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Insurrection in North Carolina

Eric Gavelek Munchel, Pro-Trump Capitol Riot Zip-Tie ...As I write this post, news headlines continue to be dominated by coverage of the violence that occurred at the U.S. Capitol on January 6th. Dozens of people have been charged with crimes so far, and many others are being actively investigated for offenses including curfew violations, property crimes, assault, and possessing unlawful weapons or explosives. Perhaps the most striking allegation, and the one which will serve as the basis for a new article of impeachment against the president, is “insurrection.”

The criminal courts, or Congress in the case of impeachment, will decide whether the defendants are guilty of those offenses. But it made me wonder, particularly in light of new warnings about similar events occurring at state capitols in the days ahead, what does our law say about insurrection in North Carolina?

Vocabulary Primer:

Although the words tend to be used almost interchangeably in some contexts, there is a difference between insurrection and other terms like sedition, treason, or coup. Merriam-Webster defines sedition as “incitement of resistance to or insurrection against lawful authority.” Insurrection is “an act or instance of revolting against civil authority or an established government,” while treason is “the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance.” Finally, a coup (specifically a coup d’etat) is “the violent overthrow or alteration of an existing government by a small group.”

So putting them in a rough order:  sedition could lead to insurrection, which may rise to the level of being treason, and if successful will result in a coup.

North Carolina Offenses:

Several prior posts on this blog (see here, here, and here) have addressed the wide variety of criminal offenses that can occur during an incident like the one at the Capitol, just as they could at any other time:  trespassing, disorderly conduct, assault, injury to property, weapon offenses, riot, etc. But if the conduct falls within the scope of the terms defined above, there are several additional offenses that might apply.

1. Insurrection Against the State:

Inciting, aiding, or engaging in acts of insurrection or rebellion against the state is prohibited by G.S. 14-8, which makes the conduct a Class F felony:

If any person shall incite, set on foot, assist or engage in a rebellion or insurrection against the authority of the State of North Carolina or the laws thereof, or shall give aid or comfort thereto, every person so offending in any of the ways aforesaid shall be guilty of a felony, and shall be punished as a Class F felon.

G.S. 14-8. I have not found any modern case law interpreting this statute in situations like the one that occurred last week, but historical cases have defined insurrection in terms that seem fairly consistent with the definitions given earlier:  “a seditious rising against the government, (as in the case of Governor Dorr in Rhode Island); a rebellion; a revolt;” acts involving “usurped civil power” or “military power [other than] that recognized by the constitution.” Spruill v. North Carolina Mut. Life Ins. Co., 46 N.C. 126 (1853).

Unlike the other offenses discussed below, this statute only addresses insurrection against “the authority of the State of North Carolina or the laws thereof.” G.S. 14-8. Could insurrection against the federal government constitute an offense under this statute? That question raises a host of potential issues regarding venue, jurisdiction, and elements, and I’m not necessarily advocating for this interpretation, but an argument might be made that any uprising against the national government is, broadly speaking, made against the states as well:

Our government is a dual system; a wheel within a wheel; a union of indivisible states; a family of states. The Constitution of the United States is the golden cord that binds the states together-“United we stand, divided we fall.” This is the conception of our government. Any attack upon the government of the United States by insurrection or invasion, in its broad sense, is also an attack on each and every state government in the Union. […] To put down insurrection or invasion is a public benefit to every state as well as the Union.

Hinton v. Lacy, 193 N.C. 496 (1927) (addressing state veterans’ eligibility for a federal loan program).

2. Advocating Overthrow of the Government:

The preceding statute addresses both overt acts of insurrection and inciting others to engage in such acts, but we have another statute that directly covers the type of conduct more commonly described as sedition:

It shall be unlawful for any person, by word of mouth or writing, willfully and deliberately to advocate, advise or teach a doctrine that the government of the United States, the State of North Carolina or any political subdivision thereof shall be overthrown or overturned by force or violence or by any other unlawful means.

G.S. 14-11. The statute also makes it unlawful for any person to use a public building owned by the state or any department or agency supported by state funds “for the purpose of advocating, advising or teaching a doctrine that the government of the United States, the State of North Carolina or any political subdivision thereof should be overthrown by force, violence or any other unlawful means.” Id. Pursuant to G.S. 14-12, a first offense under this statute is a Class 1 misdemeanor, and a second offense is a Class H felony. Id.

3. Subversive Activities:

A recurring theme in the news coverage surrounding last week’s events is the role that social media apparently played in inciting and organizing the violence. Assuming those allegations are true, similar posts or conduct would likely constitute an offense under North Carolina law as well:

It shall be unlawful for any person to […] Print, publish, edit, issue or knowingly circulate, sell, distribute or publicly display any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that the government of the United States or a political subdivision of the United States should be overthrown by force, violence or any unlawful means[.]

G.S. 14-12.1(2). Notably, this provision applies to advocating the overthrow of either the United States government itself or a “political subdivision” of it, expanding its applicability for state charges. Other portions of this statute make it a crime to advocate, advise or teach such a doctrine either “by word of mouth or writing” (similar to G.S. 14-11 above) or by organizing, becoming a member, or voluntarily assembling with “any society, group or assembly of persons formed to teach or advocate the doctrine.” G.S. 14-12.1(1), (3). A violation of any prong of this statute is punished as a Class H felony. G.S. 14-12.1. The remainder of the statute makes any gathering of two or more persons for the purpose of advocating or teaching the doctrine that the government should be overthrown an “unlawful assembly,” punishable as a Class H felony. Id. The statute also addresses the liability of editors or publishers for permitting this type of content in their publications, subject to some exceptions, and further provides that any state employee who engages in conduct prohibited under the statute “shall be forthwith discharged.” Id.

4. Terrorism:

Terrorism under G.S. 14-10.1 is a relatively new offense that was added in 2012 and amended in 2015. This statute makes the commission of specified “acts of violence” (murder, manslaughter, felony assault, and offenses involving explosives, incendiary devices, and some weapons of mass destruction) a separate and higher crime, if the acts were done for the purpose influencing the government through intimidation or intimidating the population:

A person is guilty of the separate offense of terrorism if the person commits an act of violence with the intent to do either of the following:
(1)  Intimidate the civilian population at large, or an identifiable group of the civilian population.
(2) Influence, through intimidation, the conduct or activities of the government of the United States, a state, or any unit of local government.

G.S. 14-10.1(b). The offense is punished as a felony one class higher than the underlying act of violence would be (capped at a B1 felony), and all real or personal property “of every kind used or intended for use in the course of, derived from, or realized through an offense punishable pursuant to this Article shall be subject to lawful seizure and forfeiture to the State.” G.S. 14-10.1(c), (d).

5. Secret Political and Military Organizations:

As the heading suggests, G.S. 14-10 criminalizes the formation of or participation in any “oath-bound secret political or military organization” that engages in certain prohibited practices like meeting in secret, wearing disguises, and using special handshakes or passwords. A violation of the statute is a Class 1 misdemeanor. G.S. 14-10.

Like the prohibitions against “secret societies and activities” found in G.S. 14-12.2 through 12.15, this statute is probably a more natural fit for addressing threatening conduct and civil disorder caused by established organizations such as white supremacist groups or militias. See Person v. Miller, 854 F.2d 656 (4th Cir. 1988) (affirming order that prohibited paramilitary activities of a KKK chapter pursuant to G.S. 14-10 and 14-288.20). It seems unlikely that a loose organization of people exchanging messages online would have the secret handshakes and shared oaths that the statute envisions. Nevertheless, G.S. 14-10 could apply in some situations, since it addresses any person who joins a prohibited organization for the purpose of “furthering any political object, or aiding the success of any political party or organization, or resisting the laws” or if they “band together and assemble to muster, drill or practice any military evolutions except by virtue of the authority of an officer recognized by law.” G.S. 14-10. Similar liability is imposed on persons who permit such activities on their property. Id.

Final Thoughts:

These offenses are rarely charged and relevant modern case law is virtually nonexistent, so a number of important questions about intent, definitions, essential elements, and freedom of speech have yet to be fully addressed by our state courts. Until we have those cases, federal decisions interpreting similar statutes offer some guidance. E.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”); Dennis v. United States, 341 U.S. 494 (1951) (holding that federal anti-insurrection statute is constitutionally applied “where there is a ‘clear and present danger’ of the substantive evil which the legislature had the right to prevent”). State cases on other offenses such as inciting a riot could also be useful. E.g., State v. Brooks, 287 N.C. 392 (1975) (where the “threat of immediate violence which poses a clear and present danger to persons or property is present” the “advocacy of imminent lawless action is not protected by the First Amendment”).

Officers, magistrates, and prosecutors may understandably prefer to continue relying on more established and well-known criminal charges based on the underlying conduct, rather than pulling one of these untested statutes off the shelf. This post is just a reminder that if the need arises, the statutes are there.

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