Government officials in North Carolina — from the governor to rank-and-file police officers — should be able to be held accountable for their actions enforcing emergency orders during the Covid-19 pandemic, the lawyer for a protester arrested in 2020 told the state Court of Appeals Wednesday.
“This case is fundamentally [about] freedom of speech, retaliation of speech, or suppression of protests,” attorney Anthony J. Biller told the court Wednesday. “... This isn't only a monetary damages case. This is a vindication of her constitutional rights.”
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The argument was the latest chapter in a long-running court battle over whether government officials mistreated people — including Biller’s client, Monica Ussery — during the Covid-19 pandemic through selective and politically motivated enforcement of 2020 emergency rules.
The fight started more than six years ago as a protest against mask-wearing and social-distancing rules during the pandemic and has since moved from the streets to the courtroom as part of this legal battle.
The lawsuit alleges that the statewide rules were unfair, unnecessary and worthy of being protested against but that Raleigh city government leaders and police officers “conspired in advance to suppress opposition to the government’s Covid-19 response.”
Ussery lost on similar arguments in federal court last week, but state and federal law differ in some key ways. The three state appeals court judges who heard the case didn’t immediately issue a ruling after Wednesday’s arguments finished; an opinion could be months away still.
Many Covid lawsuits
The case is among a long string of lawsuits that have challenged the pandemic-era orders. Some have focused on the power of the governor’s office in the future to issue similar orders in future emergencies. The case before the appellate court on Wednesday focuses largely on whether government officials should have immunity for enforcing such orders, or if they can be forced to pay people harmed by those actions.
Local, state and federal government officials generally have broad immunity for their official actions. But North Carolina allows lawsuits against them in limited cases, such as claims over alleged violations of constitutional rights.
As the pandemic was spreading around the world, most U.S. governors, including North Carolina’s Roy Cooper, instituted rules intended to stop the spread of the disease that ultimately killed more than 1 million Americans.
Locally, Cooper’s emergency orders limited public gatherings, required people to wear masks in public and forced some businesses to readjust their operations or temporarily shut down, among other changes. Some rules were instituted that spring and already phased out by the summer; others stayed in place longer.
Researchers found social distancing measures have been an effective tool in limiting the spread of Covid-19. As part of other lawsuits, Cooper has noted that scientific consensus on Covid-19 was relatively nonexistent at the beginning of the pandemic, so he and other leaders were making decisions based on the best evidence they had at the time, and sometimes changing the rules as the scientific consensus also changed on issues such as how the disease spread.
But Cooper, a Democrat, faced opposition to his Covid-19 executive orders from some Republican politicians and voters. The GOP-controlled state legislature would later pass laws limiting a governor’s ability to issue emergency orders in the future.
And in several other lawsuits in recent years state courts have tended to take a skeptical view of Cooper’s orders — all in orders handed down by Republican judges or GOP-majority panels. Wednesday’s argument was heard by a Court of Appeals panel consisting of two Democrats and one Republican. Some of the prior rulings against Cooper concerned his orders that closed or restricted churches, bars and a racetrack.
Cooper is now running for a seat in the U.S. Senate. His Republican opponent, Michael Whatley, has criticized Cooper over his handling of the pandemic, saying his orders were too strict. A spokesperson for Cooper’s campaign declined to comment on the case Wednesday.
Politically motivated enforcement?
At the height of the pandemic, conservative protesters coalesced around a group called ReOpenNC to protest Cooper’s orders and call for businesses, schools and churches to be allowed to reopen — and for masking and social distancing rules to be jettisoned.
One of them was Ussery, a Wake County woman who was the only person arrested at a ReopenNC protest in April 2020. She was arrested after everyone else left when ordered to do so by police officers.
Ussery’s 2020 arrest prompted the Raleigh Police Department to declare — in a since-deleted social media post that made national headlines — that “protesting is a non-essential activity.” The department’s conclusion at the time appeared to be that people’s First Amendment right to gather and protest against the government didn’t outweigh the government’s ability to ban public gatherings for public health concerns.
Biller on Wednesday called it a “draconian phrase” subject to “nationwide ridicule.”
Cooper’s office later issued a clarification to his emergency order, stating that protests were protected activities and should be exempt from the ban on mass gatherings. But Ussery argues that wasn’t enough to have protected her from being wronged — especially since Wake County District Attorney Lorrin Freeman, a Democrat, didn’t drop the charges against Ussery, despite Cooper’s clarification. Ussery alleges her treatment was motivated by politics, not the law.
“Ms. Ussery was the victim of various constitutional violations by state and municipal actors, including infringing on her right to protest, retaliation and selective enforcement based on her expressed, oppositional political viewpoint,” one of her briefs to the court says, asking that the court allow her to continue pursuing her claims against those officials.
Freeman is among the various government officials sued by Ussery, and who are asking for the lawsuit to be thrown out to their broad immunity protections. Freeman’s attorney, Joseph Finarelli, told the court Wednesday that Ussery could’ve sued Freeman using different laws, such as by citing wrongful prosecution, but she didn’t because “these facts don’t fit.”