New rules intended to clarify when protesters at the Legislative Building should be arrested were adopted by state lawmakers Thursday.
The rewrite was prompted by legal concerns over the building rules cited by judges hearing the cases of some of the more than 900 people who were arrested in last year’s “Moral Mondays” demonstrations at the General Assembly.
The judges said some of the rules were unconstitutionally vague, and so legislative staff undertook the first major revision since 1987, which included updating the rules to reflect current practices.
But the process, rushed through on the second day of session in advance of next Monday’s anticipated first round of protests, drew criticism from Democratic legislators. GOP leaders this week appointed eight Republicans and two Democrats to the obscure Legislative Services Commission, which hadn’t met in 15 years.
Approved on a voice vote, the new rules will go into effect without going before the entire General Assembly. Soon after the commission voted, Senate Minority Whip Josh Stein, a Democrat from Raleigh, condemned the process on the Senate floor.
“It is deeply concerning we are changing the rules in which the people can enter the people’s house,” Stein said. “It was done without any public comment, or any opportunity for this full chamber to consider those rules.”
But Rep. Tim Moore, the commission’s chairman and a Republican from Kings Mountain, said the intention was to balance the public’s right of access with the legislature’s ability to conduct its business.
“It is the most open building in state government, and it will continue to be the most open building in state government,” Moore said.
Others saw the new rules as a mixed bag.
American Civil Liberties Union policy director Sarah Preston said some of the provisions had been improved. “But we felt like they missed an opportunity to really clean up these rules,” she said.
Of particular concern is the attempt to provide guidance to law enforcement officers about what constitutes a disturbance. That provision gives examples: being loud enough to impair others’ ability to talk in a normal tone of voice, singing, clapping, shouting, playing instruments or using amplifiers. The provision also prohibits acting in a manner that would “imminently disturb” the General Assembly.
A legislative staffer explained that the term “disturb” hasn’t been defined in state law, but case law suggests it be considered in context of everything that is happening at the time. The staffer said “imminent disturbance” would be something a prosecutor would have to prove in court, likely through the testimony of those who were prevented from doing their jobs because of protesters.
The old rule simply required visitors to not disturb the legislature. Preston said the rewrite doesn’t clear things up.
“That language exists in the current rule and we’ve seen it selectively enforced against groups,” she said. “We think (the new rule) is very, very broad and it still invites that selective enforcement.”
The new rules expand public access and political expression in some cases. A controversial ban on visitors going to the second floor has been eliminated. That rule was outdated and not enforced until 2012, when House Speaker Tom Tillis’ office asked General Assembly police to clear the floor of a group of about 50 protesters.
It also became problematic during the trials, when people on the third floor were doing the same thing as protesters on the second floor, but only those on the second floor were arrested.
Under the former rules, people couldn’t bring signs into the building. The new rules allow them, with some restrictions such as not carrying them on hand sticks.
NAACP has reservations
Another new rule specifies that no request to use the legislative complex for a demonstration can be denied based on the message its participants express.
One rule that troubles the NAACP, which has organized the Moral Monday protests, says demonstrations involving more than 25 but fewer than 200 participants can reserve a space at the front entrance into the building. It’s not a violation to assemble without a reservation, unless it interferes with a group that has reserved the space or it creates a disturbance. Also, a “keep off the grass” rule prohibits demonstrations on the grassy areas around the building.
Irv Joyner, an NAACP officer, law professor and attorney for Moral Monday defendants, attended the commission’s meeting and said restricting protesters to a specific number and location places an unconstitutional limit on free speech.
“These rules do no more than give the General Assembly police officers and the legislative leadership unbridled discretion to indiscriminately violate the rights of North Carolinians with whom they do not agree,” Joyner said in a statement the NAACP released.
Protests involving larger numbers of people on the Bicentennial Plaza and Halifax Mall neighboring the building fall under the jurisdiction of the Department of Administration.
The rules spell out a warning procedure officers must follow before arresting those who violate the rules. Violations are misdemeanor crimes.