Raleigh defendants seek dismissal of arrested COVID protester’s suit

Raleigh is asking the North Carolina Court of Appeals to dismiss city defendants from a lawsuit filed by a woman arrested in 2020 after a ReOpenNC COVID shutdown protest. The suit alleges the arrest near the state Executive Mansion violated Monica Ussery’s constitutional rights.

A trial judge ruled in April 2025 that Ussery could proceed with her complaint against the city, its police chief, and a police captain. The same court order allowed Ussery’s case to proceed against the state, the State Capitol Police chief, and one State Capitol Police officer. The order dismissed the governor, Department of Public Safety secretary, Wake County district attorney, and two other law enforcement officers from Ussery’s suit.

Now the Raleigh City Attorney’s office is asking the Appeals Court to throw out the portion of Ussery’s complaint dealing with the city defendants.

“Plaintiff alleges that the defendants conspired to violate her rights to assembly and petition, freedom of speech, equal protection, and due process pursuant to Art. 1, § 12, Art. 1, § 14, or Art. 1, § 19 of the State Constitution,” Raleigh city lawyers wrote Friday. “While the Complaint contains numerous conclusory and speculative allegations concerning the states of mind and motives of various City Defendants, the factual nucleus of the City Defendant’s allegedly unlawful conduct was the arrest of Plaintiff. After being arrested, Plaintiff alleges that her State Constitutional rights continued to be violated through prosecution.”

Ussery is pursuing what’s known as a Corum claim for the violation of her state constitutional rights. A plaintiff can pursue that type of claim if no other legal option is open.

Raleigh argued that Ussery had other options in this case.

“State common law provides causes of action that provide adequate remedies for Plaintiff’s causes of action,” according to the city’s brief. “Under the facts of the present case, the tort of malicious prosecution provides an adequate remedy barring direct constitutional claims.”

“State law claims directed at punitive conduct allegedly taken in order to infringe upon free speech also provide an adequate remedy foreclosing a direct claim under the North Carolina Constitution,” the Raleigh brief added.

“The Plaintiff herein, could have brought common law claims for false arrest and malicious prosecution but chose not to do so,” city lawyers wrote. “Even if governmental immunity applied to Plaintiff’s common law claims against the City Defendants, Plaintiff has an additional source of adequate common law remedies because these common law claims may also have been brought against the individually named defendants in their individual capacities.”

Ussery sued government officials and law enforcement officers in their official capacities, not as individuals.

“Plaintiff’s potential claims against the individually named defendants in their individual capacities could have provided an adequate state law remedy even if Plaintiff would have been required to prove malice, corruption, or conduct outside the scope of employment in order to prevail,” Raleigh’s brief argued.

“Therefore, because there are common law claims that could have adequately protected Plaintiff’s rights under the State Constitution, and companion claims against the individually named defendants in their individual capacities could have provided alternative sources of an adequate remedy, Plaintiff’s direct claims under the state Constitution against the City Defendants should be dismissed,” city lawyers wrote.

Ussery claimed in her lawsuit that officials violated her rights when they arrested her and moved forward with a prosecution that extended for nearly three years.

A federal judge issued a 2024 order dismissing Ussery’s original lawsuit related to the same arrest. She asked the 4th US Circuit Court of Appeals to reverse that decision.

“This case arises from a conspiracy formed by a group of state and local officials to pervert the criminal justice system, in violation of Articles 12, 14, and 19 of the North Carolina Constitution,” Ussery’s lawyers wrote in an April 2025 brief. “Defendants’ actions were designed to stifle public demonstrations against the government’s Covid-19 policies by arresting those who publicly challenged the unprecedented invocations of governmental power, which profoundly impacted the lives of every citizen in the State of North Carolina.”

“Defendants found their target in Ms. Ussery, the last remaining protestor at the first ReOpenNC protest on April 14, 2020 (the ‘Protest’), who was arrested after all other protestors had dispersed, while standing alone in a traditional public forum, a government parking lot which is part of the State Capitol Complex across from the legislative building,” Usserys’ lawyers added. “And their punitive, retaliatory campaign against Ms. Ussery continued long after the Protest, spanning three years, even though other protestors who supported more favored causes, including the Governor himself, were either not arrested, charged, or had their charges dismissed.”

Convicted in Wake County District Court on charges of second-degree trespass and violating Cooper’s COVID shutdown Executive Order 121, Ussery eventually accepted a deal to have charges dismissed in return for 25 hours of community service. Charges were dismissed in February 2023, nearly three years after the protest.

Lawyers representing the governor and leaders of the state Department of Public Safety, State Capitol Police, and General Assembly Police filed a brief urging the court to dismiss Ussery’s complaint.

“Plaintiff seeks monetary damages from numerous defendants employed by different state and municipal entities for the performance of their official duties during the beginning of the COVID-19 pandemic,” wrote Special Deputy Attorney General Matthew Tulchin. “She alleges that collectively the Defendants violated her rights to freedom of assembly, freedom of speech, equal protection, and due process as protected under the North Carolina Constitution. She also alleges that all Defendants conspired together to deprive her of those rights. Plaintiff’s allegations are implausible and fail to state a claim.”

“Plaintiffs conspiracy claim fails because, even assuming her allegations demonstrated there was an agreement amongst all Defendants, she failed to allege any facts that plausibly show an agreement amongst all the defendants to deny her constitutional rights or any illegal overt acts in furtherance of such a conspiracy,” Tulchin wrote.

Ussery’s freedom of speech claim “fails for numerous reasons,” the court filing continued. “As an initial matter, freedom of speech is not an issue in this case because EO 121 and the law of trespass involve the regulation of conduct, not protected speech. Moreover, even if freedom of speech was an issue, her claim fails because EO 121 was content and viewpoint neutral and narrowly tailored to serve a substantial government interest – the protection of the public’s health and safety by reducing the spread of a deadly disease.”

“Plaintiff’s equal protection and due process claims fail because the police officers had probable cause to arrest Plaintiff and she has failed to adequately allege that the State Defendants treated her differently than similarly situated people, let alone intentionally and deliberately discriminated against her based on her speech (or were otherwise motivated by discriminatory intent),” state defendants argued. “Finally, even if Plaintiff could plausibly allege any state constitutional claims against the State Defendants, those claims are barred by governmental immunity.”

“Raleigh defendants seek dismissal of arrested COVID protester’s suit” was originally published on www.carolinajournal.com.