County uses stay-home order to ban protest of police shooting

Authorities in a Maryland County have been withholding evidence – warrants, body-cam video and the like – of an incident in which police stormed into a young man's home early one morning and shot him dead. Officers were acting on an anonymous tip that Duncan Lemp, 21, was in possession of illegal firearms. Arguing no…

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Authorities in a Maryland County have been withholding evidence – warrants, body-cam video and the like – of an incident in which police stormed into a young man's home early one morning and shot him dead.

Officers were acting on an anonymous tip that Duncan Lemp, 21, was in possession of illegal firearms.

Arguing no information has been released, the family planned a public protest of the actions by police. And now the county is threatening the family with fines of up to $5,000 if they carry out a demonstration, citing Maryland Gov. Larry Hogan's stay-at-home orders.

"Surveillance and retaliation—the tactics of police states—have no place in a society that protects the right to speak out against the government in the pursuit of justice," said constitutional attorney John W. Whitehead, president of the Rutherford Institute. "While the country is dealing with a public health emergency, martial law has not been explicitly declared and the fundamental rights guaranteed by the Constitution have not been suspended. As such, citizens remain free to exercise those rights, including the rights of assembly and speech."

Rutherford is warning county managers and law enforcement "not to weaponize the COVID-19 health crisis in order to justify carrying out surveillance on and retaliating against persons who exercise their First Amendment rights to publicly protest government misconduct in a manner consistent with 'social distancing' guidelines."

It was at 4:30 a.m. on March 12 when a Montgomery County SWAT team executed a no-knock warrant on Lemp's residence. The warrant authorized law enforcement officers to seize firearms allegedly possessed by Lemp.

Police then stormed his residence and shot and killed him.

County officials asserted in a statement that police announced themselves and fired their weapons after Lemp confronted them.

Lemp's girlfriend, who was with him at the time, contended police did not announce themselves and that Lemp was shot while lying in bed.

The inconsistencies prompted the family to demand that authorities release their evidence. They have refused.

So family members planned a public demonstration, and county officials responded with the threat of fines or up to a year in jail .

Rutherford attorneys argued that engaging in First Amendment activities in compliance with "social distancing" guidelines poses no greater risk to public health than other activities allowed under Hogan's orders limiting gatherings.

The attorneys contend that the preemptive efforts by county to shut down the protest imposes an unwarranted chill on the exercise of First Amendment rights.

The institute wrote to the county: "As the U.S. Supreme Court has ruled, 'The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs.' Public parks and streets 'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."

The stay-at-home order "should not be construed to criminalize the fundamental rights of assembly and speech," the letter said.

"So long as protesters abide by the social distancing guidelines, they should be considered to fall within the outdoor activities exception" in the governor's order, Rutherford said.

"To preemptively accuse demonstrators of violating the order without knowing if they will maintain social distancing is an abuse of authority imposing an unwarranted chill on the exercise of First Amendment rights."

Rutherford insisted the "retaliation" against the family is illegal.

"You would do well to remember that citizens remain free to exercise those rights, including the rights of assembly and speech, including in times of upheaval," the attorneys wrote.

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