ALLEN v. CITY OF GRAHAM, NC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SYLVESTER ALLEN, JR., et al., )

)

Plaintiffs, )

)

v. ) 1:20-CV-997

)

CITY OF GRAHAM, et al., )

)

Defendants. )

)

---------------------------------- )

GREGORY DRUMWRIGHT, et al., )

)

Plaintiffs, )

)

v. ) 1:20-CV-998

)

TERRY JOHNSON, individually and )

in his official capacity as Alamance )

County Sheriff, et al., )

)

Defendants.

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge.

These consolidated cases arise out of a political demonstration held on October 31,

2020, in Graham, North Carolina. The plaintiffs allege that the defendants—the City and

various City and County law enforcement officers—used pepper spray and overly violent

crowd-control tactics to disrupt a peaceful protest and prevent the plaintiffs and others

from voting, violating numerous federal and state rights in the process.

After the defendants moved to dismiss, the Allen parties resolved their disputes,

subject to certain conditions, and the Court has stayed that case. See Docs. 73, 76. This

order resolves the motions to dismiss in the companion case, Drumwright v. Cole, 1:20-

cv-998 (M.D.N.C.).1

The Court concludes that the Drumwright complaint states claims on which relief

may be granted, except for the federal constitutional claims against the named City

defendants in their official capacities. Those claims will be dismissed as redundant.

Otherwise, the motions to dismiss will be denied.

I. The Parties and the Causes of Action

The Drumwright plaintiffs include several individuals and two unincorporated

entities. The individuals are Reverend Gregory Drumwright, Edith Ann Jones, Faith

Cook, Janet Nesbitt, Quenclyn Ellison, Melanie Mitchell, Ernestine Lewis Ward, Edith

Ward, Avery Harvey, and Ashley Reed Batten. Ms. Ellison and Ms. Mitchell bring

claims on behalf of themselves and their minor children. The entities are Justice 4 The

Next Generation and Alamance Alliance 4 Justice.

The amended complaint identifies seven causes of action. As named in the

heading for each cause of action, they are:

1. “Violation of the First Amendment” under 42 U.S.C. § 1983;2

2. “Violation of the Fourth Amendment” under 42 U.S.C. § 1983;3

1 Because all relevant pleadings and briefs have been filed in Allen v. City of Graham, 1:20-

cv-997 (M.D.N.C.), the lead case, see Doc. 22 (granting motion to consolidate), the Court will

use citations to the Allen docket.

2 Doc. 25 at ¶¶ 175–78.

3 Doc. 25 at ¶¶ 179–82.

3. “Violation of Section 11(b) of the Voting Rights Act” under 52 U.S.C. §

10307;4

4. “Ku Klux Klan Act of 1871” under 42 U.S.C. § 1985(3);5

5. “Violation of Article I, Section 14 of the North Carolina Constitution;”6

6. “Violation of Article I, Section 12 of the North Carolina Constitution;”7

7. “Common Law Assault and Battery/Excessive Force.”8

In addition to the City of Graham, the plaintiffs bring claims against several

named law enforcement officers as well as unidentified law enforcement “Doe”

defendants. The defendants can usefully be divided into two groups: the City defendants

and the County defendants.

The City defendants are the City of Graham; Mary Kristine Cole, individually and

in her official capacity as Chief of the Graham Police Department; Joaquin Velez,

individually and in his official capacity as Lieutenant of the Patrol Division of the GPD;

Jonathan Franks, individually and in his official capacity as consultant to the Alamance

County Sheriff and the Graham Police Chief; and John and Jane Does, presently

unknown officers of the GPD.

4 Doc. 25 at ¶¶ 183–88.

5 Doc. 25 at ¶¶ 189–99.

6 Doc. 25 at ¶¶ 200–05.

7 Doc. 25 at ¶¶ 206–10.

8 Doc. 25 at ¶¶ 211–13.

The County defendants are Terry Johnson, individually and in his official capacity

as Alamance County Sheriff; Cliff Parker, individually and in his official capacity as

Alamance County Chief Deputy Sheriff; and John and Jane Does, presently unknown

officers of the Alamance County Sheriff’s Office.

II. Procedural Posture

Before settling with the Allen plaintiffs, the City defendants filed a single motion

to dismiss directed at both the Allen and the Drumright complaints. Doc. 45. The

County defendants filed separate dispositive motions directed towards each complaint.

See Docs. 50 (directed at Allen), 52 (directed at Drumwright). The motions as to the

complaint in Allen will be held in abeyance pending finalization of the settlement.

The pending motions to dismiss the Drumright complaint cite both Federal Rules

of Civil Procedure 12(b) and 12(c). Doc. 45 at 1; Doc. 52 at 1. The briefing addresses

only Rule 12(b)(6). The Court will assess the standing issues under the standards

applicable to a Rule 12(b)(1) motion and the remaining issues under the standards

applicable to a Rule 12(b)(6) motion.9

III. The Facts as Alleged

On the final day of early voting and voter registration for the 2020 general election

in North Carolina, the individual defendants and other officers pepper-sprayed the

9 Technically, challenges to standing are made pursuant to Rule 12(b)(1), not Rule 12(b)(6)

or 12(c). See Pitt Cnty. v. Hotels.com, L.P., 553 F.3d 308, 311 (4th Cir. 2009) (noting that the

district court recharacterized a defendant’s challenge to standing from a motion to dismiss for

failure to state a claim under Rule 12(b)(6) to a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1)). The Court will treat this aspect of the motions as if made

pursuant to Rule 12(b)(1), given its independent duty to evaluate subject matter jurisdiction.

plaintiffs while they were participating in the “I am Change March to the Polls,” in the

city of Graham. Doc. 25 at ¶ 1. The March was organized as a peaceful “march to the

polls” that was “focused on racial justice issues,” like raising awareness of police

brutality, and it was intended to encourage members of the community who had not

already voted to do so. Id. at ¶¶ 9–12, 68.

The March began at a local church and was scheduled to stop at Court Square,

near the Confederate monument in front of the Alamance County courthouse where the

organizers planned to speak from a small stage with sound amplifiers. Id. at ¶¶ 72, 88.

Organizers then planned for the March to continue towards the Elm Street polling place,

an early-voting site where attendees could register and vote in the 2020 general election.

Id. at ¶¶ 9, 72, 80. The organizers had a permit for the March and rally, id. at ¶¶ 71–72,

75, 91, and a county attorney authorized the plaintiffs to erect a small stage on courthouse

grounds. Id. at ¶ 82.

The March began and proceeded peacefully. Id. at ¶¶ 1, 88. The marchers

complied with COVID-19 protocols. Id. at ¶¶ 86, 95. When the marchers arrived at

Court Square, they were met by armed sheriff’s deputies. Id. at ¶ 96. Counter-protestors

were also present but left upon instruction from officers soon after the marchers arrived.

Id. at ¶ 145.

Marchers knelt in silence for 8 minutes and 46 seconds in remembrance of George

Floyd, who was killed by police a few months earlier. Id. at ¶ 95. Immediately after the

remembrance, and before many could even get back up to their feet, officers began

indiscriminately discharging pepper spray into the crowd, which included children, the

elderly, and those with disabilities. Id. at ¶¶ 1, 99–109. The chemical spray irritated and

burned the eyes and throats of some plaintiffs. See, e.g., id. at ¶¶ 101–08. Some March

participants who were in a nearby park attempted to cross over to the courthouse grounds

but were stopped and arrested by GPD officers. Id. at ¶ 110.

Despite the pepper spray, the rally continued, and Rev. Drumwright was able to

set up the stage and a sound system. Id. at ¶¶ 99, 111. After several speakers had

spoken, deputies attempted to disconnect the sound system without warning or

explanation. Id. at ¶¶ 114–15. Shortly after that, Graham police officers and Alamance

County deputy sheriffs worked in coordination to pepper spray the marchers a second

time. Id. at ¶ 116. Several of the named plaintiffs and members of Alamance Alliance

and Next Generation were hit by the second spray. Id. at ¶¶ 116–22.

GPD and ACSO officers ordered the marchers to leave the area. Id. at ¶ 123.

Without providing time to disperse or instruction on where or how to leave the area, the

officers began spraying a third round of pepper spray into the crowd. Id. at ¶ 124.

Several of the named plaintiffs and members of Alamance Alliance and Next Generation

were also hit by this third round of pepper spray. Id. at ¶ 126.

Some of the marchers continued to the Elm Street polling place as planned but

took a longer route to avoid officers. Id. at ¶¶ 132–33. Many marchers who had intended

to vote that day were unable to because of injuries from the defendants’ pepper spray. Id.

at ¶¶ 25, 144, 147. Members of Next Generation and Alamance Alliance, who were

lawfully registered voters in Alamance County, were intimidated from voting by the

defendants’ actions. Id. at ¶¶ 152–53. Multiple individual plaintiffs were fearful of

attempting to vote on Election Day, three days after the March. Id. at ¶¶ 150–51.

Other factual allegations will be recited as necessary to address specific issues.

IV. The § 1983 Claims Against the Individual City Defendants in Their

Official Capacities

The City defendants contend that because the plaintiffs bring their claims against

the City, the same claims against the individual City defendants in their official capacity

are redundant and should be dismissed. Doc. 46 at 17–18; see Kentucky v. Graham, 473

U.S. 159, 166 (1985) (treating an official capacity suit “as a suit against the entity”);

Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (upholding dismissal of official-

capacity claims under § 1983 as redundant). The plaintiffs acknowledge the City

defendants’ argument but do not address it. Doc. 56 at 13.

The cases cited by the City defendants support dismissal of the § 1983 claims

against the individual City defendants in their official capacities. Those claims are

redundant to the § 1983 claims against the City and will be dismissed.

The City does not explicitly contend that any state claims or federal statutory

claims are redundant, nor does it cite any cases addressing anything other than § 1983

claims. See infra note 12. To the extent the motion is directed to any state or federal

statutory claims, it will be denied without prejudice.

V. Entity Standing

Both the County and City defendants challenge the standing of entity-plaintiffs

Alamance Alliance and Next Generation. Doc. 46 at 19; Doc. 53 at 5. The defendants

assert that these unincorporated associations cannot bring suit in North Carolina because

they have not filed an assumed business name certification as required by N.C. Gen. Stat.

§ 1-69.1(a)(3). Doc. 46 at 20; Doc. 53 at 5–6. But “standing to sue in any Article III

court is a federal question which does not depend on the party’s standing in state court.”

Md. Shall Issue, Inc. v. Hogan, 971 F.3d 199, 219 (4th Cir. 2020) (cleaned up); see also

Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 722, 731 (7th Cir. 2020) (stating

that state law “obviously cannot alter the scope of the federal judicial power.”).

The County and City defendants also contend that the entity plaintiffs have not

established Article III standing. Article III standing is a subject matter jurisdiction issue.

Beyond Sys., Inc. v. Kraft Foods, Inc., 777 F.3d 712, 715 (4th Cir. 2015).

While the plaintiffs bear the burden of clearly alleging facts “demonstrating that

[they are] proper part[ies] to invoke judicial resolution of the dispute,” Warth v. Seldin,

422 U.S. 490, 518 (1975); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016),

the district court should dismiss a case on the pleadings for lack of subject matter

jurisdiction “only if the material jurisdictional facts are not in dispute and the moving

party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642,

647 (4th Cir. 1999) (cleaned up). When a party moves to dismiss on the basis that a

complaint fails to allege facts supporting the Court’s subject matter jurisdiction, the

plaintiff “is afforded the same procedural protection as he would receive under a Rule

12(b)(6) consideration.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). And

where, as here, a defendant has not provided evidence to dispute the veracity of the

jurisdictional allegations in the complaint, courts accept facts alleged in the complaint as

true. Kerns v. United States, 585 F.3d 187, 192–93 (4th Cir. 2009).

Unincorporated organizations, like the entity plaintiffs here, may satisfy Article III

standing in one of two ways. They may show organizational standing to sue on their own

behalf, or they may show associational standing to sue on behalf of one or more of their

members. Guilford Coll. v. McAleenan, 389 F. Supp. 3d 377, 388 (M.D.N.C. 2019).

Both plaintiff organizations have made a facial showing of Article III standing to pursue

their claims.

First, both entities have organizational standing because the allegations make a

facial showing that the actions by the City and County defendants impeded their efforts to

carry out their organizational missions and purposes. Havens Realty Corp. v. Coleman,

455 U.S. 363, 379 (1982) (holding “there can be no question that [an] organization has

suffered injury in fact” where defendants’ actions impaired the organization’s ability to

provide its services). Next Generation is an unincorporated association of community

organizations that promotes social justice and an end to police violence and other forms

of systemic racial oppression. Doc. 25 at ¶ 9. Alamance Alliance is an unincorporated

organization of Alamance community leaders, parents, and youth with a mission of,

among other things, fighting against racism, injustice, and oppression and promoting

social equality in Alamance County. Id. at ¶ 11. Both organizations allege that they

dedicated time and resources to help organize the March and to encourage their members

to participate as a means of furthering their organizational goals. Id. at ¶¶ 10, 12. The

defendants’ conduct forced the March to end early and directly interfered with each

group’s mission. The entity plaintiffs do not have to prove their injuries in the complaint,

and they have sufficiently alleged that they were injured by the defendants’ conduct. The

County defendants’ Lujan contention that the plaintiffs’ injuries are unlikely to be

redressed by a favorable decision is conclusory at best.10 See Doc. 53 at 8; see also Lujan

v. Defs. Of Wildlife, 504 U.S. 555, 560–61 (1992) (establishing standing requirements of

injury, traceability, and redressability).

Second, both organizations have also made a facial showing of associational

standing. An organization has associational standing to sue on behalf of its members if:

(1) “at least one of its identified members would otherwise have standing to sue in their

own right;” (2) “the interests at stake are germane to the organization’s purpose;” and (3)

“neither the claim asserted nor the relief requested requires the participation of individual

members in the lawsuit.” Outdoor Amusement Bus. Ass’n, Inc. v. Dep’t of Homeland

Sec., 983 F.3d 671, 683 (4th Cir. 2020) (cleaned up).

As to the first element, the complaint alleges that Alamance Alliance President

Quenclyn Ellison, Doc. 25 at ¶ 15, and Next Generation’s lead organizer, Gregory

Drumright, id. at ¶ 13, were harmed by the defendants, along with many other unnamed

members of each organization. Id. at ¶¶ 152–53. The County defendants contend that

Next Generation is an unincorporated association of community organizations and does

10 In their brief, the County defendants assert that the plaintiffs must seek relief, which, if

granted, will benefit the injured members of the association. Doc. 53 at 8–9 (quoting Hunt v.

Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). But they do not clearly contend

that this requirement has not been met here. The Court will not address this issue, if it is one, on

the undeveloped factual record.

not represent the constitutional rights of individuals. Doc. 53 at 8. The injury to Rev.

Drumwright is sufficient to facially satisfy the first element of representational standing.

As to the second element, the interests at stake are germane to each group’s

organizational purpose. These interests include the freedom to peacefully protest police

violence and racial justice and the freedom to participate in political demonstrations, like

the March and other similar get-out-the-vote drives. These interests are within Alamance

Alliance’s mission of “fight[ing] for political, educational, social, and economic equality

for all citizens of Alamance County,” Doc. 25 at ¶ 11, and Next Generation’s

organizational purpose of ending “police violence and other forms of systemic racial

oppression.” Id. at ¶ 9. Each organization seeks to promote their mission by organizing

and leading public demonstrations like the March and similar vote drives. Id. at ¶¶ 9, 11.

As to the third element, the claims asserted and the relief requested will not

require evidence and testimony from all individual association members. At most, the

litigation will require evidence and testimony from a representative sample of

organization members who attended the March. Many courts have found that limited

participation by individual members does not defeat associational standing. Ass’n of Am.

Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 551 (5th Cir. 2010)

(approving associational standing where organization could produce “a sampling of

evidence from its members”); accord, e.g., Am. Humanist Ass’n v. Maryland-Nat’l

Capital Park & Planning Comm’n, 874 F.3d 195, 204 (4th Cir. 2017), rev’d and

remanded on other grounds sub nom. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067

(2019) (granting associational standing where case would require testimony and

participation by at least some members).

The City defendants contend that organizations do not have standing to assert the

rights of their members in § 1983 cases, relying on authority from the Second Circuit.

See Doc. 46 at 20. First, as discussed supra, the entity plaintiffs have asserted their own

injuries. Second, as to associational standing, other circuits disagree with the Second

Circuit, see Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay,

868 F.3d 104, 123 (2d Cir. 2017) (Jacobs, J., dissenting and collecting cases), and the

Fourth Circuit has applied associational standing rules in § 1983 cases. See, e.g., Md.

Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991).

Alamance Alliance and Next Generation have facially alleged organizational and

associational standing to pursue their asserted claims. The motions to dismiss for lack of

standing and subject matter jurisdiction will be denied. As standing “remains open to

review at all stages of the litigation,” Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S.

249, 255 (1994), this denial is without prejudice to a summary judgment motion.

VI. Sufficiency of the Allegations

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). Legal conclusions “must be supported by factual allegations” that amount

to more than “unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Id.

A. The Common Law Assault and Battery Claim

In Count VII, the plaintiffs assert a common law assault and battery claim against

40 unnamed John and Jane Does of the GPD and the ACSO in their individual capacities.

Doc. 25 at ¶¶ 211–13. The plaintiffs do not assert this claim against any of the named

defendants.

The County defendants appear to misapprehend this fact, as they contend that the

plaintiffs have failed to state an assault and battery claim against Sheriff Johnson and

Deputy Sheriff Parker. Doc. 53 at 10–14. But as mentioned, the plaintiffs have not sued

any individual defendants for assault and battery. The motion by Sheriff Johnson and

Deputy Sheriff Parker as to this claim will be denied as unnecessary.

The City defendants contend that the assault claims against the as-yet-unidentified

Graham police officers should be dismissed for failing to plead actionable facts sufficient

to overcome public official immunity to state claim liability. Doc. 46 at 18. The

attorneys for the City have asserted that they do not represent these defendants and have

refused to accept service on their behalf. See Doc. 57 at 3 (“On December 14 and 15,

2020, counsel for the City of Graham Defendants . . . declined to accept or facilitate

service of the Doe Defendants employed by their clients.”). Because counsel may not

move to dismiss claims against defendants they do not represent, the City’s motion as to

the unidentified Doe defendants will also be denied.

B. The Claims under the North Carolina Constitution

The plaintiffs bring direct claims against the County and City defendants under the

North Carolina Constitution for violations of their rights to freedom of speech and

freedom of assembly. Doc. 25 at ¶¶ 200–10. To assert a direct constitutional claim, “a

plaintiff must allege that no adequate state remedy exists to provide relief from the

injury.” Copper ex rel. Copper v. Denlinger, 363 N.C. 784, 788, 688 S.E.2d 426, 428

(2010); Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992). “An

adequate state remedy exists if, assuming the plaintiff’s claim is successful, the remedy

would compensate the plaintiff for the same injury alleged in the direct constitutional

claim.” Estate of Fennell ex rel. Fennell v. Stephenson, 137 N.C. App. 430, 437, 528

S.E.2d. 911, 915–16 (2000), reversed in part on other grounds, 354 N.C. 327, 554 S.E.2d

629 (2001).

The County and City defendants contend that the plaintiffs are precluded from

bringing direct claims under the North Carolina Constitution because they have asserted

federal § 1983 claims and state common law claims, which, if successful, would

compensate the plaintiffs for their injuries. Doc. 46 at 12–13; Doc. 53 at 14–15. But

they do not provide any cases supporting their contention that the plaintiffs’ federal

claims are an adequate state remedy for violations of distinct and independent state

constitutional rights. See Doc. 4 at ¶ 1 (Standard Order reminding parties that “legal

arguments require citation to legal authority”); see also infra note 12. Nor do they

support their contention that the plaintiffs’ common law claims for assault and battery are

an adequate remedy for free speech and assembly injuries, and North Carolina courts

have ruled that no state remedy exists for the violation of the state constitutional right to

freedom of speech. Corum, 330 N.C. at 783, 413 S.E.2d at 290 (“Having no other

remedy, our common law guarantees plaintiff a direct action under the State Constitution

for alleged violations of his constitutional freedom of speech rights.”); see also

Randleman v. Johnson, 162 F. Supp. 3d 482, 489–90 (M.D.N.C. 2016) (rejecting an

unsupported argument that the mere assertion of another state law claim precludes direct

action under the state constitution).

The County and City defendants have not shown that the plaintiffs are precluded

from advancing direct claims under the North Carolina Constitution. Both motions will

be denied as to the state constitutional claims.

C. The Voting Rights Act Claim

The plaintiffs bring a cause of action under § 11(b) of the Voting Rights Act,

which is codified at 52 U.S.C. § 10307. See Pa. Democratic Party v. Republican Party of

Pa., No. 16-5664, 2016 WL 6582659, at *4 (E.D. Pa. Nov. 7, 2016). The statute

prohibits conduct that “intimidate[s],” “threaten[s],” or “coerce[s]” someone who is

“voting, “attempting to vote,” or “urging or aiding any person to vote or attempt to vote.”

52 U.S.C. § 10307(b). Multiple courts have found that the statute extends to private

conduct and establishes a private cause of action. Nat’l Coal. on Black Civic

Participation v. Wohl, No. 20 Civ. 8668 (VM), 2021 WL 480818, at *5 (S.D.N.Y. Jan.

12, 2021) (collecting cases); see also League of United Latin Am. Citizens – Richmond

Region Council 4614 (LULAC) v. Pub. Interest Legal Found., No. 1:18-cv-00423, 2018

WL 3848404, at *3 (E.D. Va. Aug. 13, 2018) (holding that the statute reaches private

conduct).

The plaintiffs allege that the County and City defendants used physical force and

pepper spray to intimidate and prevent the plaintiffs from voting during a peaceful march

to the polls, one block from where they intended to register to vote and cast ballots on the

final day of early voting in North Carolina. Doc. 25 at ¶¶ 99, 116, 124, 131, 133, 144,

151–53, 155–56, 162, 186. The plaintiffs also allege that many of them felt threatened

and intimidated by this unnecessary and excessive force, which halted the march to the

polls and deterred many plaintiffs from voting in the 2020 election. See, e.g., id. at ¶¶ 1,

3, 5, 106, 114–116, 119, 123–27, 133, 144, 151–56, 162, 185–87. The use of physical

violence and pepper spray to deter an individual from voting or engaging in voting-

related activity states a plausible § 11(b) claim. See Katzenbach v. Original Knights of

Ku Klux Klan, 250 F. Supp. 330, 341 (E.D. La. 1965) (citing violence against individuals

“participating in a march . . . to protest denial of equal rights” as actionable voter

intimidation under § 11(b)’s predecessor statute).

The County defendants contend that the plaintiffs have not alleged that the

defendants’ actions were acts of intimidation or attempts to intimidate within the meaning

of the statute. Doc. 53 at 18. There is limited case law discussing what “threaten” and

“intimidate” mean in the context of § 11(b), but at least one court has held that alleged

conduct that “put[s] [an individual] in fear of harassment and interfere[s] with their right

to vote” is “intimidation sufficient to support [a] § 11(b) claim.” LULAC, 2018 WL

3848404 at *4. Other courts addressing § 11(b) and similar language in other voting-

rights statutes have gone so far as to find that even nonviolent actions can constitute

impermissible threats, intimidation, or coercion. See Nat’l Coal. on Black Civic

Participation, 2021 WL 480818 at *5 (collecting cases). This argument is better

addressed on a more developed factual record.

The City defendants contend that the plaintiffs must allege facts supporting an

inference that voting rights were denied based on race or color. Doc. 46 at 6. The one

case they cite, Acosta v. Democratic City Comm., 288 F. Supp. 3d 597, 647–48 (E.D. Pa.

2018), does not so hold. The Acosta court construed the complaint as arising under § 2 of

the VRA, id. at 647, not § 11(b), and nothing in § 11(b) mentions race or color. And

while the Acosta court noted that the plaintiffs did not allege they were denied the right to

vote based on race or color, that was simply an example of the dearth of factual

allegations in the complaint. The Acosta court made it clear that the claim was dismissed

because the plaintiffs made only a passing reference to the Voting Rights Act and did not

include any factual allegations to support the claim. Id. This argument is without merit.

The City defendants also contend that the plaintiffs do not allege that they were

voting or attempting to vote at the time of the pepper-spraying and that an allegation of

misconduct unrelated to voting, but which thereafter has an adverse effect on voting,

cannot support a VRA claim. Doc. 46 at 6–7. But the plaintiffs allege that at least some

members of their group were on their way to vote. Doc. 25 at ¶¶ 14, 25–26, 144, 152–53,

155. And in any event, the language of the statute does not support the City’s argument,

as it specifically protects “urging” others to vote or attempt to vote. 52 U.S.C.

§ 10307(b). Even the case cited by the City defendants does not directly support their

argument, and there are many cases holding that § 11(b) protects not just voting but

voting-related conduct, which includes encouraging others to vote or helping register

other voters. See, e.g., National Coal. On Black Civic Participation, 2020 WL 6305325

at *12; LULAC, 2018 WL 3848404 at *4.

The County and City defendants both contend that the plaintiffs did not allege that

the defendants viewed or treated the March as a voting activity and therefore that the

defendant officials did not have the subjective intent to, or purpose of, interfering with

the right to vote. Doc. 46 at 7; Doc. 53 at 18. First, neither group of defendants cite any

cases supporting their contention that subjective intent to interfere is an element of this

claim, and the statute itself does not directly mention intent.11 The Court need not do the

legal research on this question if the defendants did not think it worth their time. See

Cathey v. Wake Forest Univ. Baptist Med. Ctr., 90 F. Supp. 3d 493, 509 (M.D.N.C.

2015). Even assuming this is an element, the plaintiffs allege that the March was

specifically identified as a “March to the Polls,” and the complaint details the plaintiffs’

efforts in planning the March weeks in advance, including by applying for a permit from

the County officials and by providing details to both the County and City officials about

where, when, and how the plaintiffs planned to proceed with the March. Doc. 25 at 67–

83. It is a plausible inference at this stage that the defendants knew one of the purposes

of the March was to support voting. The causation or intent aspects of the cause of action

are better evaluated on a factual record with more developed legal argument.

The County and City motions will be denied as to the § 11(b) claim.

D. The 42 U.S.C. § 1985(3) Claim

The plaintiffs bring a claim against the County and City defendants under 42

U.S.C. § 1985(3), the Ku Klux Klan Act of 1871. Doc. 25 at ¶¶ 189–99. Section 1985(3)

11 At least one court has held that § 11(b) does not include a specific intent or racial animus

element. See LULAC, 2018 WL 3848404 at *3–4.

creates a private cause of action, in relevant part, “if two or more persons conspire to

prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote”

from voting. 42 U.S.C. § 1985(3).

The County defendants contend that dismissal is warranted because the plaintiffs

have not alleged any facts to support their claim of a conspiracy or agreement. Doc. 53 at

19–20. This is not so. See, e.g., Doc. 25 at ¶ 31 (alleging a consultant gave orders and

assigned duties to both City and County law enforcement officers), ¶ 123 (alleging City

and County officers worked in coordination in shouting at marchers to disperse), ¶ 154

(alleging named City and County actors planned and approved violent crowd-control

tactics used by City and County officers). Drawing all reasonable inferences in the

plaintiffs’ favor, the complaint states a plausible claim.12 The motion to dismiss this

claim will be denied.

E. The § 1983 Claims

1. The City of Graham’s Municipal Liability

The City defendants contend that the plaintiffs have failed to allege facts sufficient

to establish municipal liability for their federal constitutional claims under § 1983. Doc.

46 at 7–12. It is well established that a municipality may be liable under § 1983 if a

municipal policymaker approves or ratifies unconstitutional acts. Monell v. Dep’t of Soc.

12 The City defendants offer no substantive argument about this claim, referencing it only in a

conclusory footnote. Doc. 46 at 12 n.7. The Local Rules explicitly state that an argument must

be supported by citation to the record and legal authority. See LR 7.2(a). An argument is

waived where the party fails to cite “legal authority of any kind.” Hayes v. Self-Help Credit

Union, No. 13-cv-880, 2014 WL 4198412, at *2 (M.D.N.C. Aug. 22, 2014).

Servs., 436 U.S. 658, 690 (1978); Semple v. City of Moundsville, 195 F.3d 708, 712 (4th

Cir. 1999). The plaintiffs have adequately alleged that Chief Cole had final

policymaking authority and exercised it to deprive them of their constitutional rights.

Doc. 25 at ¶¶ 35–36. The motion to dismiss the federal constitutional claims against the

City on this basis will be denied.

To the extent that the City defendants contend that Chief Cole did not have actual

authority to ratify the use of pepper spray as a municipal policymaker, or that she did not

ratify the use or pepper spray at all, that factual argument is premature. Whether an

official possesses final authority to establish or ratify municipal policy is a fact-intensive

inquiry usually inappropriate for resolution on a motion to dismiss. See, e.g., Hunter v.

Town of Mocksville, 897 F.3d 538, 556–57 (4th Cir. 2018) (assessing final policy maker

authority on developed factual record); Davidson v. Loudoun Cnty. Bd. of Supervisors,

No. 16-cv-932 (JCC/IDD), 2016 WL 4801617, at *6 (E.D. Va. Sept. 14, 2016) (“Whether

ratification has taken place is an issue of fact.”).

2. The First Amendment Claim Against the County

Defendants

The County defendants assert that the facts alleged show that the plaintiffs’ First

Amendment claim cannot succeed. Doc. 53 at 15–16; see Doc. 25 at ¶¶ 175–78. But the

County defendants rely on a selective recitation of only some of the facts alleged and

ignore allegations that disrupt their narrative. The plaintiffs allege that the demonstration

was peaceful and that the defendants used force to prevent the plaintiffs from protesting.

The defendants’ factual assertion that their acts were needed to “stop[] an unlawful

assembly” and to “clear[] the streets,” Doc. 53 at 16, are more appropriately raised at

summary judgment.13

3. The Fourth Amendment Claim Against the County

Defendants

The County defendants move to dismiss the plaintiffs’ Fourth Amendment claim

pursuant to Rule 12(b)(6). Doc. 53 at 17. Their argument on this issue amounts to a one

sentence “request” that the Court “find that Plaintiffs have failed to state a claim.” Id.

The County defendants’ motion on this issue will be denied. See Landress v. Tier One

Solar, LLC, 243 F. Supp. 3d 633, 639 n.7 (M.D.N.C. 2017) (noting that where a party

fails to develop an issue in its brief, courts have deemed the issue waived and citing Belk,

Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012)).

4. Qualified Immunity

Some of the defendants raise a qualified immunity defense to the claims brought

against them in their individual capacities. Specifically, the City defendants assert

qualified immunity for Lt. Velez, Chief Cole, and Officer Franks, Doc. 46 at 13–17,

13In the complaint, the plaintiffs allege that the defendants’ actions were unreasonable time,

place, or manner restrictions on First Amendment activity, Doc. 25 ¶ 168, and the defendants

discussed that legal standard in their brief. Doc. 53 at 16; see Perry Educ. Assoc. v. Perry Local

Educators’ Assoc., 460 U.S. 37, 45 (1983) (explaining the government’s power to enact speech

restrictions on various categories of government-owned property). The plaintiffs also alleged

that the defendants’ actions were not justified by a compelling or substantial government interest,

Doc. 25 ¶ 168, but in their briefing, they frame the claim more as an incitement of lawlessness

issue by citing the “clear and present danger” standard. See Doc. 62 at 11 (citing Jones v.

Parmley, 465 F.3d 46, 57 (2d Cir. 2006)). As part of the pretrial conference, and certainly before

summary judgment briefing, the parties may want to clear up the nature of this claim and the

appropriate First Amendment standard so that the briefing is more helpful.

while the County defendants claim immunity in a conclusory fashion for seemingly all

defendants. Doc. 53 at 20–21.

Qualified immunity bars § 1983 actions against government officials in their

individual capacities “unless (1) they violated a federal statutory or constitutional right,

and (2) the unlawfulness of their conduct was clearly established at the time.” Barrett v.

Pae Gov’t Servs., 975 F.3d 416, 428–29 (4th Cir. 2020) (citation omitted). Qualified

immunity is, as the City defendants acknowledge, a highly fact-specific inquiry, Doc. 46

at 16, and ordinarily “should be decided at the summary judgment stage.” Willingham v.

Crooke, 412 F.3d 553, 558 (4th Cir. 2005). Dismissal on grounds of qualified immunity

is inappropriate where its resolution “turn[s] on disputed facts.” Raub v. Bowe, 960 F.

Supp. 2d 602, 608 n.8 (E.D. Va. 2013).

As an affirmative defense, the defendants bear the burden of establishing qualified

immunity. Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 305 (4th Cir.

2006). In their briefing, the defendants focus only on the first qualified immunity prong

of whether the named defendants violated a federal statutory or constitutional right;

neither set of defendants contends at this point that the federal rights at issue are not well-

established. See Doc. 46 at 13–17; Doc. 53 at 20–21.14 Because the Court has already

decided not to dismiss any of the federal claims against the defendants in their individual

14 The County defendants do assert that “[p]laintiff has alleged no conduct on the part of the

Defendants which deprived Plaintiff of a constitutional right that was clearly established at the

time of their actions,” Doc. 53 at 21, but they do not identify the constitutional right allegedly at

issue.

capacities for failure to state a claim, see supra, the defendants have not satisfied the first

qualified immunity element. The plaintiffs have plausibly and specifically alleged that

the individual City and County defendants responded to their lawful and peaceful march,

either directly or in a supervisory capacity,15 with excessive physical force and pepper

spray,16 and that this response violated the plaintiffs’ clearly established constitutional

rights. Dismissal on qualified immunity grounds without a more fully developed factual

record would be inappropriate.17

F. Punitive Damages Against the County Defendants

15 Supervisors may be held liable under § 1983 if they “failed or refused to intervene when a

constitutional violation took place in [their] presence . . . .” B.J.G. ex rel. McCray v. St. Charles

Cnty. Sheriff, No. 4:08-cv-1178 CDP, 2010 WL 1838414, at *3 (E.D. Mo. May 6, 2010), aff'd

sub nom. B.J.G. ex rel. McCray v. St. Charles Cnty. Sheriff, 400 F. App'x 127 (8th. Cir. 2010);

see also Armstrong v. City of Greensboro, 190 F. Supp. 3d 450, 464 (M.D.N.C. 2016) (noting

that supervisory liability under Section 1983 lies for affirmatively approving unconstitutional

conduct).

16 See, e.g., Chief Mary Kristine Cole, Doc. 25 at ¶¶ 5, 38–39, 119, 154, 157; Officer

Jonathan Franks, id. at ¶¶ 5, 31, 154; Sheriff Terry Johnson, id. at ¶¶ 27–28, 116, 123, 154, 172,

195–96; Deputy Sheriff Cliff Parker, id. at ¶¶ 29–30, 116, 154, 172 195; Lt. Joaquin Velez, id. at

¶¶ 5, 40–42, 154, 196.

17 Courts in this circuit have previously denied qualified immunity to law enforcement acting

in retaliation to protected First Amendment activity. See Jordan v. Large, No. 7:16-cv-00468,

2018 WL 1158422, *4–5 (W.D. Va. Mar. 5, 2018) (finding allegations that officer used force in

response to protected speech sufficient to state claim for First Amendment retaliation); Raub,

960 F. Supp. 3d at 614 (denying motion to dismiss because officer arrested plaintiff because of

his political views); Lowe v. Spears, No. 3:06-cv-0647, 2007 WL 9718279, at *5 (S.D.W. Va.

May 4, 2007) (denying motion to dismiss where officer retaliated at least in part because of

plaintiff’s protected speech). Courts in this circuit have also previously denied qualified

immunity at the Rule 12 stage in cases where officers were alleged to have used pepper spray on

nonviolent persons. See, e.g., Cooper v. Nichols, No. 1:17-cv-1466 (AJT/TCB), 2019 WL

418856, at *4 (E.D. Va. Feb. 1, 2019) (denying a motion to dismiss based on qualified immunity

by an officer who allegedly used OC spray on peaceful inmate).

The County defendants contend that the plaintiffs have not alleged the degree of

aggravated conduct necessary to warrant punitive damages and that the claim for punitive

damages should be dismissed. Doc. 53 at 21. An award of punitive damages is an

intensely fact-bound determination, and federal courts regularly decline to address the

availability of that remedy in response to a Rule 12 motion. See, e.g., Davis v. G. Allen

Equip. Corp., No. 4:20-CV-49-BO, 2020 WL 4451169, at *2 (E.D.N.C. Aug. 3, 2020)

(holding that a request for punitive damages is not “a separate cause of action” and

therefore “dismissal is not warranted”); Taylor v. Bettis, 976 F. Supp. 2d 721, 747

(E.D.N.C. 2013) (“[I]t is premature to foreclose the possibility of punitive damages at

this time.”); Jones v. Wake Cnty. Hosp. Sys., 786 F. Supp. 538, 547 (E.D.N.C. 1991)

(declining to rule on punitive damages issue on a 12(b)(6) motion). Given the allegations

in the complaint concerning the use of excessive force, physical assault by pepper spray,

and other allegedly unjustified acts to break up a peaceful and otherwise lawful exercise

of First Amendment rights, dismissal of the plaintiffs’ request for punitive damages is

inappropriate. The County defendants’ motion as to this issue will be denied.

VII. Conclusion

The plaintiffs have adequately alleged each of their claims against the City and

County defendants. Both motions will be denied, except as to the redundant §1983

claims against the individual City defendants in their official capacities, which will be

dismissed.

It is ORDERED that:

1. The City defendants’ motion for leave to exceed word limitation, Doc. 47, is

GRANTED.

2. The City defendants’ motion to dismiss, Doc. 45, is GRANTED in part and

the § 1983 claims against Chief Cole, Lt. Velez, and Officer Franks in their

official capacities for violating the plaintiffs’ First and Fourth Amendment

rights, Doc. 25 at §§| 175-82, are DISMISSED. The § 1983 claims against all

other defendants will proceed, and the City defendants’ motion to dismiss is

otherwise DENIED as to the Drumwright complaint. The City’s motion is

HELD IN ABEYANCE to the extent it is directed at the Allen complaint,

Doc. 24.

3. The County defendants’ motion for judgment on the pleadings, Doc. 52, is

DENIED.

This the 2nd day of June, 2021.

lik be Aa

UNITED STATES DIS T JUDGE

25