Attorneys speaking up for those who speak out

Civil disobedience is principally defined as nonviolent political protests intended to condemn and bring about change in government laws or policy. It’s long been practiced by those seeking political change, but its practice appears to be picking up again in recent years in response to issues like systemic racism, police misconduct, and the commemoration of historical figures that supported the practice of slavery.

Even nonviolent demonstrations sometimes end in clashes with law enforcement, however. When these clashes lead to criminal charges, some attorneys across the state are working to provide pro bono legal defense for alleged offenses such as trespassing, resisting arrest, and disturbing the peace.

“If you look at our history and how it has unfolded … civil disobedience has been necessary in order to advance human rights and the rule of law,” said Scott Holmes, supervising attorney of the civil litigation unit at the North Carolina Central University School of Law. “Justice and the rule of law are improved by people who show ways in which the law is unjust. It helps the world become a better place.”

Some of Holmes’ recent clients include a group of ten people arrested after attempting to block an Immigration and Customs Enforcement van carrying a man, reportedly for deportation, who had been in sanctuary inside a Durham church. He’s also represented a man arrested after bringing a semi-automatic rifle to a rumored Ku Klux Klan rally and another man charged with inciting a riot after making a Facebook post before a Black Lives Matter protest against the George Floyd killing.

Holmes applauded those who value civic duty over their safety, willing to accept consequences for the greater good. But he made clear that his efforts focus on those who engage in civil disobedience rather than uncivil disobedience.

“Destroying businesses and hurting people are crimes … opposing Confederate monuments or burning draft cards are not,” he said.

Indeed, the very term “civil disobedience” can be confusing in some ways, said Amelia O’Rourke-Owens, statewide protest defense coordinator for Emancipate North Carolina. Whereas the rebellious consider their beliefs and actions well-founded and their methods of dissent justified, their political objectives are sometimes dismissed by the government as an excuse for violating the law.

“Sometimes these acts aren’t even crimes, but what we often see determining arrests is when law enforcement decides they want [protests] to be over and they say ‘it’s time to go,’” O’Rourke-Owens said. “It’s not illegal to be annoying … it’s a First Amendment practice.”

Lawyers who advocate on behalf of those charges with crimes stemming from peaceful protest will sometimes cite the legal maxim that “An unjust law is no law at all.” Durham attorney T. Greg Doucette said he agrees with the sentiment but recognizes that not everyone is positioned to suffer arrest and its collateral consequences.

“But if they’re willing and able to put up with the process, protestors should fight like hell against any criminal charges ever brought against them because the notion that we’re accurately determining guilt and innocence is laughable codswallop,” he said.

Holmes also noted discrepancies in the ways different sorts of protestors are often treated, referencing in part the recent insurrection at the U.S. Capitol.

“When people complain about pulling down Confederate monuments, I like to bring up the Boston Tea Party,” Holmes said. “During Black Lives Matter protests, police show up in riot gear.”