RALEIGH — When the founding fathers enshrined in the Constitution the right to peaceably assemble, they apparently failed to anticipate the vagaries of state Capitol police budgets.

That curious twist is part of a legal argument that has emerged in Wake County Superior Court in a case tied to the Occupy Raleigh protest arrests.

The grounds of the state Capitol, a monument to democracy, should be a place where people can assemble in small crowds peacefully and speak their minds without a protest permit, contends Scott Holmes, a Durham lawyer representing one of the Occupy Raleigh protesters.

But Rashad A. Hauter, an assistant Wake County district attorney, argues that on certain state properties, particularly those where high-profile, politically-charged business happens, the right to protest is limited, in part, by the size of the Capitol police force, which saw its budget slashed in half last year.

In a motion to dismiss the case against Antonio Rahman, one of 19 protesters arrested in October, Holmes argues that the state’s permitting process is overly broad and steps on a hallmark of the Constitution – the right to assemble peacefully.

“The Capitol steps are the quintessential place for people to petition their government,” Holmes said. “A small group of people ought to be able to roll over there and say what they want.”

Hauter argues that even one protester on Capitol grounds and other state-owned properties throughout Raleigh should have to give the state Department of Administration advance notice of their plans, particularly in post-9/11 America. One protester, Hauter argues, could draw counter protesters and stress security forces tasked with providing a safe environment for public officials, state employees and visitors within the government complex and state-owned grounds.

“The size and nature of the Capitol grounds makes it clear that even a small group could affect the state’s significant government interests,” Hauter argues in response to Holmes. “Therefore, it is necessary for the Department of Administration to receive advance notice of demonstrations of any size ....”

The Rahman case was on the court docket this week in Wake County Superior Court. But the calendar was full with other appeals cases, delaying a hearing on the legal arguments until next month.

Rahman was arrested on Oct. 15 while sitting with 18 others in a circle on the Capitol grounds.

The state Department of Administration had issued a permit authorizing some 400 protesters to gather and demonstrate from 11 a.m. to 3 p.m.

When a crowd lingered hours later, Capitol police sought the assistance of Raleigh’s city police force.

By 7:15 p.m., 30 Occupiers were still on Capitol grounds, according to police reports and court documents.

A Raleigh officer advised the group to move to the sidewalk or risk being arrested for second-degree trespassing.

The protesters stayed and arrests were made.

Holmes argues that the First Amendment, which prohibits the passage of laws that abridge the freedom of speech or the right of people to peaceably assemble and petition the government, applies to the protestors.

The model for petitioning goes back to medieval England when those seeking reform could lay a petition at the foot of the throne, while the king was sitting there.

The act of petitioning has deep roots in the American political process, from the abolitionists mounting mass campaigns in the 1790s to end the slave trade, to the suffragettes advocating for women voting rights to protesters pushing for civil rights.

An ordinance that requires individuals or groups to obtain a permit before engaging in protected speech is a prior restraint, Holmes contends, and the courts have ruled that any such restriction must be tailored narrowly and provide exceptions for small groups, such as the one that Rahman was in.

But Hauter argues that ordinances governing state properties are narrowly tailored and that Raleigh, a city that sees its share of public demonstrations, can put processes in place to ensure the public safety on state property. In large cities across the country, Occupy protests strained police budgets as overtime costs climbed during the height of the movement.

The state Capitol Police, formed in 1967 to provide security for state government, has been tasked through the decades with overseeing that mission.

But last summer, the legislature, in a new age of austerity, cut the Capitol Police budget to $2 million from $4 million. Nearly half the force ended up on the unemployment line and patrol cars were parked.

Because of that, Hauter contends, a demonstration of any size without prior notice to the state Department of Administration could cause a significant disruption.

“In this case, a police force reduced by almost half is responsible for patrolling and ensuring the safety of public officials, state employees and visitors on confined state-owned properties located throughout Raleigh,” Hauter argues. “Therefore, because of these reductions, and the relatively small size of the regulated properties, the Capitol grounds and other state-owned properties in Raleigh are unusually vulnerable to even small spontaneous protests and demonstrations.”

After the Sept. 11 attacks, some say the need for security has often been offered as the reason for corralling the hue and cry outside the eyesight and earshot of lawmakers.

Holmes bristles at such a notion.

“Diminishing our right to free speech out of fear for terror and likening these low-key protesters to terrorists,” Holmes said, “that’s what the terrorists wanted and they have won.”

Blythe: 919-836-4948