The Durham County commissioners expressed reservations Tuesday about making protesters notify the county of their demonstrations, with one commissioner saying it could put “a gag on legitimate protests.”
The county is considering whether to make changes to rules for public demonstrations on county property, such as the Durham County Courthouse, the county jail and the Durham County Library in downtown that is being renovated.
The proposal would require groups that want to demonstrate on county property to notify the county within 48 business hours of the event if they expect 50 or more people to show up. Groups that don’t may be considered trespassing and removed by law enforcement.
“I do have some concerns about it,” Commissioner Heidi Carter said. “I want us to be very careful that we don’t put any local rules into place that impinge upon the right to assemble. … I do think the requirement for 48-hour notification will prohibit spontaneous protests.”
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Any changes to the current policy would be considered an administrative decision, which would not require approval from the county board.
County Commissioners Chair Wendy Jacobs and Carter both expressed their dismay that the changes would not require the commissioners’ votes.
Carter added that if it came to a vote, she would vote against it. “I am really concerned that this going to put a gag on legitimate protests,” she said.
Durham County Attorney Lowell Siler said the goal of the notification system was to promote safety, not infringe on freedom of speech. Any group that notified the county could not be denied from assembling, he added.
“Having large groups of people increases the chances that something could happen,” he said. “At least putting our law enforcement on notice puts them in a better position to act if something unfortunately did happen.”
Policy to be revised
The county manager’s office will consider the county board’s input and will eventually return with a revised policy. There is no timeline for when. The proposal also includes an expanded definition of what a weapon is and bans the use of pop-up tents on county property – both changes the commissioners seemed in favor of.
“We have a very healthy amount of indecision with respect to where this body is,” County Manager Wendell Davis said. “I am not exactly sure that we can bring back anything that will satisfy you, but the staff will take another shot at it.”
Durham activist Greg Williams, who demonstrates in the city as part of the Industrial Workers of the World labor union and with the Inside-Outside Alliance, which advocates for Durham County jail inmates, said the notification system would infringe on his rights to assemble.
“I think they are right that the biggest issue is the process of notification, but, at the end of the day, moving up how much time you have to give doesn’t take away from the fact if you are creating a rule about notification that can be violated, you are creating just another occasion for repression,” he said. “They are saying it’s not a permit, but it’s a process where if you choose not to go through it, they have the right to arrest you.”
In a statement, Susanna Birdsong, policy counsel for the ACLU of North Carolina, said members of the public have a constitutional right to gather and protest in public spaces, “including as a rapid response to a current event.”
“As we’ve seen in North Carolina and across the country, quickly organized demonstrations play a crucial role in our democracy,” she said. “We encourage Durham County's commissioners to heed the concerns of residents and ensure that free expression rights are protected for all.”
In response to questions about whether a notification system would violate freedom of speech, Siler said he was not concerned about that.
"Looking at it from a balancing test it’s (about allowing) demonstrators to exercise their First Amendment right but at the same time to keep the demonstrators and everyone else safe,” he said. “I think both can be accomplished at the same time.”
Some county commissioners agreed that a notification system could improve communication and safety, even if they thought the 48-hour notification was burdensome.
“It would have been very easy for a child to be injured (during the protest), and we would all be wishing that we had done something about it,” Commissioner Brenda Howerton said.
The proposal follows up on a letter from Sheriff Mike Andrews last summer in which he called for “simple and common-sense” measures to handle demonstrations after hundreds of people gathered downtown Aug. 18 amid rumors that white supremacists were marching toward Durham.
The march never happened, but three people brought an ax, gun and semi-automatic weapon downtown, and the event led to some offices and businesses closing early.
“I hope never to see again such reckless disregard for human life during a purportedly peaceful demonstration,” Andrews wrote in the Aug. 31 letter to county and city leaders.
The sheriff also called on the city to enforce its permit process for closing or blocking streets and sidewalks in his letter.
Wil Glen, a spokesman for the Durham Police Department, said: “Permits aren’t needed to peacefully assemble on the sidewalks and voice your opinions. But those assembling cannot block entrances and exits to buildings and aren’t supposed to be in the street or blocking traffic.” Special permits are needed for blocking traffic or demonstrating in the street.