Is protecting the public from white supremacists with a semi-automatic rifle illegal?
A man arrested for bringing a semi-automatic rifle to a KKK counterprotest last summer had his case dismissed Thursday when a judge ruled the charge was unconstitutional.
Dwayne Dixon faced the misdemeanor after he brought the rifle to downtown Durham Aug. 18 amid rumors of a white supremacist rally that never materialized.
District Court Judge James T. Hill dismissed the charge after Dixon’s attorney, Scott Holmes, argued the law was overly broad and infringed upon the the First and Second Amendments rights to assemble and to bear arms.
“It is just unconstitutional on its face, and the state can’t use it to prosecute my client,” Holmes said in court.
Before the dismissal, the state presented one witness, Sheriff’s Office Lt. John Pinner, who described seeing a gathering and Dixon near the corner of Main and Corcoran streets.
After the testimony, Holmes moved to have the case dismissed on a technicality. Holmes, an N.C. Central University law professor and supervising attorney of the school’s Civil Litigation Clinic, argued that the incident took place on a city street not a state street, which the law specifies.
Hill agreed with Assistant District Attorney Ameshia Cooper, who successfully argued the city street still fell under the state’s jurisdiction.
Holmes then argued that the case should be dismissed on constitutional grounds.
“Motion granted,” Hill said later.
Dixon, 45, was initially charged with going armed to the terror of the people and bringing a weapon to a downtown demonstration. Cooper said Thursday morning that the state was only moving forward with the latter charge.
The misdemeanor stems from a 1981 law that prohibits weapons at parades, funeral processions, picket lines or demonstrations at any public place. The law doesn’t apply to people with a valid concealed carry permit and a handgun at parades or funerals.
“It shall be presumed that any rifle or gun carried on a rack in a pickup truck at a holiday parade or in a funeral procession does not violate the terms of this act,” the law states.
Court data indicates the offense was charged rarely, if ever, in 2016, and the statute has never been cited in an appellate court opinion.
Holmes looked for places the charge has been prosecuted, he said, and he couldn’t find any.
The statute infringes on the right to assemble and the right to bear arms, Holmes said. Laws that burden constitutional rights need to be very specific, he said. It needs to be clear when people are violating the law, and how far their rights go.
The state statute doesn’t define terms like demonstration and is overly broad in saying it’s unlawful for people “participating in, affiliated with, or present as a spectator,” at a demonstration to have access to a weapon, Holmes said.
The law also contradicts itself by allowing rifles and guns on a pickup truck at holiday parades and funerals, Holmes argued.
An arrest warrant said Dixon assisted in organizing and blocking public roadways “while armed with a semi-automatic weapon rifle capable of firing multiple shots within seconds, which upon observance by members of the public caused alarm and concerns for safety.”
Two others were charged with the misdemeanor weapons charges after the Aug. 18 demonstration. Christopher Brazil agreed to a deal that includes deferred prosecution and community service. After Dixon’s short trial, the charges against Elijah Prior were dismissed.
A third person, Gregory Williams, was charged with wearing a mask at the Aug. 18 event. His charge was also dismissed.
Hill’s ruling that the law is unconstitutional doesn’t strike it down.
“It should caution prosecutors and police in the future who want to use that statute because a judge has ruled it unconstitutional,” Holmes said. “It has no immediate affect on that law; it stays on the books. But it should provoke a discussion among civil-rights laws, judges, and prosecutors and the legislature to take another look at it.”
Dixon, a UNC-Chapel Hill anthropology lecturer who has a doctorate in cultural anthropology from Duke University, disagreed he was at a demonstration. He went downtown after getting text messages that white supremacists were coming and learning that county offices had closed, he said in an interview in August.
“The frequency and the volume together told me that a range of people in different walks of life and professions were getting information that was causing alarm,” Dixon said.
When Dixon arrived, he saw deputies blocking East Main Street in front of the old courthouse, he said, and two deputies escorting someone to a parking lot.
“It tells me there is some serious danger in so far as armed personnel from the county are being dispatched to protect this county worker,” Dixon said. “But it tells me that everyone else is wide open.”
Less than a week before, Dixon had been in Charlottesville, Virginia, as a member of the Redneck Revolt, a leftist organization that promotes community self-defense in the struggle against racism.
Dixon was among roughly 20 members, some armed, that protected counterprotesters when white supremacists and nationalists marched against the removal of a statue of Confederate Gen. Robert E. Lee in a local park.
Two days after Charlottesville, demonstrators used a strap to pull down a Confederate memorial in front of the Durham County administrative building on Main Street. Eight people face misdemeanor charges for toppling of the Confederate monument in downtown Durham no longer face felony charges. Their next court date is Feb. 19.
After the trial Thursday, Dixon said he is a “committed, dedicated revolutionary.”
“What we are seeing right now is what solidarity looks like, and what continues to be amassed around this courthouse, like the Israelites around Jericho blowing our horns repeatedly without end,” Dixon said. “Unwilling to relinquish this moment or any moment when our freedom is jeopardized.”
Virginia Bridges: 919-829-8924, @virginiabridges