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Going Armed to the Terror of the People while Wearing Facemasks

Why weren’t the dozen or so bozos walking down the street in the middle of Raleigh, and near Oakwood Cemetery, arrested for Going Armed to the Terror of the People? That’s the burning question for today.

While North Carolina is an open-carry state, North Carolina does not permit the the carrying of dangerous or unusual weapons.

North Carolina has a long and tortured history of racial violence that continues to this day. The story of course goes back to the enslavement of human beings during the antebellum period. It continues through the Reconstruction Period from 1865 to 1877 during which black citizens faced racial violence in the first wave of Ku Klux Klan violence. In the 1890s, following electoral alliances in Wilmington, then North Carolina’s largest city where African-Americans enjoyed political power for the first time, illegal white militias engaged in armed insurrection, culminating in the Wilmington massacre of 1898. That massacre was encouraged by powerful white political interests, including Josephus Daniels, the owner and publisher of the Raleigh News and Observer.

The violence continued, and was enforced or aided by the state itself, through much of the twentieth century. Oftentimes the violence was conducted on a small scale – individual campaigns of harassment or terrorism by groups of white men operating as part of the KKK. Sometimes it broke out into public displays, when, as on November 3, 1979, Klan and American Nazi Party members murdered five people protesting for workers’ rights.

North Carolina has laws to combat this racial violence. In the the 1950s, in response to the then latest outbreak of KKK violence, the state passed a set of laws restricting the use of facemasks on public property. N.C.G.S. Sec. 14-12 prohibits the wearing of “any mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, enter, or appear upon or within the public property of any municipality or county of the State, or of the State of North Carolina.”

To the extent that such masks are permitted, or, in fact, required during the Coronavirus/COVID-19 outbreak, N.C.G.S. 14-12 is not applicable, with the obvious interpretation being that the wearing of masks to avoid the virus is not intended to “conceal the identity of the wearer.” It makes sense that the Raleigh Police department does not cite or arrest people for wearing masks at this time.

However, another criminal law, defined at common law in North Carolina, is still valid law. In the course of the past 10 years, I’ve represented probably a half dozen people who have been charged with “Going Armed to the Terror of the People,” a common law crime that dates back to State v. Huntley, an 1843 case. Every single one of my clients who has been arrested for Going Armed to the Terror of the People has been black. And every single one has been accused of possessing a mere handgun, not a longgun.

Citing English law, the Huntley court wrote:

“…[I]t seems certain that in some cases there may be an affray, where there is no actual violence, as where a man arms himself with dangerous and unusual weapons in such a manner as will naturally cause a terror to the people, which is said to have been always an offense at common law and strictly prohibited by many statutes.”

The headnotes to Huntley succinctly state the settled law of North Carolina: “A man may carry a gun for any lawful purpose of business or amusement, but he cannot go about with that or any other dangerous weapon, to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.”

In other words, open carry is legal, with the handgun on your hip and not brandished. But carrying around a dangerous and unusual weapon – a military-styled firearm – that will naturally cause a terror to the people is a crime. Every single one of the people carrying rifles while dressed in camouflage should have been handcuffed and arrested, and brought before a magistrate.

The District Attorney of Wake County recently said that RPD’s reading of first order by Governor Cooper was “technically correct” that protesting was a “non-essential’ activity and therefore arrests could follow for protesters. She said that such arrests would be a “last resort.” Fair enough. I’m not so much of a free speech absolutist to believe that protesters who potentially spread a deadly virus should be exempt from arrest.

But it is certainly true that protesters who gather together and who march down the street armed, causing fear and concern among neighbors, need to be stopped. A warning first is appropriate. Non-compliance should be followed by arrest.

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