Lawyer On How Restraining Order On CMPD Will Protect Protesters’ First Amendment Rights

Jun 22, 2020

Protests of racial injustice and police brutality continued this weekend in Charlotte. As usual, Charlotte Mecklenburg police were on the scene, but they were operating under a temporary restraining order. A superior court judge on Friday signed the order halting the department's use of riot control agents like tear gas and flash bang grenades against peaceful protesters. That was a response to a lawsuit filed by groups including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising. Alex Heroy helped to argue their case in court. He joins “Morning Edition” host Lisa Worf.

Worf: Good morning, Mr. Heroy.

Heroy: Good morning.

Worf: So how much does this restraining order change CMPD tactics? After all, CMPD says it has only used riot control agents like tear gas once people began throwing rocks and frozen water bottles at officers.

Heroy: I think it requires stricter adherence to their policy and puts limits on the policies. There's CMPD directives are, they're not always to set specific on the use of force continuum and sort of what's allowed and what's not allowed. So this is put in place. We filed a lawsuit to really protect the peaceful protesters that have been victims of, what we thought of as sort of a gross assault on their First Amendment rights, at least in particular on June 2.

Worf: So when you say it puts limits on some of their tactics, are you saying because it adds a certain level of scrutiny that wasn't there before, even though CMPD says this doesn't change that much?

Heroy: Yes. Yes. I mean, so on June 2, when you had three to four hundred protesters who are all largely acting very peaceful, marching with their hands up. No real issues that we've seen in the videos. And then the police boxed them in and gassed them and shot at them. That's not OK. That's across the line. That's way over the line. Even if CMPD says that there were some outliers throwing a water bottle or even a rock would justify that kind of use of force. And it doesn't justify that use of force indiscriminately against a large crowd of peaceful protesters exercising their First Amendment rights. That's just not allowed. It's not OK. And we had to put a stop to it and not let it, risk it happening again. That's what we had to move for this emergency restraining order to make sure it doesn't happen again.

Worf: No CMPD Deputy Chief Jeff Estes said Friday that the one difference it makes for the department is that it prohibits officers from using riot control agents like tear gas again against people who are destroying property. So officers would have to intervene physically to remove those people. Do you have concerns this could further escalate a situation?

Heroy: Well, I don't think this CMPD's communication was an accurate summary of the order. The restraining order restricts actions against peaceful protesters. If there is an individual who is causing a destruction during a peaceful protest, CMPD is supposed to go in and remove that that individual, if they're destroying property there's a use of force continuum that CMPD is allowed to use. It is not a, this is not a, an order that allows or forces  CMPD to just simply let people go commit criminal activity. That is not it at all. It is a restriction on what use of force can be used against peaceful protesters gathering.

Worf: Now, this is a temporary restraining order until the lawsuit can be heard. What does the lawsuit itself seek?

Heroy: So the lawsuit itself seeks a permanent restraining order that the same thing. We're also asking for what's called a declaratory judgment against which would find that the dispersal order allegedly announced on June 2 was ineffective and did not comply with CMPD policy.

Worf: And beyond the use of tear gas and other riot control agents, how did the groups you represent want to change police tactics when it comes to handling protests?

Heroy: I say that, you know, there's a lot of groups that are plaintiffs in the lawsuit it's a lot of different opinions. So I don't want to speak for the entire group because it's a range with a lot of things that need to be changed with police. But I think the overarching issue is the respect and lack of respect and improving that, greatly improving that and community relations with the police.

Worf: That's Alex Heroy, who helped argue the case in court on behalf of groups, including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising.