A North Carolina Professor Gave Up His Free Speech Rights To Resolve a Case Involving a Controversial Sheriff

On May 20, 2017, Rann Bar-On, a mathematics professor at Duke University in Durham, North Carolina, joined a group of counter-protesters in nearby Graham to oppose a “Confederate Memorial Day Celebration,” held on the steps of the historic Alamance County courthouse.

The event, which drew roughly 100 supporters, was planned by Alamance County Taking Back Alamance County—an organization that the Southern Poverty Law Center once labeled a neo-Confederate hate group. 

Prior to the start of the event, Bar-On climbed the courthouse steps where organizers had raised flags bearing Confederate and Dominionist symbols, he said. 

“I went in and detached the zip ties that connected the poles to the courthouse steps,” Bar-On recalled. “I picked up a flagpole and began to remove a Confederate flag from it. … And at that point I heard, ‘That’s enough now!’”

Sheriff Terry Johnson then attempted to wrestle the flagpole from Bar-On’s grip, according to news reports. Amid the scuffle, Johnson alleged, Bar-On swung the pole and struck the sheriff in the shin, breaking the skin and leaving a bruise. Bar-On maintains he did not swing the pole at Johnson. A deputy arrested and booked Bar-On into the county jail.

The Alamance County district attorney’s office charged Bar-On with misdemeanor injury to personal property and felony assault on a law enforcement officer. He was released on bail on the day of the incident and pleaded not guilty in court two days later.

Last fall, just before the case was set to go to trial, the DA’s office approached Bar-On’s attorney with an offer: If he pleaded guilty to misdemeanor assault on a law enforcement officer—a downgraded offense—he would receive 15 days in jail, pay a fine, and serve two years on supervised probation. But during the probation, Bar-On would also be prohibited from attending or participating in protests or rallies in Alamance County.

A felony conviction for Bar-On, who is from Israel, would have jeopardized his status as a noncitizen legal resident, and thus his job and livelihood. ICE could have grounds to detain him for deportation, Bar-On said.

“A felony conviction for an American citizen is bad, but it’s not life-ending,” Bar-On told The Appeal. “But for an immigrant, it could upend your life.”

He officially took the deal on Nov. 4. Presiding Judge Andrew Hanford agreed to delay Bar-On’s incarceration until he finished teaching his Duke courses for the fall semester, according to Bar-On. On Dec. 18, Bar-On returned to Alamance County for the 15-day jail sentence, which stretched over the Christmas and New Year holidays.

In an email to The Appeal, Johnson wrote that Bar-On “did not have to enter a plea to this deal and, believe me, it was a deal.”

Pat Nadolski, who was Alamance County DA when Bar-On was indicted, told The Appeal he left the office before the plea deal was negotiated. Sean Boone, the current DA whose office brokered the deal, did not respond to requests for comment.

The probation condition prohibiting Bar-On from protests and rallies in Alamance County for two years is unusual—and it appears to restrict his First Amendment rights to free speech and to peaceably assemble. 

“I think it’s suspicious that they would insist on that as part of the probation,” said Scott Holmes, Bar-On’s attorney. “It’s kind of instinctually problematic because they shouldn’t have a problem with the lawful exercise of your First Amendment rights,” he said.

Imposing such a condition is rare but not illegal under a plea bargain, said Charlotte-based criminal defense attorney Mark Simmons.

“I understand that this case had some unique facts but, if the state were to regularly make plea offers prohibiting the right to protest, we’d be entering a scary time,” he said.

Jillian Johnson, Durham’s mayor pro tempore, was among more than a dozen colleagues and elected officials who submitted letters of support before Bar-On’s November hearing.

“The fact that a sheriff, who is a known racist, spent the amount of public resources that he did pursuing these completely ludicrous, excessive charges against an anti-racist activist I think is a strong cautionary tale,” said Johnson. “In places like North Carolina, we are still, in a lot of ways, back in the pre-Civil War era with regards to the power and the attitudes that local sheriffs have.”

In 2012, the Department of Justice’s Civil Rights Division under the Obama administration sued Johnson’s office, after an investigation concluded that the sheriff and his deputies had engaged in a “pattern or practice of discriminatory policing against Latinos.”

“Sheriff Johnson has directed his supervisory officers to tell their subordinates, ‘If you see a Mexican, don’t write a citation, arrest him,’” the Justice Department’s report states. Johnson also allegedly blamed Latinx people, who were 11 percent of the county population in 2010, for the local illegal drug trade, and referred to them as “taco eaters” in conversations with staff. Johnson’s deputies were between four and 10 times more likely to stop Latinx drivers than non-Latinx drivers, according to the report.

The department agreed to settle its lawsuit in 2016, after Johnson promised to institute reforms like a bias-free policing policy. 

In 2012, the Obama administration canceled its contract with Alamance County under ICE’s  287(g) program—which allows state and local law enforcement agencies to act as immigration enforcement agents—after it discovered that the sheriff had justified holding immigrants in the county jail for immigration status checks on the false pretense that ICE had ordered arrestees detained. In 2017, former Attorney General Jeff Sessions invited Alamance County back into the 287(g) program, but Johnson decided against doing so, amid protests from immigrant rights groups in North Carolina.

Nadolski, the former Alamance County DA, drew criticism in 2018 from the area’s Black civil rights advocates after he prosecuted a dozen, mostly Black formerly incarcerated residents who voted in the 2016 presidential election. They were barred from casting ballots until they completed their terms of parole or probation. Nadolski has denied the cases were motivated by race.

In a 2018 interview with Mic, Johnson, when asked whether he is biased against Latinx people, declared, “Terry Johnson ain’t got a racist bone in his body!” Johnson and Nadolski were pictured together on a campaign billboard, when the two sought re-election in 2018, raising a concern about impartial justice for Bar-On, his attorney said.

“There’s a law enforcement bias, in general,” Holmes, the attorney, told The Appeal, “but in particular in Graham, for protecting those kinds of [pro-Confederate] demonstrators and a prejudice against anti-racism.”

Bar-On, whose wife gave birth to their child after his arrest, told The Appeal he was grateful to have resolved the case, despite the ban from protesting.

“This is the first time since my kid was born that we don’t have this potential incarceration and even more severe consequences hanging over our head,” he said.