June 1, 2020: When armed residents gathered to march in protest against COVID-19 stay-at-home orders, officers with the Raleigh Police Department had to intervene. They brought copies of the General Statute, and explained that North Carolina law prevents groups from simultaneously protesting and carrying weapons.
According to the Charlotte Observer, Alabama, California, Hawaii, Illinois and Maryland also outlaw the combination. In several states that allow firearms at rallies, local governments may apply their own restrictions. In many states, however, it’s illegal to carry with an intent to cause terror in others. Residents in some localities could also face misdemeanor charges for encouraging violations of stay-at-home orders.
When alt-right groups descended on Charlottesville, Va., to protest the city’s decision to remove Confederate statues from prominent areas of public parks, some residents and shocked observers questioned why the city didn’t deny protests.
Some people believe that cities have the authority to deny protests. According to the American Civil Liberties Union (ACLU) of Northern California resource on Free Speech, Protests & Demonstrations, protest organizers anywhere in the U.S. should only have to give cities or the local municipality “days” of notice, and they must have “precise and specific standards” for denying protests permits:
An ordinance with no standards, or with vague standards such as ‘will not disturb others’ or ‘in the public interest’ or ‘in the interest of vehicular or pedestrian traffic safety’ gives individual officials too much discretion. Such an ordinance is unconstitutional.”
Charlottesville, in responding to a request for a protest permit from the local organizer opted to move the rally at a public park to a larger, more open public space about one mile from the congested downtown. However, ACLU on behalf of the rally organizer sued the city, and Federal Judge Glen Conrad ruled Charlottesville must permit the protest be held in the downtown park, known as Emancipation Park, in part because it did not revoke the counter-protesters permits for the same location.
“We were unfortunately sued by the ACLU, and the judge ruled against us,” Virginia Governor Terry McAuliffe told National Public Radio following the event.
That rally should not have been in the middle of downtown ... where [people] dispersed all over the city streets, and it became a powder keg. We’ve got to look at these permits, and we’ve got to look at where we put these rallies and protesters,” the Governor concluded.
Cities Dos and Don’ts for Permitting Protests
ACLU of Northern California noted in its free speech demonstration resource that organizers of protests must check local permit ordinances before demonstrating.
While regulations vary, however, ACLU said:
- Cities can’t deny protests on public sidewalks or streets, or rallies in most public parks or plazas.
- Cities can require a permit to regulate competing uses and to ensure reasonable time, place and manner restrictions.
- Cities can require advance notice in permit ordinances, but it should be days not weeks, and some leeway should be made for breaking news.
- Rally organizers shouldn’t need a permit for protests that don’t present serious traffic, safety and competing-use concerns beyond daily ordinary use. “If you hold a small rally in a public park or march on on the sidewalk and obey traffic laws, you generally won’t need a permit,” according to the ACLU.
When City Permit Ordinances are Invalid
ACLU said city permit ordinances are unconstitutional:
- If they are unreasonably or unnecessarily burdensome
- If they prevent protesters from communicating their messages
- If permits are selectively enforced
- If a government discriminates against a group for the content of its speech
“This means that city officials may not impose additional burdens or costs on you because your message is controversial,” ACLU concluded.
The Courts’ and Cops’ Roles in Protests
While the judge ruled that Charlottesville’s desire to move the alt-right rally, based on the belief that thousands of alt-right protesters were expected, was speculative, McAuliffe argued that the violent results indicate that courts need to ensure cities can protect public safety and deny protests locations and other aspects.
While the Governor commended the Charlottesville police department, local clergy, counter-protesters, alt-right rally organizers and academic observers all criticized the Charlottesville police department for its approach during the protests.
According to the Police1.com report, retired New York Police Department Sergeant Joseph L. Giacalone, an adjunct professor at the John Jay College of Criminal Justice, was shocked local police allowed alt-right protesters to carry torches into a public park Friday evening, and that all protesters were allowed to carry sticks, bats and protective gear to the permitted Saturday rally.
The Department of Justice is currently investigating.
Editor’s Note added June 1, 2020.
