Kristofer Wayne Loy, white male, 27, of 514 East Harden Street, Graham, was convicted Wednesday of misdemeanor second-degree trespass and resisting a public officer during a protest outside the Alamance County detention center on November 16, 2020.
Loy entered a plea of not guilty to both charges when his trial started Wednesday morning in Alamance County district court.
Loy’s attorney, Jamie Paulen of Paulen Solidarity Law, was subsequently unsuccessful in twice attempting to get the charges dismissed, arguing that existing state court precedent has established that members of the public have a right to be inside a public building and that her client had not been interfering with the operations of the magistrate’s office when he was arrested.
Citing an earlier case centering on a protest inside the Progress Energy building in downtown Raleigh, Paulen said, “The court held that if the premises are open to the public,” there is “implied consent” that members of the public are allowed to be there. Loy had been present at the detention center, which also houses the magistrates’ office, but no evidence had been offered to suggest that he had interfered with any of the business operations there, Paulen argued during the trial.
Paulen also asked for dismissal of the second-degree trespassing charge, based on a state law requiring the evidence to support the offense of entering or remaining “on the premises of another,” she argued. “There is no evidence as to whose property this is,” Paulen said.
The defense attorney pointed to a December 2020 opinion issued by the Court of Appeals, overturning a Rowan County woman’s convictions of disorderly conduct and resisting a public officer. In that case, Paulen noted, the court ruled that to prove the elements of the charge of resisting a public officer, the state must provide substantial evidence to support a finding that a defendant willfully and unlawfully obstructed, delayed, or resisted. The Appeals Court pointed to the absence of “substantial evidence” to support either charge in vacating the convictions.
Loy believed he had a right to be there, in the parking lot outside the Alamance County jail, and “was just holding his flag when he was arrested,” Paulen asserted.
Retired visiting district court judge Lunsford Long, III of Orange County denied Paulen’s motions to dismiss the charges, which she renewed during her closing argument.
During her opening statement, Paulen claimed that the Alamance County sheriff’s office has “an informal policy” that requires Black Lives Matter protesters to stand in a specific area, in particular, a grassy strip, which she asserted “is an invalid exercise of law enforcement power.” Rather than having a compelling basis for such a requirement, this policy is “arbitrary and capricious,” Paulen said during her opening statement.
‘An old-fashioned civil libertarian’
“Mr. Loy is an Alamance County resident and a Graham native [who] is an old-fashioned civil libertarian,” Paulen said during her opening statement Wednesday morning. “He carries copies of the Constitution in the trunk of his car and was carrying the American flag [on the night in question].”
Prior to his arrest on November 16, 2020, Loy had been with a group that followed three protesters who were charged with disrupting an Alamance County commissioners’ meeting while it was in progress inside the Alamance County Historic Court House. They were ejected from the Historic Court House and transported to the jail to be processed; two were released on written promises to appear in court, while a third protester who had other pending criminal charges was required to post a $300 secured bond as a condition for release.
Cliff Parker, the chief deputy for Alamance County sheriff’s department, and three other sheriff’s deputies testified Wednesday that Loy and the other protesters had been instructed to move to a grassy area, which is located to the right of the parking area directly in front of the jail and borders West Pine Street. While the majority complied with the instruction, Loy kept stepping off of the grassy area into the parking lot, despite being repeatedly directed to remain on the grass, Parker testified.
While the defense attorney implied at several points during the trial Wednesday that the “informal policy of the Alamance County sheriff’s department” is specifically directed at Black Lives Matter protesters, Parker and two other sheriff’s deputies characterized their actions on November 16 as part of a fairly routine procedure of asking any large group of people to move out of the path of oncoming vehicles, as well as any entrances to county-owned buildings where public business is transacted.
Deputies were trying to keep the peace and the parking lot clear
Parker recalled on the witness stand that deputies had been stationed outside the jail that night to “keep the peace and keep the [parking] lot clear,” explaining that “the public comes in that way” to conduct business at the magistrate’s office and the detention center.
The chief deputy estimated that there had been about 50 people in the group that came to the jail that night; Loy later countered that he thought the crowd had been about half that size.
“I would say it was at least 50,” Parker recalled on the witness stand Wednesday. “It may not have been quite that big; it was a fairly large group. They came in a procession, at different points. There were some that came in vehicles. The majority, while they were vocal, were moving along to the grassy area. Mr. Loy and a few others were hesitant to move. He kept saying, ‘why? Why?’”
While the group didn’t like being told to move to the grassy area, most complied, Parker testified. He acknowledged that Loy was “not physically resistant, other than he was not moving to the grassy area,” the chief deputy recalled. “He was holding his flag and kept saying, ‘tell me why; tell me why. This went on, back and forth.”
Alamance County sheriff’s investigator Jacob Hinckle testified that Loy was ultimately taken into custody for “previously being asked to move,” and that he personally instructed Loy to move to the grassy area two or three times. Tyler Smith, also an investigator with the sheriff’s department, gave a virtually identical account of the events leading to Loy’s arrest on November 16.
Loy said he had initially gone to the Historic Court House around the same time that the commissioners’ meeting started, at 7:00 p.m., and was carrying an American flag at the time “because of the outcome of the general election and the election of Joe Biden as president.” Not long thereafter, he saw several individuals “coming out, pretty flustered, at the events taking place inside” the Historic Court House, Loy explained.
Characterizing himself as a Graham activist who also owns a business in Chapel Hill, Treat-Rite Water Services, and is working on degree in history, Loy testified that, following the march and rally on October 31 that ended with pepper spray, he and other activists had gone to the commissioners’ meeting on November 16 “to, I guess, discover some meaning to it – why we were treated so harshly.”
They followed the three protesters who were charged with disrupting the commissioners’ meeting that night to provide what he termed “court support,” which he said is a common practice when protesters are arrested.
Loy insisted that, once he arrived in the jail parking lot, deputies told him to move to the grassy area and that he had asked why but was never given an answer. “I decided what they told me to do was unfair, unconstitutional, and had overstepped their bounds, potentially into a more dangerous area – more authoritarian than what we are accustomed to in this country,” Loy said under direct examination by his defense attorney.
Under cross-examination by Alamance County assistant D.A. Kevin Harrison, Loy acknowledged that he understood the instruction he had been given, to move to the grassy area, but felt the basis for it was “unsatisfactory,” as the prosecutor characterized it.
The defense called three other witnesses, all white females, who had been in the group that gathered in the parking lot in front of the jail on the night of Loy’s arrest.
Paulen argued that one of the witnesses, Marion Ellis Driver of Hillsborough, had been standing directly beside Loy in the parking lot, but she was not arrested, which was substantiated by approximately 10 seconds of cell phone video recorded at the time of the arrest and introduced during Ellis’ testimony. Two other defense witnesses corroborated the defense attorney’s account of the events surrounding Loy’s arrest.
The retired visiting district court judge agreed Wednesday that Loy had a right to question why he was being asked to move out of the parking lot. But, in declaring him guilty of both charges, Long also concluded that Loy had a duty to obey the instructions he had been given.
Long ordered Loy to pay a $100 fine and court costs. At the close of a trial that ran just over 1½ hours Wednesday, Paulen gave verbal notice of her client’s intent to appeal both convictions to Alamance County superior court.
During the jail parking lot demonstration that night, Carey Kirk Griffin, white female, 38, of 2117 East Main Street, Durham, was also charged with second-degree trespass and resisting a public officer for allegedly failing to heed a command to vacate the premises, according to her arrest warrant.
Griffin’s trial is currently scheduled to be held in district court later this month, as are the trials for the three protesters who were ejected from the historic court house and charged with disrupting an official meeting and related officials.
Continuances have been granted in four other protest-related cases that were scheduled for trial Wednesday, Harrison confirmed for an Alamance News reporter Wednesday morning.