NC legislature approves riot penalties bill, setting up possible veto showdown with Cooper

North Carolina lawmakers gave final approval to legislation that would toughen punishments for violent protests — a response to 2020 demonstrations over racial injustice that at times turned into tumult.

Thursday's approval, by a 27-16 vote that was largely along party lines, creates a potential veto showdown with Democratic Gov. Roy Cooper, who two years ago successfully vetoed a similar measure. But Republican seat gains in the fall elections, combined with some bipartisan support for the bill in the House, raises the possibility of an override this session.

Under the new measure, punishments already in place to willfully participate in a riot or incite one — and to incur serious injury or property damages during a riot — would increase. And there would be a new felony crime for participating in a riot that leads to a death.

Sen. Danny Britt, R-Robeson, said House Bill 40 would protect the constitutional rights of peaceful protesters against disrupters intent on rioting. "Whenever bricks are getting thrown at law enforcement officers, whenever our communities are getting damaged by violent actors, that causes harm to these folks who want to protest safely," Britt said.

Sen. Natalie Murdock, D-Durham, responded that state law already includes penalties for rioting and property damage.

"This bill is not about fixing real problems with our laws," Murdock said. "If this bill were to become law, it would have a chilling effect on North Carolinians’ First Amendment rights, automatically increasing the risk that protesting could lead to significant prison time and a felony record that may follow them for the rest of their lives."

The bill would also let property owners whose businesses are damaged during protests seek compensation against a perpetrator equal to three times the monetary damage. And new bond and pretrial release rules for defendants accused of rioting or looting would keep them in jail for up to 24 hours until a judge sets conditions of release. Bill supporters have complained that otherwise, defendants can be released immediately by a magistrate.

One concern cited by some Democrats, as well as social justice and civil rights groups, is that the bill would allow a protesters to be jailed and charged with a felony for "urging" others to riot, even if no riot was underway at the time. It's a different, looser standard than "incitement," and it would be up to law enforcement to draw the line between protesting and "urging" rioting.

Republicans voted down an amendment by Sen. Natasha Marcus, D-Mecklenburg, to tighten the language in that section.

"This bill violates the First Amendment rights of free speech by using overly broad language," Marcus warned. "If you don't fix it, you'll be triggering years of costly litigation, litigation that the taxpayers of North Carolina will have to pay for, to defend an unconstitutional law."

Senate Leader Phil Berger brushed aside that concern, pointing out that "reasonable restrictions" in the service of public safety are allowed for all constitutional rights, including those in the First Amendment. He compared it to shouting "fire" in a crowded theater but conceded that others might see it differently.

"That’s why they build courthouses — to resolve those issues," Berger told WRAL News.

Cooper has 10 days to decide whether to sign the bill, veto it or let it become law without his signature.

In his message vetoing the 2021 bill, Cooper said legislation was “unnecessary and is intended to intimidate and deter people from exercising their constitutional rights to peacefully protest.”

Last month in the House, six Democrats joined all Republicans present in voting for the measure, shepherded by Speaker Tim Moore, as was the 2021 version. Another primary sponsor this year is Rep. Shelly Willingham, D-Edgecombe, a former Washington, D.C., police officer.

The House vote, if left intact, would be veto-proof. Senate Republicans already hold a veto-proof seat advantage in their chamber. One Senate Democrat supported the measure on Thursday.

Nine states have passed similar protest laws since June 2020, according to the International Center for Not-For-Profit Law. North Carolina is among several states currently considering them.