Police group takes note of Wake DA’s arguments in COVID arrest suit

A lawsuit stemming from an arrest at a Raleigh COVID shutdown protest six years ago is attracting attention now from a multistate group representing police.

The Southern States Police Benevolent Association requested permission Friday to file a friend-of-the-court brief with the North Carolina Court of Appeals in the case Ussery v. Cooper.

SSPBA neither supports nor opposes plaintiff Monica Ussery’s case. Ussery sued law enforcement officers and others involved in her arrest at a ReOpenNC protest near the governor’s mansion in 2020.

The police group’s brief targets arguments from Wake County District Attorney Lorrin Freeman, a defendant in the dispute.

“The SSPBA takes no position on the sufficiency of Plaintiff’s allegations or the merits of her claims,” the group’s lawyers wrote. “It seeks leave for one purpose only: to assist this Court in understanding the scope of prosecutorial immunity under the North Carolina Constitution — a question raised in Defendant Freeman’s brief whose resolution will carry consequences well beyond this case.”

“Of particular relevance here, the PBA has for years assisted in the representation of law enforcement officers pursuing Corum claims arising from the conduct of district attorneys,” according to the court filing. A Corum claim is a North Carolina-specific lawsuit based on alleged violations of state constitutional rights.

“Through that work, the PBA has developed substantial practical experience with the doctrine of prosecutorial immunity in North Carolina — how it is invoked, how it is litigated, and where its boundaries lie,” the SSPBA court document explained. “The PBA has furthermore prosecuted and defended myriad claims arising under both the North Carolina Constitution and the Constitution of the United States on behalf of its members.”

“In her brief, Defendant Freeman contends that Article IV, Section 18 of the North Carolina Constitution itself confers ‘immunity’ for the exercise of her ‘constitutional authority,’” the police group’s lawyers wrote. “That contention is different” from the argument Freeman offered in her motion to dismiss Ussery’s case. It “presents a question of exceptional importance to the PBA’s members.”

“Across North Carolina, law enforcement officers have brought Corum claims alleging the deprivation of their constitutional rights by district attorneys, and district attorneys have invoked prosecutorial immunity in response,” SSPBA lawyers wrote. “The question whether that immunity is an established common law doctrine or instead a novel, broader absolute constitutional immunity will affect not only this appeal, but in cases involving the rights of law enforcement officers, and the accountability of district attorneys in future claims by citizens of the State of North Carolina.”

“The PBA’s interest is in ensuring that this Court resolves the question presented with the benefit of a thorough account of the text, history, and precedent bearing on Article IV, Section 18,” the court filing continued.

Raleigh filed a Feb. 27 brief asking the Appeals Court to dismiss city defendants from Ussery’s lawsuit.

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 the complaint.

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,” Ussery’s 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 then-Gov. Roy 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.”

“Police group takes note of Wake DA’s arguments in COVID arrest suit” was originally published on www.carolinajournal.com.