NAACP challenging Graham’s restrictive protest ordinance in federal court

Greg Cates is pursued by Graham police officers after attempting to protest against racism on June 27. (photo by Anthony Crider)

The Alamance County NAACP is suing the mayor of Graham and the county sheriff in federal court, seeking a temporary restraining order against enforcement of the city’s restrictive protest ordinance.

The NAACP and eight individual plaintiffs claim that the ordinance, which requires any group of “two or more persons” gathering for the purpose of protesting to apply for a permit 24 hours in advance, is “an unconstitutional prior restraint on First Amendment rights to free speech and assembly” and a violation of due process rights under the Fourteenth Amendment.

The plaintiffs, represented by the ACLU of North Carolina, the ACLU Foundation, the Lawyers Committee for Civil Rights Under Law and Durham lawyer Scott Holmes, are asking a federal judge to issue a temporary restraining order enjoining the city of Graham from enforcing the local ordinance. The lawsuit names Mayor Jerry Peterman and members of Graham City Council, Graham police Chief Jeffrey Prichard, Alamance County Sheriff Terry Johnson and Alamance County Manager Bryan Hagood as defendants.

“This ordinance is a sweeping bar to the rights of people to freely assemble and protest in Graham,” said Kristi Graunke, legal director with the ACLU of North Carolina. “People have a constitutional right to gather and voice their concerns in public areas without fear of arrest, harassment or intimidation from law enforcement. It is appalling that Alamance County officials would trample on the First Amendment rights of their own constituents for the sake of a monument to white supremacy.”

Since the May 25 police killing of George Floyd in Minneapolis, Mayor Peterman has issued several “state of emergency” declarations, including citywide curfews, in response to protests against police brutality and against the Confederate monument on the north side of the Alamance County Historical Courthouse in downtown Graham.

According to the lawsuit, one of the plaintiffs, a Graham resident, witnessed “neo-Confederate demonstrators near the monument openly carrying firearms, in contravention of state law regarding public demonstrations” on June 2.

Following a silent walk through downtown to express opposition to racism and the monument on June 25, the city amended the state of emergency to prevent anyone from applying for a permit to protes. Before the city publicized the protest ban, the Alamance County Sheriff’s Office issued a notification on its official Facebook page stating, “This is to advise that effective June 26, 2020, no permits to protest in the city of Graham, NC to include the Alamance County Courthouse have been granted, nor will be granted for the foreseeable future. Any group(s) attempting to protest without a permit, will be in violation and subject to arrest.”

Following the imposition of the protest ban, Matthew Edwards of Burlington held a sign reading “Black Lives Matter” next to the Confederate monument on June 27. Photographer Anthony Crider reported that Graham police grabbed Edwards’ sign and arrested him, while ordering everyone else including media, to leave. Two police officers forced Edwards to the ground as they placed him under arrest. He faces misdemeanor charges of resisting a public officer and fail to disperse on command.

In another incident, on June 29, a video published by the News & Observer shows Graham police Sgt. RS King threatening Theresa Draughn of Burlington with arrest for loitering after she tucked a sign reading “There are no white people in the Bible” under her minivan windshield wipers, and also threatening two reporters who were on the scene with arrest.

Several people have noted that while people have been arrested or threatened with arrest for displaying signs that express opposition to racism, white men displayed Confederate flags from the back of a pickup truck on June 27 without facing the same repercussions from law enforcement.

One of the plaintiffs, described in the lawsuit as a 59-year-old Latinx woman who lives in Alamance County, went to Graham on June 27 to protest against the Confederate monument alone after learning that a permit for an organized protest had been denied, according to the lawsuit. After patronizing a local business, the lawsuit says, the woman and her friends were ordered to disperse by Graham police.

“Across the street, there was a group of white people with Confederate flags,” the lawsuit says, adding that the group of people opposed to the monument “asked the officers why the other group with the Confederate flags was not ordered to leave. Graham police officers responded that they had not been instructed to concentrate on the area where the other group with the Confederate flags was located.”

Edwards also said he also observed men with a Confederate flag after he was released from custody on June 27.

“What bothered me is when I left jail there was a truck outside, and they had wrapped up the Confederate flag,” he told Triad City Beat. “The officer was laughing and chatting with them. He seemed to be giving them guidance on what they needed to do to stay. Me, they just said, ‘We’re not doing this,’ and they snatched my sign and threw me down on the ground.”

The men with the Confederate flag were also observed by TCB at about 5 p.m. on June 27.

Graham police Lt. JD Flood defended the department’s enforcement practices to antiracist demonstrators during a hastily organized July 1 event after the protest ban was lifted.

“I can tell you, what we have been doing when we see it — because we’re just trying to keep peace — because I had some pull up here this weekend,” Flood said, “and I was going to ’em [and saying,] ‘Look, if you’re down here to patronize the businesses, that’s one thing, but if you’re down here just because you’re gonna sit here with your flags, in order to keep the peace, we need you to put your flags away.’”

The plaintiffs compare Graham’s protest ordinance to an ordinance in Charleston, SC, which was ruled unconstitutional in a 2005 decision by the Fourth Circuit Court of Appeals.

“Plaintiffs argue that the ordinance invites discriminatory enforcement against disfavored views by authorizing the police chief to deny a permit where, in their judgment, a proposed assembly will ‘require excessive diversion of police from other necessary duties,’ without any objective standards,” the text for the proposed temporary restraining order reads. “Plaintiffs further argued that this provision allows the government to suppress views that officials fear will draw large crowds either of supporters or counter-demonstrators, and they plausibly contend that they have in fact been threatened and prohibited from protesting because of their support for racial justice and equality.”

Graham City Manager Frankie Maness told TCB on Friday that he hasn’t seen the lawsuit and couldn’t comment on it.

The request for a temporary restraining order against the defendants is scheduled to be heard by US District Court Judge Catherine Eagles in Greensboro on Monday, July 6.

Meanwhile, the lawsuit indicates that plaintiffs intend to protest in downtown Graham tomorrow, without a permit if necessary.

“Because the ordinance does not set forth a deadline by which defendant Prichard or his designee must respond to an application, NAACP asserts that it fears that any approval or denial will issue too close in time to the planned protest for them to sufficiently publicize and plan the event,” a proposed temporary restraining order drafted by the plaintiffs reads. “NAACP further states that some of its members plan to protest near the Confederate monument on July 4, but fear harassment and arrest when they do so.”

Maness said he couldn’t say how the police will address protesters on Saturday.

“I would have to do a little digging with law enforcement to see what their plans are, if any,” he told TCB.

The lawsuit contends that one plaintiff who plans to protest in Graham on Saturday was told on July 1 by the assistant city manager that he could not apply for a permit. That information is puzzling, considering that the protest ban was officially lifted on June 29, and the city approved a permit for an antiracist protest that was held on July 1.

“Those community members [who plan to protest on July 4], have witnessed white people who want to keep the Confederate monument demonstrating in the same public space without any interference by any law enforcement,” the lawsuit says. “However, those who oppose the monument because it glorifies the legacy of slavery and racial oppression of African-Americans in Alamance County have been dispersed from that same property by law enforcement officers.”