Graham’s city council spent almost all of its two-hour meeting on Tuesday night going over a potential new city ordinance intended to update the city’s ordinance governing protests and demonstrations, in order to bring the city’s ordinance into compliance with First Amendment standards and U.S. Supreme Court precedents.
Attorney Christian Ferlan of the Charlotte law firm of Hall, Booth, Smith outlined his recommended draft of the new ordinance to city council members, who expressed reluctance to tie their own hands and those of appointed city officials as tightly as Ferlan recommended.
Ferlan emphasized that the conditions on the “time, place, and manner” of protests must be “reasonable,” as those have been litigated in various (mostly federal) lawsuits.
Graham has not had a parade or demonstration ordinance since the city council repealed one in July 2020 in the face of a lawsuit from the NAACP and others and an unfavorable ruling from a federal judge in Greensboro, who issued a temporary restraining order over the city’s restrictive requirement to obtain a permit for any protest or demonstration.
Among the most contentious of the issues discussed this week by city council members, repeatedly, was the time frame on how soon after someone requests a permit, the city would have to act to grant or deny it.
Under Ferlan’s draft, the city would have to respond within four days of a request.
Yet, as the city’s mayor Jennifer Talley noted, the state’s Open Meeting Law requires that the council give 48 hours notice before holding a special meeting.
She used as an illustration a request coming in on a Friday afternoon, which would apparently start the clock ticking on Ferlan’s four-day deadline for the city to respond, which she considered to be too short a time limit for the city to respond.
Many of Talley’s and others’ illustrations obliquely referred to various episodes and examples from the 2020 protests that Graham endured that year, mostly around Court Square. Talley said the city had 48 protests in the course of 52 weeks during one particularly contentious stretch; most of those began after Memorial Day in 2020 when George Floyd was killed by a police officer in Minneapolis, Minnesota.
Graham police and the Alamance County sheriff’s department were both criticized for their use of pepper spray at an October 31, 2020 rally in Graham. The city police used it to get protesters out of the street, while the sheriff’s deputies used it to disperse the crowd when the demonstration was determined by law enforcement officials to be terminated for having violated a county permit for courthouse grounds.
Among the issues considered: Talley’s example of protesters yelling at restaurant patrons dining outside at several restaurants on the perimeter of Court Square and the use of sound amplification equipment, in general and specifically outside of city council chambers. At least two council meetings were conducted while protesters used bullhorns outside the council chambers during monthly city council meetings.
Although there were fewer than a dozen protesters, several used bullhorns aimed at the council chambers during an August 9, 2022 city council meeting, which was heard inside, sometimes disrupting comments from public speakers or council members.
August 9, 2022 courtesy of Tony Crider.
Other concerns included protesters spilling into the streets and/or deliberately trying to stop or impede traffic and how to keep two opposing groups apart. “Safety has to be our paramount consideration,” she said.
Talley also asked about whether the city should have requirements for insurance, security provided by sponsors of an event, or “port-a-johns,” especially in cases when demonstrations could become large.
Ferlan said he had not included those requirements since they had not been a part of the city’s previous demonstration ordinance.
However, councilman Bobby Chin said the attorney should draw from other parts of the city’s ordinances, under its Parks and Recreation sections, where such requirements are included.
The attorney also referred to the overall approach as a “balancing game,” and he emphasized to the council members that the criteria on which the city and its city council must act must have “objective factors.” He said that the ordinance needs to be “narrowly drawn” and tailored to general factors, not specifics that might be deemed to be discriminating against certain viewpoints.
There were several separate permits required under the attorney’s proposal: a parade permit (for ten or more people or there or ore vehicles); demonstrations (which must not be determined based on a sponsor’s “political, social, or religious grounds or based upon the content of the views expressed”); sound permits; and closing city streets.
The Charlotte attorney agreed to bring back some revisions at the council’s next meeting, on October 10.
It was noted that the council is not obligated to conduct a public hearing on the changes and has no plans to do so.
City council members may adopt a final ordinance at their October meeting.
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