Getting Tough on Rioting and Civil Disorder [Updated]
Bipartisan legislation has emerged from the General Assembly once again that seeks to strengthen criminal penalties for rioting and civil disorder. House Bill 40 has passed both the House (75 to 43, with 118 of 120 members voting) and Senate (27 to 16, with 43 of 50 members voting) and now heads to the desk of Governor Roy Cooper.
It is unclear whether Governor Cooper will sign the measure, although he vetoed a similar bill in 2021. At the time, he called that legislation “unnecessary” and said it was “intended to intimidate people from exercising their constitutional rights to peacefully protest.” Should the current numbers hold — and no one in the General Assembly changes sides — the bill has enough support from the minority party that it would be veto-proof. The forthcoming override vote, should there be one, would be a test of the lame-duck governor’s once imperious influence over members of his party in the state legislature. A successful veto override requires three-fifths of each chamber’s members who are “present and voting,” according to Article II, Section 2 of North Carolina’s Constitution. Assuming all members are present and voting, that threshold is 72 in the House and 30 in the Senate.
Calling it “common-sense legislation” when introducing the bill in February, Speaker of the House Tim Moore disagreed with Governor Cooper’s earlier characterization, saying that HB40 “simply enforces harsher penalties for the perpetrators of violence and looting, while also preserving every North Carolinian’s right to protest peacefully.”
If it becomes law, House Bill 40: 1) clarifies that active conduct is required for criminal prosecution of riot offenses, 2) increases the punishment for participating in or inciting a riot, 3) codifies a new felony for a rioter who causes a death or someone who incites rioting that contributes to a death, 4) increases the punishment for committing an assault upon emergency personnel from a Class I felony to a Class H felony and includes members of the North Carolina National Guard in that group, 5) eliminates the current requirement that an assault must result in physical injury to emergency personnel in order for a person to be convicted, 6) creates requirements for bail and pretrial release for defendants charged with rioting, looting or trespassing during an emergency, 7) allows property owners to seek treble damages in compensation for damage to a business during a riot, and 8) establishes additional requirements for bail and pretrial release conditions similar to conditions placed on defendants charged with domestic violence, including a 24-hour “cooling off period” before bond and pretrial release.
Section 4.1 of the bill clarifies that the legislation “shall not be construed to prevent or prohibit an individual’s First Amendment rights.”
The impetus for the legislation hearkens back to the violent protests that swept the nation in the wake of the killing of George Floyd in the summer of 2020. In North Carolina, protests in several cities turned violent, including in Fayetteville, Charlotte, Greensboro, and Raleigh — where Mayor Mary-Ann Baldwin was forced to issue curfews and declare a state of emergency. Damages topped $10 million in North Carolina and between $1 and $2 billion across the United States, the costliest in history.
“We simply must do a better job of protecting the public and our business owners and supporting our law enforcement officers who risk their lives every day to keep our communities safe,” Speaker Moore said in a news release last Thursday, after the Senate passed the bill.
It is unusual for the Speaker to be the lead sponsor on legislation. HB40 is one of just two bills Speaker Moore has introduced (of the 400-odd bills filed in the House thus far) in the 2023-2024 session.
Speaker Moore also took time to visit the Senate Judiciary Committee on March 7th to speak on behalf of his legislation. Joining him at the podium were fellow primary sponsors Representatives Shelly Willingham and Charles Miller, themselves both former law enforcement officials. Rep. Willingham is a former District of Columbia police officer and Rep. Miller recently retired as Chief Deputy for the Brunswick County Sheriff’s Office. Both have on-the-ground experience with riots.
“I know that 99 percent of the people who are out there demonstrating or protesting, they’re legitimate and doing the right thing,” said Rep. Willingham in his remarks to the committee. “But it’s that one percent, or that small group that come out for the wrong reasons.”
The North Carolina Sheriffs’ Association supports the bill, according to its president, Orange County Sheriff Charles Blackwood, who also spoke at the Judiciary Committee meeting last week.
But not everyone supports the idea.
Three members of the public spoke against the legislation, including Elizabeth Barber, Policy Counsel at ACLU of North Carolina, Melissa Price Kromm, Director of NC Voters for Clean Elections, and Kerwin Pittman, Policy & Program Director of Emancipate North Carolina, a social justice group headquartered in Durham.
“The intent of this bill is to stifle free speech of individuals who are coming out to speak against law enforcement brutality,” Mr. Pittman told the committee. “But most importantly, social justice issues that are plaguing our state.”
Mr. Pittman appeared to threaten Rep. Willingham later that day in a meeting of the Senate Rules Committee, looking directly at him while saying “my message is to any Dems who want to sign on to this type of legislation: make no mistake — we’ve organized from one end of the state to the other, and you will be held accountable for sponsoring, as well as supporting, this type of legislation that distinctly targets marginalized communities.”
The unflappable Edgecombe County Democrat remained undeterred, however. “My intention is not to discourage people from demonstrating,” Rep. Willingham said. “But hopefully, this [bill] will discourage some of those folks who come out for the wrong reasons.”
Update (March 17, 2023): Governor Cooper let House Bill 40 become law without his signature. “”I acknowledge that changes were made to modify this legislation’s effect after my veto of a similar bill last year,” said Governor Cooper in a statement. “Property damage and violence are already illegal and my continuing concerns about the erosion of the First Amendment and the disparate impacts on communities of color will prevent me from signing this legislation.”
In response, Speaker Moore said: “Nearly three years after violent protests devastated communities and businesses in North Carolina, I am pleased that this bipartisan legislation will finally become law,” in a press release. “While the First Amendment guarantees the right to peacefully protest, those who hijack otherwise peaceful demonstrations to cause chaos and destruction in our communities must be held accountable, and law enforcement must have our support to do just that. This bill has had bipartisan support since it was first introduced, and our communities will be safer now that this bill will finally become law.”