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Is Felony Murder the Next Chapter in the Anti-Protest Movement?

A demonstrator protesting the shooting death of Michael Brown is arrested by police officers in riot gear Nov. 30, 2014, in St. Louis, Mo.
A demonstrator protesting the shooting death of Michael Brown is arrested by police officers in riot gear Nov. 30, 2014, in St. Louis, Mo.
Photo: Joshua Lott ( Getty Images)

The Rev. Dr. Martin Luther King Jr. once said, “riots are the language of the unheard,” but legislators across the country seem to be rushing to silence those cries.


While protests are commonplace in a healthy democracy, the movement to silence dissent is picking up steam.

Over the past several years, there has been a wave of legislation to criminalize protests in America and abroad. This past December, Sen. Ben Cardin (D-Md.) attempted to sneak an anti-Israel Political Boycott measure into a spending bill. The measure proposed criminalizing Americans for participating in political protests targeting Israel.


In North Dakota, a bill was introduced in 2017 that permitted motorists to hit and kill protesters with no liability if the collision was “accidental.” In Washington state, legislation was introduced to charge demonstrators with economic terrorism if police deem the protester(s) to be disruptive.

My home state of North Carolina even passed an Extraordinary Event law that permits police to stop and search residents based on “extraordinary events,” an exceedingly vague phrase. For instance, in 2016, my client, Braxton Winston, who was attending demonstrations following the fatal police shooting of Keith Lamont Scott, was arrested for having a water bottle and mask—items apparently prohibited by law enforcement. Another client, Gloria Merriweather, who attended the same protest, was charged with inciting a riot for merely being in attendance. The charges against both Winston and Merriweather were eventually dropped.

While Keith Lamont Scott, who was African-American, was killed by an African-American police officer, many of the unarmed African-American police shooting victims are killed by white men and, in some cases, white women. This has led to intense pain, anger and frustration from those citizens who feel that justice has been denied. The response to that has been to silence questions and dissent, even for things as finite as death.

In addition to worrying about growing efforts to criminalize demonstrations, we must also worry about protesters being charged under a felony murder theory. During the recent murder trial for my former client Rayquan Borum, prosecutors charged him with first-degree murder and sought to use the theory of felony murder in convicting him.


Typically, we see the felony murder rule applied when someone is in the process of committing an inherently dangerous felony. For example, if someone breaks into a house and the owner falls down the stairs, breaks their neck and dies. The perpetrator would not only be charged with the breaking and entering, but also with first-degree murder for the death of the owner. Another example is where a person robs a store and someone in the store dies of a heart attack during the robbery. The robber would be charged with first-degree murder and armed robbery if they had a weapon.

In North Carolina, felony murder is punishable by life without parole. In the Borum instance, the underlying felony was rioting at the 2016 protests connected to Scott’s shooting.


One issue is the use of “rioting” as the underlying felony (like robbery or breaking and entering). Say, for instance, you’re at a protest and as you’re leaving, tensions rise and things are inflamed. This event could now be deemed a “riot.” Several legal questions arise: Are all attendees “engaged” in the riot through mere presence? If someone dies, by means other than intentional homicide, are all attendees responsible?


To understand how problematic this classification is, we must first examine the word “riot.” The term is heavily racialized, often used to describe black Americans and working-class Americans who, by their sheer presence or expression of pain, make others uncomfortable. The word “riot” conjures up images of people behaving violently. But anger is not always wrapped in a neat package.

Anyone who dares to express righteous indignation over police brutality, fatal police shootings of unarmed civilians, an inability to obtain health insurance or a political leader who is behaving poorly could be deemed a “rioter.”


It is important to note that societal upheaval is typically a last resort. When communities decide to stage a protest, they typically do so as a means of gaining awareness about a major issue and because other avenues have failed.

In the United States, we have seen protests occur following fatal police shootings of unarmed African Americans. We also saw protests erupt following the election of President Donald Trump when hundreds of thousands of women came together for the 2017 Women’s March, which included a mass action in Washington, D.C., and smaller events in communities across the United States and the world. From the scenarios above, it is typically African Americans who are deemed “rioters.”


Of course, North Carolina is no stranger to mass demonstrations. In April 2013, the Rev. Dr. William J. Barber and the North Carolina State Conference of the NAACP staged multi-week and multi-city Moral Monday protests to challenge what he and his coalition deemed immoral and unjust laws.

If legislators and police are permitted to reach for the rioter label, and then criminalize people accordingly, our democracy is in trouble. Had North Carolina been successful in convicting my client under the felony murder theory, it would have set a precedent that would have reverberated across the country. I fear the growing anti-protest sentiment coupled with deeply entrenched racism will not only invalidate citizens’ First Amendment rights but will also criminalize people who choose to take a stand against injustice. Remember, under the felony murder theory, persons “engaged” in a riot can be charged with felony murder, which carries a sentence of life in prison.


If riots really are the language of the unheard, shouldn’t we be ensuring that all people have an opportunity to be heard? If riots are the cry of those ignored, should the courts really be branding (and punishing) people with felonies for exercising their First Amendment freedom of speech rights?

It appears that the felony murder designation could be the next phase of the anti-protest movement, and advocates and activists would do well to stop, stall or slow this trend.


Darlene Harris is a criminal defense lawyer based in Charlotte, North Carolina.

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In the Service of the Duke of Mantua

Never forget - if prosecutors can use the riot label, it facilitates the escalation of any protest to riot status through the use of agents provocateurs.

Time-honored tactics utilized by Russia in the invasion of Poland in the 1930's. Political rally? Have undercover agents fire shots to provoke an armed response. Simple!