Lawsuit challenging protesters’ arrest argued in Georgia Supreme Court

Credit: Steve Schaefer/AJC

Credit: Steve Schaefer/AJC

The Georgia Supreme Court will decide whether state police officers violated the constitutional rights of U.S. Rep. Nikema Williams and others who were arrested in the state Capitol in the days after the 2018 election.

Justices heard the lawsuit Thursday.

The lawsuit was filed against Georgia Department of Public Safety officers in federal district court in 2020, but a judge referred the case to the Georgia Supreme Court, asking the justices to determine whether a law that bans disruptions during the legislative session violates the state’s constitution.

Justices said they were unsure the case would prevail in federal court because the 11th Amendment to the U.S. Constitution limits the ability of federal courts to hear suits against states. Attorneys for the state cited the amendment when asking the court to dismiss the case.

“Why should we go ahead and decide a constitutional issue ... when there’s a very good chance our answers to it will never matter because the (federal) district court eventually is going to decide the issue?” Chief Justice David Nahmias asked Zack Greenamyre, Williams’ attorney.

Greenamyre argued that the 11th Amendment doesn’t have to stop the Supreme Court from ruling on the constitutionality of the state law.

Williams, who was a state senator at the time, and 14 others were arrested as they were gathered in the Georgia Capitol’s rotunda in November 2018 to urge officials to tally all absentee and provisional ballots before certifying Brian Kemp as the winner of the governor’s race, beating Stacey Abrams. Kemp, who resisted calls to resign his position as Georgia’s top elections official during the contest, had been accused by Abrams of using “voter suppression” tactics to win, which he denied.

Credit: Bob Andres

Credit: Bob Andres

The original lawsuit asks a federal judge to bar further use of the law. A judge put the ruling on hold while the state Supreme Court determines the state law’s constitutionality.

The law in question says it is illegal to “recklessly or knowingly commit any act which may reasonably be expected to prevent or disrupt a session or meeting of the Senate or House of Representatives.”

The plaintiffs say the law is overly broad and violates the First Amendment because it doesn’t require proof of intent to disrupt or proof that the legislative session was actually disrupted.

In 2006, the Georgia Supreme Court ruled that a similar law, intended to bar disruption of public meetings, was unconstitutionally vague, siding with two people who were arrested during a Valdosta City Council meeting.

When discussing the state law, justices questioned why Williams and others were arrested for making noise during the legislative session when other gatherings in the Capitol, such as a press conference using amplified speakers or music performances, don’t get the same reaction from state police.

“The state has a strong, compelling interest in ensuring that the people’s business is carried on unimpeded by interruptions and that there’s a minimum (level) of decorum,” said Georgia Deputy Solicitor Ross W. Bergethon, who is representing the state.

Justice Nels S.D. Peterson said he could understand if the disruption was in a legislative chamber or committee room, but he wasn’t sure that loud noises coming from the Capitol rotunda qualified as disturbing a session.

“But protests just somewhere in the Capitol building is the kind of thing that is so disruptive, that it warrants limited speech under the state’s interest?” Peterson said.

The 2018 protest was organized by a local Black Lives Matter group and drew about 100 people. Authorities said the arrests were made after attendees ignored orders to disperse.

Charges against all protesters were dropped in 2019.