On Aug. 25, the North Carolina Senate passed House Bill 805 (HB 805), a bill that, if signed, could have a staggering effect on how protesters are punished in Charlotte and across the state.
With a short title that states the goal is to “Prevent Rioting and Civil Disorder,” HB 805 would increase penalties for certain charges associated with protesting including rioting or inciting a riot that causes damage to property or persons, assaulting emergency personnel during a riot, looting, and trespassing during an emergency, among other charges.
After passing a concurrence vote in the N.C. House, the proposed bill now goes to Gov. Roy Cooper’s desk, where the ACLU of North Carolina is calling for him to veto it.
If passed, the bill will be enacted on December 1, 2021.
“As this bill returns to the House for concurrence, the ACLU of North Carolina urges state representatives to show the same clear-eyed defense of First Amendment rights and the Black Lives Matter movement as we saw in the unanimous opposition from Senate Democrats,” Daniel Bowes, director of policy and advocacy with the ACLU of NC said in a statement.
The bill was first filed in the N.C. House of Representatives on May 5, 2021 just 14 days after the police killing of Andrew Brown Jr. in Elizabeth City. Brown was shot in the back of the head while fleeing from police who were attempting to serve arrest warrants on him.
Protests arose in Elizabeth City almost immediately after what Brown’s family members have described as an “execution,” and continued for months. The timing led some to believe the bill was a direct response to the long-running protests. Speaker of the House Tim Moore, however, said the idea stemmed from widespread Black Lives Matter protests that followed the murder of George Floyd by a Minneapolis police officer in 2020.
“Many of us here saw last year what happened here in the capital city and in many other places around the state and around the country where you had folks who were peacefully protesting but you also had interspersed among those peaceful protesters some who were bent on destroying property and injuring people,” Moore said during a Senate Rules Committee meeting on Aug. 10.
He recalled staying in downtown Raleigh during a weekend of protests in the summer, when a Dollar General Express was set on fire.
“I actually happened to be here that particular weekend,” Moore said, “of all weekends to stay in Raleigh, my luck, I was here … and saw this firsthand living downtown … I never want to see that again, I never ever want to see that again.”
Response from ACLU and activists
Moore was the main sponsor of the bill and introduced it into the House, but Ann Webb, senior policy counsel for the ACLU of NC says this is uncommon behavior.
“He doesn’t sponsor a lot of bills,” Webb told Queen City Nerve. “That’s kind of typical for a speaker. Any speaker, including him, doesn’t usually put their name on a lot of bills. They have a lot of control over the agenda otherwise, and so it’s kind of unnecessary. So he chose to make this his primary priority this session by putting his name on it and showing up in these committee hearings and actually presenting this bill himself.”
Bowes also released a statement in response to the bill when it was introduced on May 10, stating, “If enacted, HB 805 would dissuade many people from engaging in peaceful and constitutionally protected acts of protest. Protesters calling for racial justice, and people who engage in acts of nonviolent civil disobedience, would risk being detained for an extended period of time and punished with years in prison for property damage that they have not caused.
“We know that people of color are far more likely to suffer unfair and unnecessary harm when law enforcement is given broad discretion to arrest, charge, and severely punish people,” Bowes continued. “This will surely be the insidious legacy of HB 805 if the N.C. Senate fails to prevent its passage.”
Thirty-one N.C. representatives sponsored the bill, of which only one was a woman and the rest were white men. This includes Mecklenburg County’s 98th district representative, John Bradford III, who had not responded to a request for comment on his support of the bill by the time of publication.
Kerwin Pittman, field director of Emancipate NC and member of the North Carolina Task Force for Racial Equity and Criminal Justice, also spoke during the committee hearing, calling HB 805 an “anti-Black Lives Matter bill.”
“I say this because when individuals took to the streets after UNC won championships and things was damaged, you didn’t see a bill like this come out. When individuals took to the streets after Duke won championships and things was damaged, you didn’t see a bill like this come out,” Pittman said. “In this instance, when we’re at a time in history like now when criminal justice reform is of utmost importance and is directly in our face, we see a bill like this come out that deters individuals from coming out and exercising their constitutional rights to protest injustices.
“We are at a time in history where the moral compass is on the table. Which side will you be on?” he asked.
Angaza Laughinghouse with the NC ACLU also pointed out that there has been no police accountability bill introduced alongside this bill that targets protesters.
How House Bill 805 increases penalties
There are four sections to the proposed bill that cover legal penalties, financial consequences for property damage, assault against law enforcement officers, and new pretrial release policies.
Section 1 of the bill increases felony penalties for certain charges that involve rioting. For example, willfully inciting a riot, urging another to engage in a riot, or causing a clear and present danger of a riot would be a Class A1 misdemeanor, the most serious type of misdemeanor, carrying up to 150 days of incarceration.
Section 1 also increases the classification for multiple felony charges. The bill would make it a Class F felony (10-41 months) to willfully engage in a riot that causes property damage of $1,500 or more or bodily injury; a Class E felony (15-63 months) to incite or urging another individual to engage in a riot that causes $1,500 in property damage or more or bodily injury; a Class E felony to willfully engage in a riot resulting in death; and a Class D felony (38-160 months) to incite a riot or urge another to engage in a riot that results in a death.
Section 2 allows for a person to sue for three times the damages to their property during a riot. N.C. Sen. Joyce Waddell brought this section into question during Aug. 10, calling it overkill. Moore responded that simply making the victim whole isn’t enough to dissuade or civilly punish someone participating in an intentional damaging act, citing N.C. general statutes involving unfair and deceptive trade practices.
Section 3 would effectively redefine assault against a law enforcement officer, removing the current language specifying that an assault must cause physical injury to be classified a Class I felony, carrying a potential sentence of three to 12 months. Any action against a law enforcement official that they might consider assault, regardless of whether it causes injury, would be charged as a Class H felony under HB 805, carrying a sentence between four to 25 months.
Under Section 4 of HB 805, anyone in violation of the aforementioned statutes will be required to see a district court judge for pretrial release, whereas in the past a magistrate could set release and bond terms. Rioting and looting will now be treated in the same manner as domestic violence, communicating threats of mass violence, manufacturing of methamphetamine, impaired driving and sexual crimes against children.
People charged with one of these crimes may have to wait up to 48 hours before being informed of their release terms, regardless of whether they are actually guilty. An officer will still need to go before a magistrate and prove probable cause for the charges after an arrest, and a magistrate will then determine if the individual will need to go before a judge for pretrial release terms.
Section 4 will not apply to charges related to assaulting a government official or law enforcement officer.
Webb acknowledged that the bill actually does relax some existing laws. For example, the bill would change the law around protesters carrying guns, as a person would need to brandish a dangerous weapon to be considered participating in a riot as opposed to simply carrying one. However, it is still a Class I misdemeanor to carry a gun at a protest or demonstration.
A state senator speaks out
During the Senate vote on Aug. 25, the bill was opposed by all Democratic senators in attendance, but passed 25-19. N.C. Sen. Mujtaba Mohammed has spoken publicly against HB 805, and recently shared his concerns with Queen City Nerve.
“It infringes absolutely on our constitutional rights to freedom of speech and to peacefully assemble,” Mohammed said. “Looking at the language, it’s very broad. It’s got a number of enhanced felonies. It gives law enforcement broad discretion. And as we have seen throughout our American history, people of color are most likely to suffer the irrational treatment at the hands of law enforcement prosecutors.”
According to CMPD records, only two people have been charged with either rioting or inciting a riot in Charlotte since 2016, both of whom were involved with the protests that followed the killing of Keith Lamont Scott by a CMPD officer that year. In comparison, there were at least 11 arrests made for assaulting a government official over the course of protests during the summer of 2020.
Mohammed said he’s most concerned with the pretrial release aspects of the new bill. In a Medium post from Aug. 17, he discussed the new penalties and ambiguous wording of the bill and how it allows officers more discretion to arrest individuals whom they consider to be violent during protests in order to remove them from the streets for an extended period of time.
“And that’s what this bill is essentially designed to do, give law enforcement that broad power, that broad police power and lock people up without them being able to be heard,” Mohammed told Queen City Nerve. “It’s not the North Carolina we want, and it’s not the North Carolina we deserve.”
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