It Shouldn’t Take Lawyers To Make NC City Back Off Drive-In Church Service Ban

It Shouldn’t Take Lawyers To Make NC City Back Off Drive-In Church Service Ban

If our constitutional protections go out the door at the declaration of every emergency, what is the point of having them?
Brandon Pettijohn
By

The government’s over-restrictive policies in response to COVID-19 shine a light on the unbridled power it has to violate citizens’ constitutional rights under the guise of a state of emergency. Here in the city of Wilmington, North Carolina, the Wilmington Police Department’s statement issued on April 8 declaring “drive-in church services” illegal.

This effectively violated every Wilmington resident’s First and Fourth Amendment rights. Mayor Bill Saffo, who is ultimately responsible for his police department’s actions, has shown a glimpse into the tyrannical power government wields when left unchecked by its citizens.

Our Founding Fathers made adequate assurances that American citizens would be free from the tyranny they faced at the hands of British overlords. When contemplating the foundation of our nation, our forefathers made a top priority to include in the first ten amendments to the U.S. Constitution the Bill of Rights. These first ten amendments outline the enumerated rights each citizen retains and the limits of power the government holds over those rights.

The First Amendment to the U.S. Constitution ensures that the government will make no law prohibiting the free exercise of religion or the right to peaceably assemble. The First Amendment originally only applied to the federal government but the Fourteenth Amendment later applied it to state and local government.

Although restricting the right to assemble might be deemed necessary under the circumstances of COVID-19 pandemic, local bans despite parishioners remaining in their vehicles and maintaining social distancing shows the power governments have to make such erroneous interpretations, in direct contradiction to the U.S. Constitution and governors’ executive orders. Effectively, Saffo’s proscription against the freedom to exercise religion safely from the inside of one’s motor vehicle or in the open air directly violated our constitutional rights and the laws of North Carolina.

To further confound the molestation of our God-given constitutional rights, Saffo’s policy would have been enforced by unreasonable government seizures carried out by the hands of our local police. The U.S. Supreme Court held in Brendlin v. California, 551 U.S. 249 (2007) that stopping a car is, in fact, a seizure for Fourth Amendment purposes and that, generally, police officers may not make such seizure unless they can articulate at least reasonable suspicion to believe a law has been violated.

Wilmington Police Department announced they would be stopping vehicles based on no such articulable facts. Not only did the department’s interpretation of the executive order contradict the guidance given by Gov. Roy Cooper, it violated citizens’ civil rights under the First Amendment, by specifically targeting their free exercise of religion.

On April 9, 2020, my law partners and I decided we needed to do something about this. We agreed the police department’s interpretation of the executive order was a gross injustice, unconstitutional, and trampled on the rights of the citizens in our city. Later that day we issued a press release outlining the argument I gave above and received mixed feedback, as one would expect.

Our argument was that Cooper’s office had specifically outlined in a letter to the North Carolina Sherriff’s Association that his stay-at-home order did not affect religious activities such as “drive-in church services” on Easter weekend. The mayor and police department in Wilmington went too far in their deliberate misinterpretation of the executive order and directly threatened the core of what makes us all Americans.

Later that evening we were notified that Wilmington Police had issued a statement walking back their stance on enforcing the ban. What does this mean?

I do respect the seriousness of COVID-19 and the burden it has placed on local, state, and federal leaders as they try to navigate these uncharted waters. Doctors, nurses, first responders, and other health-care professionals are seeing the worst the virus has to offer, and for some it seems like there is no end in sight.

However, if our constitutional protections go out the door at the declaration of every emergency, what is the point of having them? Americans should not have to need lawyers to have basic rights upheld, even in times of emergency.

Government should encourage voluntary compliance with the measures of social distancing, self-quarantine, and closing businesses, but ordering businesses to close their doors and parents to educate their kids from a kitchen table, forcing Wilmington residents to stand in line at the food bank and unemployment office, and not allowing citizens to safely worship during Holy Week is evidence of government gone too far.

Three times in my life I swore to support and defend Constitution: when I joined the U.S. Marine Corps, when I reenlisted into a reserve component, and when I was sworn into the state and federal bars of North Carolina. Each time I took that oath, I did so knowing full well the responsibility that comes with it.

Each of us should hold seriously the values that make us American. Standing by while those values are thrown to the wayside is something no citizen should be forced to witness. We must now stand up for our rights and not allow the government to exact its will upon us without any questions, pushback, or arguments.

I think of our founding fathers at this time and, in particular, of the words of Benjamin Franklin: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Brandon Pettijohn is an attorney with Coastal Legal Counsel located in Wilmington, North Carolina, and a veteran of the U.S. Marine Corps and the War in Afghanistan.
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