The state NAACP president and other protesters arrested May 30 will continue to be blocked from the building where state laws are made while their court cases remain unresolved.
Wake County District Court Judge Michael Denning modified a magistrate’s orders banning the Rev. William J. Barber II and other protesters from returning to the Legislative Building. Under the modified order, some members of the group may return to the Legislative Building only if invited by a legislator for a specific time and date. Barber is not among that group, but his wife and daughter are.
Denning, a Republican, made his decision after a court hearing on Wednesday in which he called the orders “entirely too broad.” His orders offered no explanation of why groups of protesters were treated differently. But the four protesters on the list eligible to get an invitation from a legislator do not have previous arrests at the Legislative Building; Barber and four others who are banned until their cases are resolved do have previous arrests, court officials said. Others among the 32 arrested did not go before Denning.
Protesters were arrested on charges of second-degree trespassing at a rally against lawmakers’ refusal to expand the Medicaid program of government health insurance, as allowed under the Affordable Care Act. Among those arrested were Barber’s wife and his daughter, Rebekah Barber, whose experience with hydrocephalus – which causes fluid to accumulate on the brain – has contributed to her interest in ensuring access to health care.
The NAACP president and his attorney have appealed the judge’s order, saying it contradicts previous Wake County court rulings finding similar restrictions in conflict with the constitutional right for people to assemble together, instruct their representatives, and ask the General Assembly “for redress of grievances.” They also have received 17 letters from state House and Senate members inviting them to visit, invitations that started arriving on June 20 after the ban was made public.
Wake County prosecutor Vanessa Curtis argued at the hearing leading to Denning’s ruling that the broader ban that prohibited the protesters from entering the government building until authorized did not stop people from speaking with their lawmakers. She argued they could make phone calls to legislators or write to them.
“This is not about whether we agree or disagree with their policies or beliefs,” Curtis said. “We cannot ignore the rule of law.”
Barber also said he was troubled by a line of questioning that Denning pursued, asking about lawmakers being “molested” in their offices and even followed into the bathroom.
Before Denning became a district court judge, he was in private practice with Kieran Shanahan, who served in former Gov. Pat McCrory’s Cabinet. Earlier, Denning worked in the insurance industry for Michael Malone, the brother of Chris Malone, a Republican and deputy majority whip in the state House of Representatives. Chris Malone was on the Wake County school board when a Republican majority pushed for a school assignment plan that rankled the NAACP and others.
Some of the questions that Denning asked Geeta Kapur, the attorney representing Barber and the protesters, raised concerns during the hearing and afterward.
The prosecutor said banning the protesters from the building while the cases were pending would keep legislators safe.
Kapur argued that the Legislative Building is a public building and no part is off limits to the public.
Denning posed a question about how much privacy a legislator should be able to expect inside a legislative office or bathroom.
“Do they have any reasonable expectation not to have to be molested by anybody who has not made an appointment,” Denning asked.
None of the protesters were charged with any crime related to harassing, confronting or assaulting anyone in the Legislative Building. The protesters were arrested after they refused to clear the hallways outside legislative offices.
“What if they accosted somebody in the bathroom?” Denning asked further.
“Would that be appropriate?”
“Accosted?” Kapur asked. “Lobbyists certainly follow legislators all throughout that building. So I’m sure they have followed them in the bathroom and had conversations with them.”
“That’s transacting legislative business,” Denning responded. “We’re talking about having free speech.”
Kapur’s voice got louder as she argued that lobbyists should not have any more access to lawmakers than voters who might be protesting legislation that they disagree with.
“Your honor, my clients are there conducting legislative business …They have the right to instruct their representatives. Again, our forefathers thought it was important that they have the exact same right as a lobbyist has because all political power is derived from the people. That is what is at stake here today.”
Barber described Denning’s use of the word “molested” and his questions about accosting lawmakers in bathrooms as “loaded terminology” that he contends shows a “pre-determined bias” about the judge’s views of protests.
“These wild and misleading characterizations of our protest raise questions about the judge’s feelings versus the facts and the fundamental constitutional questions regarding our case,” Barber said.
General Assembly Police Chief Martin Brock said at the time of the arrests his agency had not asked the magistrate to put the ban in place. When asked whether he thought the ban was necessary, he said: “If someone has been arrested two or three times, would it be reasonable to expect that they would be arrested again? That would be my observation.”
In 2013, after the Republicans were new to power in both General Assembly chambers and the governor’s office, Barber became the architect of the Moral Monday movement which led to more than 1,000 arrests in the state capital.
Most of the protesters at that time saw the charges dismissed. Courts rejected conditions banning protesters from entering the Legislative Building.