Attorneys for ReOpen NC sent a letter of demands to Governor Roy Cooper

Raleigh, NC – Attorneys for ReOpen NC, a grassroots organization that is holding protests in defiance of the North Carolina Stay-at-Home executive order, sent a letter to Governor Roy Cooper. The letter demands that he ease up on the orders and ensure that no one will be thrown in jail for exercising their 1st Amendment right to free speech and protest.

The ReOpen NC organization is planning second round of protests this Tuesday starting at 11 am. Group leaders have asked to bring signs stating #REOPENNC and #WeThePeople. Protestors should follow social distancing expectations to avoid creating distraction from the ReOpenNC message. No rioting or arrests. ReOpen NC is a peaceful action group. ReOpenNC leaders are working hand in hand with Raleigh PD.

Anthony J. Biller

ReOpen NC created a private Facebook page on April 7 and now has more than 58,000 members as of this writing (4.19.20).

The letter was sent to Governor Roy Cooper, Wake County commission chair Greg Ford, state attorney general Josh Stein, and Lee Lilly, director of legislative affairs for the governor’s office by Anthony J. Biller of Michael Best law firm.

Re: Urgent Request for Clarification of Quarantine Orders

U.S. Const. Amend. I; N.C. Const. art. I, §§ 12, 14

Dear Governor Cooper and Commissioner Ford:

We have recently been retained by Kristen Elizabeth the co-founder of the ReOpenNC group and movement, and Monica Ussery, a member of that group. ReOpenNC is a grassroots citizen action group dedicated to advocating for a loosening of the economic and social restrictions placed on citizens of our State by your offices’ quarantine orders. At the time of this letter, ReOpenNC is a growing group of over 50,000 members, predominantly North Carolina citizens. We are writing to request that your offices immediately issue clarification guidelines that your various quarantine orders do not prohibit and should not be construed to prohibit political protests. In the parlance of your orders, the exercise of such fundamental rights are “essential activities.” Unfortunately, these broad orders have created a reasonable apprehension the exercise of such fundamental rights will lead to detention, arrest and criminal prosecution. We request such action by your offices by 2pm, April 20, 2020.

As you know, and as generally recited by your offices, commencing in early March 2020, the World Health Organization (“WHO”) and federal government declared COVID-19 a worldwide pandemic and severe public healthcare threat based on early estimates of its communicability, disease severity and mortality rates. The disease’s threat to public health were based on epidemiologic models that projected hundreds of millions of infections and millions of deaths worldwide over the span of a few months. There were immediate concerns worldwide that these demands would greatly exceed capacity of healthcare systems around the world. Highly aggressive quarantine measures were taken by several, but not all, countries in an effort to “flatten the curve” of the disease. Several of these measures included quarantine of all citizens.

On March 14, 2020, in response to the WHO and federal proclamations and emergency declarations, Governor Cooper relying solely on purported gubernatorial authority without the majority approval of the Council of State or the North Carolina legislature, issued Executive Order No. 117, which inter alia ordered the closure of all restaurants in North Carolina but allowed for carry-out, drive through and delivery services, and the closure of all bars. On March 27, again relying solely on purported gubernatorial authority, Governor Cooper issued Order. No. 121 (the “Order”), which, inter alia, orders all individuals residing in North Carolina to “stay at home” and prohibits all travel, except as otherwise allowed by the Order. The Order allows individuals to leave their residences and travel “only to perform” specific “Essential Activities” expressly set forth in the Order, such as for health and safety, to obtain necessary supplies, engage in outdoor activity, such as walking or hiking, or to engage in “Essential Businesses and Operations.” The Order further prohibits “Mass Gatherings” of over ten individuals meeting in a “confined indoor or outdoor space.” Specifically carved out from this prohibition are various facilities, including transportation hubs, medical facilities, and shopping centers. Despite excluding various activities and environments from the stay at home, travel restriction, and mass gathering provisions, the Order is silent on the citizens’ rights to engage in constitutionally protected activities, including, inter alia, the exercise of First Amendment free speech rights to assemble peaceably and to petition the government for redress.

Wake County enacted similar, yet considerably more restrictive prohibitions, on March 26, 2020. These restrictions severely curtail the movement of residents “on or about public places except for Essential Activities,” which include, for example, engaging in activities or performing tasks related to the health and safety of household members or obtaining goods and services from “Essential Businesses.” The Wake County order further prohibits the gathering of residents of “any number of people, including non-Wake County residents, occurring outside a single household or residential unit.” (Italics added.) Like the Governor’s Order, Wake County’s Order, dated March 26, 2020, and subsequently amended on April 15, 2020, provides no exclusion for constitutionally protected activities, including, without limitation, First Amendment activities.

A month later, as of April 18, 2020, worldwide deaths attributed in whole or in part to COVID-19 are reported to be approximately 157,468. Nearly 40,000 of those deaths are from the United States, with approximately half of U.S. deaths reported from the New York City/Northern New Jersey metropolitan area. At the time of this letter, there have been 172 COVID-19 related deaths reported in North Carolina, with an infection rate of 594/100000 (0.000594% population infection rate) and 17 death per million in the State. That is a population mortality rate of 0.000017%. The deaths are heavily weighted towards the elderly and those with underlying medical conditions. Reviewing the national death rates reportedly led one national commentator to observe that a male under the age of 40 has a better chance of dying from breast cancer than COVID-19. Further, North Carolina hospitals have not and are not under duress. To the contrary, personnel that work in Raleigh and Charlotte hospitals report less than 50% bed occupancy and there have been news reports of hospitals furloughing personnel due to a cessation of providing elective services. The same entities that promulgated the modeling that forecast a likelihood of millions of deaths, have now revised their models to show a likelihood of between 50,000 and 100,000 deaths in the United States this year. Make no mistake, our clients mourn these deaths, but also recognize that these casualty figures are in the range of a seasonal flu epidemic.

However laudable the goal, the economic and social consequences of the governmental response to the COVID-19 crisis have been and are real, concrete, and harmful. Yesterday The Washington Post reported that 22 million Americans have filed for unemployment since President Trump declared a national emergency in March. Here at home, the impact on North Carolinians has been similarly catastrophic. The News and Observer reported that during a news conference on April 8, Governor Cooper himself acknowledged the “overwhelming crush” of new unemployment claims as the number of newly unemployed North Carolinians soared to near 500,000. Many of these unemployed members of our community are some of our State and Wake County’s most economically vulnerable citizens. Many include members of working families and single mothers. Many of these people do not have the luxury of working from home. At the same time, the employers of these workers are watching businesses some spent a lifetime to build slipping away. Working from home is not an option for them either.

The social consequences of the COVID-19 response have been and continue to be substantial. The preamble of the North Carolina Constitution acknowledges God and “our dependence upon Him for the continuance of” our liberty for “us and our posterity.” With our fellow citizens reeling, processing the grief and trying to pick up the pieces, your orders have caused houses of worship to shutter their physical doors. Again, the burden falls disproportionately upon the poorest and most vulnerable among us who lack the modern staples of high-speed internet and smart phones. ReOpenNc’s desire to raise its collective voice on behalf of those deprived of their right to participate in the corporate worship of God, the dignity that comes from work, and the businesses many spent a lifetime building is entirely understandable, reasonable, and laudable.

ReOpenNC self-organized around the idea that, in light of the above, your quarantines should be lifted in whole or in part to allow North Carolinians to return to work and life activities, while taking individual precautions. To that end, ReOpenNC organized a peaceful political protest at the Raleigh capitol on April 14, 2020. At the resulting protest, the Raleigh police department issued orders that all individuals in attendance were required to maintain six feet separation from each other, irrespective of whether they were members of the same household and irrespective of whether they were minor children. Reportedly, several mothers refused to force their young children in attendance to separate and departed the protest to avoid further confrontation with law enforcement. Thereafter, law enforcement personnel arrested Ms. Ussery for attending an illegal mass gathering. Ms. Ussery is charged with violating Governor Cooper’s executive order 121 pursuant to N.C.G.S. §14-288.20A, with a hearing in Wake County Criminal District Court scheduled for June 25, 2020.

In response to local and national outcry regarding Ms. Ussery’s arrest and flagrant violation of her civil rights, various agencies and local authorities issued inconsistent views on the meaning and implementation of Governor Cooper’s Executive Order 121. The Raleigh Police Department (“RPD”), having consulted with acting Wake County District Attorney Lorrin Freemen, prior to the protest, responded to inquiries regarding the perceived infringement on protestors’ First Amendment rights on the social media platform Twitter stating, “[p]rotesting is not an essential activity.” Raleigh Police Department later updated this statement on its Twitter account by stating, “[b]oth the Governor and County have declared a state of emergency. Under these current and temporary declarations, protesting is not listed as an essential function.” These sentiments were later affirmed by Ms. Freeman, when she stated to WRAL that RPD’s reading of Executive Order 121 was “technically correct.” She went on to explain that arrest would be used as a last resort and that officers would continue “giving a wide legal berth to peaceful protest.” Further muddying the legal standard applied to “mass gatherings” for public protest, Governor Roy Cooper issued a statement through spokesman Ford Porter stating, “While protests can be subject to restrictions on time, place and manner, they are held as a fundamental right under the Constitution and are not listed in the order.” Governor Cooper, when questioned directly, created further ambiguity by explicating that his orders “do not interfere with people’s constitutional rights to express themselves” but instead addressed “unlawful mass gatherings.”

The plaint text of the aforementioned orders, the manner in which the Order was enforced against Ms. Ussery and the subsequent statements from public officials constitute broad restraints on public speech and present a ban on all public gatherings of any size in Wake County. Restrictions on content-neutral speech must be narrowly tailored for a specific government interest. McCullen v. Coakley, 573 U.S. 464, 486 (2014). “For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not burden substantially more speech than is necessary to further the government’s legitimate interests.” Id. (internal quotations omitted). To meet this requirement, “the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 495. For example, McCullen compared a law requiring a “buffer zone” outside abortion providers that prohibited contact between people with that zone to an earlier law that required people to stay six feet apart outside providers unless consent was given to further approach. The former was found not to be narrowly tailored, as the latter in conjunction with existing laws accomplished the same goals. Id. at 496-497.

When it comes to gatherings to protest, “[t]he inquiry in every case must be … whether control of the use of the streets for a parade or procession was, in fact, exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.” Shuttlesworth v. Birmingham, 394 U.S. 147, 155 (1969) (internal quotations omitted). Shuttlesworth addressed a civil rights protest march in which an organizer was criminally convicted of violating a city ordinance for marching after being denied a permit. The Supreme Court reversed the conviction, explaining that the permit ordinance was so broadly written that it could be construed to provide the Birmingham Commission the “[a]bsolute power to refuse a parade permit whenever they thought ‘the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.’” Id. at 156. In considering the ordinance as applied by Birmingham, it was further “evident that the ordinance was administered so as, in the words of Chief Justice Hughes, ‘to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought.’” Id. at 159 (quoting Cox v. New Hampshire, 312 U.S. 569 (1941)).

Similarly in Edwards v. South Carolina, 372 U.S. 299 (1963), African-American students “peaceably assembled at the site of the [South Carolina] State Government and there peaceably expressed their grievances ‘to the citizens of South Carolina, along with the Legislative Bodies of South Carolina.’” Id. at 235 (internal quotation marks omitted). After being told to disperse by the police, the students “sang patriotic and religious songs” without “violence or threat of violence on their part or on the part of any member of the crowd watching them.” Id. at 236. Nonetheless, they were arrested for breaching the peace. Id. at 235. The Supreme Court found the students “were convicted of an offense so generalized as to be … not susceptible of exact definition” and “upon evidence which showed no more than that the opinions which they were peacefully expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection.” Id. at 237. The Court reversed their convictions, holding that a law “which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of [the] opportunity [for free political discussion] is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.” Id. at 238.

As recently as 2017, this State was rebuffed by a 8-0 margin at the United States Supreme Court over attempts to enforce a law less broad and far-reaching than the orders at issue here. In Packingham v. North Carolina, 137 S. Ct. 1730 (2017), the Supreme Court invalidated North Carolina’s social media law. Id. at 1738. In the process of articulating its holding, the Supreme Court noted that the broad law at issue in Packingham, a statute which expressly prevented registered sex offenders form using commercial social networking programs, “applies to about 20,000 people.” Id. at 1734. The orders at issue here apply to all of the more than ten million people who live in this state and criminalize a broad swath of innocuous activity. The overbroad nature of the orders themselves are irreconcilable with Packingham.

Esse Quam Videri means nothing if it does not apply foremost to our fundamental rights as citizens of this State. The state of emergency quarantine orders entered by Governor Cooper and The Wake County Board of Commissioners, as written and, in the context of the Order as applied, violate numerous fundamental rights under the constitutions of the United States and North Carolina. My clients are planning to reconvene their protest of the quarantine orders this Tuesday, April 21, 2020, and every Tuesday thereafter, until such time as they conclude that their concerns have been addressed.

My clients would prefer to resolve these issues amicably. To that end, we request written statements from Governor Cooper’s office and the Wake County Commissioners that protestors will not be detained, arrested or prosecuted under their quarantine orders so long as at such protests, individuals who are not members of the same household maintain at least six feet of separation from individuals of other households. We also request that all criminal charges against Ms. Ussury be immediately dismissed.

We request the courtesy of your response and the aforementioned statement by 2pm, April 20, 2020. If your offices do not provide reasonable assurance and objective standards that preserve my clients’ constitutional rights, we will have no choice but to seek emergency legal relief in advance of Tuesday’s planned protest. This letter is not intended to nor does it list all of the constitutional violations and legal deficiencies found in the quarantine orders. The request herein is not an acquiescence that the orders were legally promulgated or satisfy standards of constitutional review.

Please do not hesitate to contact me should you have any questions or desire to discuss these issues. I can be reached on my mobile at [redacted by Chatham Journal] as well as through my office number.


/s/ Anthony J. Biller

Cc: Attorney General Josh Stein

Lee Lilly Director of Legislative Affairs Office of the Governor

James Lawrence, Esq.