In a hearing ahead of his trial on 2nd-degree trespassing charges, an attorney for the Rev. William Barber said Monday that a jury should be able to decide whether a North Carolina citizen can be found guilty of trespassing in a building the people own and maintain for the purpose of addressing their political leaders.
An assistant district attorney argued that’s for a judge to find, because it’s too complicated an issue for a jury to handle.
This question arose in a pretrial hearing for a motion by Wake County Assistant District Attorney Nishma Patel, who had asked the court to keep Barber’s attorney from “misleading” or “confusing” a jury by talking about First Amendment rights, or about whether trespassing laws apply in the case.
Barber and 31 other people were charged with trespassing at the N.C. Legislative Building in May 2017, when they went there during business hours to push for better health care for the poor, and refused to leave the hallways outside elected officials’ offices.
A magistrate at the time banned them from returning to the legislative building as a condition of their release. As the cases made their way through Wake County courts, the bans were lifted.
A judge lifted the ban on Barber going to the legislative building in April of this year, despite Patel’s request that it be kept in place at least until after the teacher rally in May. She said state officials were concerned that Barber’s presence at the rally, which culminated at Halifax Mall, behind the legislative building, would draw excessive crowds.
Barber, pastor of a Goldsboro church, former leader of the N.C. NAACP and an organizer of the national Poor People’s Campaign, has said that protesting the actions of the N.C. General Assembly in the building where they work is a right under the First Amendment of the U.S. Constitution and a duty under the Constitution of the state. His arrest at the protest, he has said, violated both constitutions.
Further, his attorney, John McWilliam of Raleigh, said during Monday’s hearing that N.C. lawmakers have never differentiated legally between the state and its residents, meaning that when the state owns a building, it could be inferred that the residents of the state own the building. If they own it, can they be charged with trespassing in it when they are there to conduct a form of business during normal business hours?
The N.C. Constitution says, “the people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances,” McWilliam noted.
When Barber and more than 30 others were arrested, McWilliam said, “They were trying to do that in the only place where they can.”
In the absence of a law addressing the ownership question, which McWilliam says does not exist in North Carolina, the question must be left to the jury to decide as part of its deliberations into whether Barber is guilty of trespass.
Patel’s motion asked that McWilliam not be able to make those arguments during Barber’s trial this week because, she said, they are beside the point and because they would confuse a jury. In law school, she said, there is an entire class on the First Amendment and even then, students are left with questions..
Sometimes, Patel told the judge, the government has to restrict First Amendment rights, such as when a protest in a building becomes so disruptive that workers can’t do their jobs.
“You don’t get unfettered rights under the First Amendment,” Patel told the judge.
“We aren’t arguing unfetteredness, your honor,” McWilliam countered. “Of course there can be restrictions.”
McWilliam asked the judge to handle any specific concerns about what he says in court through objections rather than issuing a blanket prohibition on his talking about the First Amendment and whether it’s possible to be a trespasser in the state’s legislative building during business hours.
Superior Court Judge Stephan Futrell said he will issue his decision on the state’s motion Tuesday morning, before jury selection begins.