Moral Monday Round Two

This week I was privileged to represent two defendants from the most recent Moral Monday arrests at the North Carolina General Assembly’s Rotunda (North Carolina’s Forum ,if you will) .  These two cases were the first cases that the State of North Carolina called for trial stemming from the 2015 Moral Monday demonstrations against the Tea Party legislation spewing out of the North Carolina General Assembly.  My clients were charged with second degree trespass upon the General Assembly building and violating that building’s fire code.  Both were found not guilty of the trespass charge and guilty of the fire code violation.  We appealed the convictions to Superior Court to be tried again before a jury.

You may remember that the original Moral Monday cases from 2013 ended up in the State voluntarily dismissing almost all of the 1000 or so defendants arrested in the Rotunda that year, including the remaining 18 clients of mine (I started out with 25, won seven, lost ten and appealed; the other eight never got tried before the mass dismissals).  The reason the State dismissed all those cases was because, while these cases were pending, the US Supreme Court case of McCullen v. Coakley was handed down.  This case found a Massachusetts law that created a buffer around abortion clinics to be unconstitutional. The buffer disallowed anti-abortion advocates from approaching people going into abortion clinics within a certain distance from the clinics.

In light of the McCullen decision, the Wake County, North Carolina District Attorney, who at that time was the Interim DA Ned Mangum – a well-respected District Court Judge who was appointed to the position to fill a gap between the retirement of the previous DA and the election of a new DA, a Republican, a very decent person and an excellent lawyer – made the gutsy and correct call to dismiss the charges.

Following the 2013 demonstrations, many lengthy  trials, some convictions, some acquittals, and the dismissals, the General Assembly announced that, in response to 2013, it would revise the legislative building’s rules and laws.

And it did.  For the worse.

You would think that the Republicans (their majority is huge in both houses) would have heeded the lessons from the dismissals of the 2013 cases and amended the rules to accommodate citizens wishing to participate in their democracy, make the place where our democracy is actually being carried out more accessible to the people whose democracy this is.  But no; they actually made it harder for people to come to their Forum to petition their government for a redress of their grievances.  They created even more restrictions, made it even harder for citizens to actually engage themselves in their governance.  And I found out exactly how when I tried my two clients’ cases.

The Republican leadership, having been given notice by the NC NAACP of the Moral Monday event in the General Assembly’s Rotunda, decided to bring the Fire Marshall to the legislative building a few days before the demonstration and have him perform an “inspection” of the  building.  The statutorily-mandated annual inspection of the building was not due for several months.  The legislature rammed through a law that changed the annual inspection to an as-needed inspection, and decided, you guessed it, that an inspection was needed. The Fire Marshall performed his “as-needed” “inspection” and, wouldn’t  you know it, concluded that there needed to be “zones” in the Rotunda that would be designated “egress” areas. Egress areas are areas that are set aside for the purpose of people being able to leave.  According to the Fire Code, “egress’ areas are to be kept clear of any number of specifically listed obstructions except, interestingly, people (after all, it would be hard for people to both use the egress areas and not be in the egress areas at the same time).  Nevertheless, on the day of the demonstration, the people – my clients and others – in these “egress” areas were told they had to move away, did not move away, and were arrested.

Not only is the timing of these newly-created egress areas interesting but so is the fact that in the 50-ish-year history of this building, never has anyone seen fit to question the lack of egress areas in the Rotunda.  Furthermore, there is not a shred of evidence that in the much larger 2013 demonstrations there was  even the suggestion that people were unable or hindered in any way when exiting the two legislative chambers, offices, public areas around the Rotunda or the Rotunda itself.

These egress zones were clearly created for the double purpose of restricting people’s access generally to the Rotunda and creating zones that automatically criminalized people’s presence in the Rotunda if they happened to be on the “wrong” side of a rope.

In a wonderful twist of irony, the trespassing charges against my two clients ended up in verdicts of not guilty because the legislative building’s police force – the tool of the Republican leadership that came up with this fire-code fiction – charged my clients not with trespassing by refusing to move out of the egress zones but with trespassing by exceeding the occupancy limit of the Rotunda. There was, to be annoyingly geeky and lawyer-y, a fatal variance between the charging instrument and the evidence.  And, in another wonderful little wrinkle for you, the statute would seem to suggest that the proper defendant in an exceeding-the-occupancy law would be not the people occupying the space but the authorities whose job it is to monitor the space – in this case, the very police force who charged my clients. They should have charged themselves.

I am proud and humbled to be allowed to represent these American heroes attempting to participate in their democracy, and I thank The Reverend William Barber and the North Carolina NAACP for all they do to advance responsible, progressive, inclusive, compassionate causes throughout our state and country.

Forward Together; Not One Step Back.