and security of the citizens in regard to both person and property.”).

By making it unlawful to be present on public streets anywhere in the city, with limited exceptions, the curfew gives police too much discretion over whom to arrest and may lead to selective enforcement against communities of color. Combined with the aggressive show of military force and the troubling accounts of police using tear gas, batons, and rubber bullets against peaceful protesters we are witnessing around the country and in North Carolina, this curfew enables Asheville police to reenact the violence and brutality that are at the root of the protests. At a time when we need protest, discussion and debate more than ever, Asheville should be taking steps to facilitate this constitutionally protected and most fundamental of American values rather than curtailing it.

We call on you to rescind the proclamation declaring a city-wide curfew and restore to city residents the full protections secured by the Constitution and other laws.

Sincerely,

/s/ Kristi Graunke

Kristi Graunke
Legal Director (kgraunke@acluofnc.org)

/s/ Irena Como

Irena Como
Senior Staff Attorney (icomo@acluofnc.org)

cc: Brad Banham, Asheville City Attorney