Even with the pandemic, mass outdoor gatherings in support of various causes have become a common occurrence across Western North Carolina. Dangerous weapons are prohibited at ‘demonstrations.’ But the definition of a ‘demonstration’ is open to interpretation, even among law enforcement.
At the end of August, the Armed Patriots, a group based in Bryson City gathered on Main Street in Sylva.
“It wasn’t really an event. We just went out and expressed our Second Amendment rights.”
That’s Mark Day. He’s one of the organizers of the group. He says they wanted to come to Sylva because the town is “having a hard time right now.”
“We just wanted to go over there and say not all protesters, not all people are bad,” says Day. “You do have rights and we will protect you. You can defend yourselves.”
Day’s referring - in part - to on-going rallies seeking to relocate the Confederate monument known as 'Sylva Sam' on the old Jackson County courthouse steps. Sylva Police Chief Chis Hatton says that his officers watched the event and determined that it was not a protest or demonstration.
“Instead of going out there and standing beside them or what not, we decided to watch the cameras and make sure that they weren't doing anything inappropriate and that no statutes were being violated or anything like that,” says Hatton.
In the last few months, Hatton has gotten very familiar with a North Carolina general statue which states it is forbidden for a participant or spectator to bring a firearm on public land during “a parade, funeral procession, picket line or demonstration.”
BPR spoke to Hatton just after the August gathering. He said the fact that The Armed Patriots are an organized group gave him pause. But after he checked in with the local district attorney’s office, he didn’t consider their gathering a demonstration.
Republican Ashley Hornsby Welch is the district attorney for the westernmost counties in North Carolina, including Jackson where Sylva is.
“I can understand why someone driving down the street and Sylva might be intimidated by this. But we have to go and make our prosecutorial decisions based on the law and the constitution. These individuals have a right under the second amendment to carry firearms and open carry them,” says Welch. “And when you look at the statutes, as they're written, what they have done does not violate the statute.”
If this was not a demonstration, then what is the definition of one? Welch was asked.
“So it's not as simple as saying, okay, here's the definition of a demonstration. And that's the way that it always is because that's not the case,” says Welch. “It's a fluid term. And we've got to look at the facts of each incident to determine if it meets a demonstration underneath the statute.”
Across North Carolina, firearms at protests have been handled differently - in Asheville, three men were arrested for bringing firearms weeks after an event in May. Other cases are currently under litigation.
Reconcile Sylva, the group leading the rallies to move Sylva Sam, has submitted over 100 pages of negative feedback, name calling and threats to the police which they have received since the group started this summer. Kelly Brown of the group, says there is a clear political divide on the legal interpretation of gun rights between Republican and Democrat district attorneys - one that makes him feel unsafe as a Black man.
“The expectation when we vote for a district attorney, is we vote for a district attorney that will uphold the law for all of her community members and she continuously seems to fail at that,” says Brown, referring to Welch.
Brown says when it comes to a question of rights vs. threatening people's lives, he has one question: “At what point are we just turning a blind eye?”
During all four interviews for this story, the recent shooting in Kenosha, Wisconsin came up. Kyle Rittenhouse is charged with killing two people. His presence at that protest for Jacob Blake brought up the question: Do militias have a place in the community and at protests?
Welch, talked about the definition of a "militia" this way: “I think that the term 'militia' sort of implies a group of individuals that have certain intentions. If you narrow it down to a group of individuals that are exercising their Second Amendment rights and otherwise abiding by the law, I think to use the term ‘militia’ with that is not fair. So, um, there's a big difference at the same time. People have a right to assemble. So as long as they're not breaking the law, it doesn't particularly matter if they belong to a ‘militia.’”
This interpretation of a militia was also held by the Bryson City police when the Three Percenter militia attended The Armed Patriots rally in July. Day says the group was there to protect everyone at the event.
Welch makes it clear that it is law enforcement’s responsibility to make the call of whether a crime is being committed on the scene and then it is up to her office to decide if the charge can be prosecuted.
“What individuals need to understand is that first the charging decisions are within the discretion of law enforcement,” says Welch. “Once they determine whether to make charges, then it's within the DA's office purview on whether or not to proceed.”
When it comes to dangerous weapons present at protests, Welch maintains that those are illegal and need to be reported to the police.
“If they do see it, then they need to report it,” says Welch.
Sylva Sam is staying put after Jackson County Commissioners voted last month, though the Confederate flag at the monument’s base will be removed. Reconcile Sylva is still pushing for the statue’s relocation, and continues to gather including an event this Friday.