Bernstein v. Sims, Response To Motion For Preliminary Injuction

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
5:22-CV-277-BO-KS
LYNN BERNSTEIN )
)
Plaintiff, )
)
v. )
)
GARY SIMS, individually and in his official )
capacity as Director of Elections for the Wake )
County Board of Elections; and WAKE COUNTY )
BOARD OF ELECTIONS )
)
Defendants. )
DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION
NOW COME the defendants, GARY SIMS, individually and in his official
capacity as Director of Elections for the Wake County Board of Elections, and WAKE
COUNTY BOARD OF ELECTIONS by and through counsel, and pursuant to Local Rule
7.1(f) hereby submit this Response to Plaintiff’s Motion for Preliminary Injunction [DE
13], and in opposition to plaintiff’s Motion for Preliminary Injunction as to Counts I
through III of her complaint, defendants show unto the Court the following:
STANDARD OF LEGAL REVIEW
The purpose of a preliminary injunction is merely to preserve the relative positions
of the parties until a trial on the merits can be held. United States v. South Carolina, 720
F.3d 518, 524 (4th Cir. 2013). A preliminary injunction is an “extraordinary remed[y]
involving the exercise of very far-reaching power to be granted only sparingly and in
limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir.
Case 5:22-cv-00277-BO-KS Document 20 Filed 10/04/22 Page 1 of 17

2001). “[M]andatory preliminary injunctions—those that alter rather than preserve the
status quo—are disfavored,” and should only be granted where “the applicants' right to
relief [is] indisputably clear.” Mtn. Valley Pipeline, LLC v. 6.56 Acres of Land, 915 F.3d
197, 216 n.8 (4th Cir. 2019).
In determining whether to issue a preliminary injunction, the Court must follow the
test set forth by the Supreme Court in Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), which requires a showing that: (1) the movant
is likely to succeed on the merits; (2) the movant is likely to suffer irreparable harm absent
preliminary relief; (3) the balance of equities favors the movant; and (4) an injunction is in
the public interest. 555 U.S. at 20, 129 S.Ct. 365; accord Roe v. Dep't of Def., 947 F.3d
207, 219 (4th Cir. 2020); League of Women Voters of N.C. v. N.C., 769 F.3d 224, 236 (4th
Cir. 2014).
STATEMENT OF THE FACTS
Facts from the plaintiff’s complaint relative to this Motion for Preliminary
Injunction and Response in Opposition to the same are as follows: Plaintiff alleges that she
is a “longtime advocate for elections that are transparent, trackable, robustly audited, and
publicly verified.” (Compl. p 9, ¶ 30). Plaintiff further alleges that she has “championed”
efforts and advocacy for election transparency and that she is “not compensated for her
work; instead, her election integrity work is done on a voluntary basis and motivated by
her civic-mindedness.” (Compl. p 10, ¶ 35). Plaintiff alleges that defendants are trying to
prevent the public from observing vote counts, and as a result she decided she would
engage in a “small, peaceful protest on May 17, 2022 at 7:30 pm” to bring attention to the
defendants’ lack of transparency. (Compl. p 16, ¶ 46). In order to determine where this
2
“protest could be safely and legally undertaking, she drove to the Wake County Board of
Elections Operations Center on the afternoon of [Saturday] May 14, 2022” accompanied
by a fellow election integrity advocate John Brakey (hereinafter “Brakey”). (Id.) Upon
arrival she saw a yellow sign that read “Board of Elections Event” that she assumed was
not a leftover sign from early voting but indicated an active Wake County Board of
Elections (“WCBOE”) event which she assumed would be open to the public. (Compl. p
17, ¶ 47). Though she assumed that this was an open event, she took pains to park “offsite
in a parking lot not belonging to the Board of Elections after originally trying to park across
the street from the Board’s property.” (Compl. p 17, ¶ 48).
Plaintiff admits that at 4:51 PM she and Brakey walked up the driveway toward the
Board of Elections event and that Brakey entered 4 or 5 steps inside an open gate. (Compl.
p 18, ¶ 51). The gate began to close, and her friend attempted to exit the gate which tripped
the gate safety sensor and the gate retracted. Plaintiff alleges that even though the gate
began to close and retract after Brakey exited the gate, he and the plaintiff were still in the
vicinity of the gate’s sensor. (Id.). Inexplicably, plaintiff alleges that she assumed the sign
“Board of Elections Event” indicated an active WCBOE event which she assumed would
be open to the public but when she came on to the property at some point the property gate
was closing. It makes little sense that a gate would be closing during a “public event.”
Special Police Officer Janice Carter noted in the “Daily Officers Report” that the plaintiff’s
vehicle was suspicious because “The vehicle remained in that location for a short period of
time, approximately 15 minutes. It was suspicious because all of the employees at that
location have already left for the day and this vehicle [plaintiff’s vehicle] remained.”
(Response Exhibit 2, attached exhibit B entitled “Daily Officers Report”).
3
Soon after while she was standing next to her vehicle, an officer from the Raleigh
Police Department arrived and “began speaking with a sheriff’s deputy who also works for
the Board of Elections at public board meetings and events” at which time the sheriff’s
deputy then “incorrectly stated that Ms. Bernstein and Mr. Brakey had ‘attempted to get in
by tampering with the gate,’ which [the sheriff’s deputy] said was closed.” (Compl. p 19,
¶ 53).
As a result of these events, plaintiff was told that she was being “trespassed” and
the officers completed paperwork to document the “trespassing”. (Compl. p 19, ¶ 54). A
true, accurate and authentic copy of the original Trespass notice is attached hereto and
labeled Response Exhibit 1. In her complaint and Motion for Preliminary Injunction,
plaintiff makes the incredible allegation that “[t]hough not entirely clear from the written
trespass paperwork she was shown, it is Ms. Bernstein’s fear that the ban on ‘trespassing’
applies to any Wake County BOE property, even if that property is accessed only for
purposes of voting and even if that property is only temporarily under the Board’s control
as a polling place.” [DE 13, p. 2, ¶ 4]. Incredibly, plaintiff alleges that she is “deprived of
the opportunity to observe and speak at BOE meetings and many other civic and
educational events hosted by the Board, but she also cannot file in person to run for office,
take poll worker training, works as a poll worker, be a political election observer, return
voter registration forms following registration drives, or even serve as a poll greeter.” [DE
13, p. 2, ¶ 5]. Plaintiff’s allegations are totally inconsistent with the actual trespass.
4
ARGUMENT
I. Plaintiff is unlikely to prevail on the merits.
Plaintiff’s eight causes of action are the subject of defendants’ recently filed motion
to dismiss and for the reasons stated in the memorandum in support of the motion to
dismiss, plaintiff is not likely to prevail on the merits in the claims under 42 U.S.C. § 1983.
In sum, a municipality is liable under § 1983 if it follows a custom, policy, or practice by
which local officials violate a plaintiff's constitutional rights. Monell, 436 U.S. at 694, 98
S.Ct. 2018. Only if a municipality subscribes to a custom, policy, or practice can it be said
to have committed an independent act, the sine qua non of Monell liability. Here, plaintiff
makes the bare allegation in paragraph ten (10) of the complaint that defendants “are
responsible for creating, adopting, approving, ratifying, and enforcing the rules,
regulations, laws, policies, practices, procedures and/or customs that deprived and are
depriving Ms. Bernstein of her fundamental rights. These rules, regulations, laws, policies,
practices, procedures and/or customs are the moving force behind the actions that deprived
and are depriving Ms. Bernstein of her rights as set forth in this complaint.” (Compl. p 4,
¶ 10).
Plaintiff’s complaint has identified no written policy or regulation promulgated by
the municipality WCBOE or defendant Gary Sims (“Sims”) which has been or could
conceivably have been said to be the moving force behind any alleged civil rights injury.
A thorough review of plaintiff’s 141 paragraph and 39-page complaint reveals the absence
of any allegation of a written rule or policy. Plaintiff does allege that WCBOE and Sims in
his official capacity “approved of, directed, and/or ratified the acts, policies, practices,
customs and/or procedures of their personnel that deprived and are depriving Ms. Bernstein
5
of her rights” and that WCBOE “has specifically approved of and ratified the actions of
Defendant Sims that have deprived and are depriving Ms. Bernstein of her rights.” (See
Compl. p 4, ¶ 11). Here again, the complaint does not make any allegation of a widespread
practice of trespassing individuals from the warehouse or the board’s meeting necessary to
state a Monell claim. The complaint only alleges a singular instance of a person (Ms.
Bernstein) being “trespassed” from the WCBOE warehouse. As a matter of fact, Special
Police Officer Carter noted in her affidavit that this was the first time during her assignment
to the WCBOE that she had to call the police. (Response Exhibit 2, ¶ 19). For the reasons
proffered in the Memorandum in Support of the Motion to Dismiss, these allegations are
woefully inadequate to state a claim under 42 U.S.C. § 1983 and any of the constitutional
provisions cited and for that reason alone, plaintiff is unlikely to prevail.
Moreover, even on the merits plaintiff’s claims fail. Plaintiff consistently
mischaracterizes the trespass and its scope. Defendants’ request the court take judicial
notice of the attached Response Exhibit 1, a true, accurate copy of the actual “trespass”
notice issued to plaintiff. First, on the plain face of the trespass, plaintiff is only trespassed
from “1200 N. New Hope Road, Raleigh, NC.” Plaintiff makes the specious claim that the
trespass applies to any WCBOE property, even if that property is accessed only for
purposes of voting and even if that property is only temporarily under the Board’s control
as a polling place because it is “not entirely clear from the written trespass paperwork she
was shown.” [DE 13, p. 2, ¶ 4].
Further, the trespass notice was issued by the Raleigh Police Department and the
“complainant” is shown to be “Janice Carter.” Janice Carter (“Carter”) is and was
employed as a Special Police and was a sworn officer having served formerly as a Deputy
6
Sheriff as shown on her affidavit attached hereto and labeled Response Exhibit 2. Carter is
not an employee of WCBOE. Plaintiff admits in her complaint that it was Carter who told
the Raleigh Police Officer who issued the trespass that plaintiff had been tampering with
the gate. Indeed, the attached Affidavit from Carter reveals she is the one who called the
Raleigh Police Department two (2) times due to “suspicious activity” [and] prior
encounters with Ms. Bernstein being confrontational and not wanting to leave WCBOE
premises after hours[.] (Response Exhibit 2, ¶ 14). Carter explained to plaintiff that she
was allowed to video tape and take photographs but could not tamper with the gate.
Deputy Director Olivia McCall (“McCall”) states in her Affidavit (attached hereto
as Response Exhibit 3) that early voting closed at that location at 3 o’clock PM and she
called Wake County Security to close the gate because early voting voters and workers had
departed the premises and it was necessary to secure the main gate to transition to the
election supply and distribution phase. At the time McCall contacted Wake County
Security to request the closure of the Main Staff Gate, she “was inside the WCBOE and
could not see the activity that was occurring at the Main Staff Gate, but the security officer
informed me that there were two individuals positioned near the gate and one individual
was preventing this gate from properly closing. These two individuals were Plaintiff and
John Brakey.” (Response Exhibit 3, ¶ 5 & 6).1 McCall confirmed that no one at the
WCBOE office can control the opening and closing of the Main Gate – that is done
remotely by a Wake County Security Console Operator. McCall’s version is confirmed by
1
The incident where plaintiff and Brakey interfered with the gate was captured on video. Plaintiff has
requested leave to file several exhibits. Defendants desire to have the Court get access to the video of May
14, 2022 without editing. Some of plaintiff’s “transcripts” are those she typed herself upon information and
belief and some, including videos, are edited or incorrect. Defendant objects to any submission that is
edited or incorrectly “transcribed.”
7
an incident report filed that day by the Console Operator and authenticated by Christopher
Heist, the Operations Manager for Allied Universal Security Services. (See Affidavit
attached hereto as Response Exhibit 4).
Plaintiff’s filings thus far are misleading and, in many instances, categorically false.
For example, plaintiff alleges in her complaint that the subject gate is remote controlled
and that defendant Sims used the remote control in an attempt to hit her with the gate.
(Compl. p 18, ¶ 52). Plaintiff’s filings also mischaracterize her prior involvement with
WCBOE and paint a picture of a citizen who had no previous security issues in the past. In
fact, plaintiff has previously attempted to gain access to the WCBOE during non-public
hours and has been informed that she could not gain access to the WCBOE outside of
business hours or scheduled Board Meetings. (Response Exhibit 3, ¶ 11). Just six months
prior to the trespass incident, on or about October 12, 2021, Deputy Director Olivia McCall
documented Plaintiff’s concerning behavior in an email to Wake County Security
following a regular WCBOE Board meeting on October 5, 2021. Plaintiff had to be asked
to leave the Board meeting room on October 5, 2021 following adjournment and then
proceeded to aggressively approach Board members demanding videoed responses to her
questioning both inside the WCBOE facility and in the parking lot. As a direct result of
plaintiff’s behavior, Wake County Security developed alternative parking arrangements
and security measures for WCBOE board members and staff. (Response Exhibit 3, ¶ 12 &
13).
Plaintiff’s arguments that the trespass constitutes a prior restraint on speech are also
without merit. Plaintiff continuously confuses the basis for the trespass – she claims she
was targeted because of her speech and its contents but admits in her complaint that she
8
was interfering with the closure of a gate on WCBOE property after hours. Thus, plaintiff
has not shown that she suffers from viewpoint restrictions or content-based restrictions.
“Viewpoint discrimination is apparent, for example, if a government official's decision to
take a challenged action was ‘impermissibly motivated by a desire to suppress a particular
point of view.’” Davison v. Randall, 912 F.3d 666, 687 (4th Cir. 2019), as amended (Jan.
9, 2019). Again, plaintiff admits many of the facts leading to the trespass and only by
conjecture alleges that somehow the defendants do not desire transparent elections or want
to hear from citizens about transparency in elections. These contentions are not grounded
in reason. Furthermore, plaintiff is not speech restrained at all – she is trespassed from 1200
N. Hope Road. She can still submit public comments which will be shared with the entire
Board. (Response Exhibit 3, ¶ 14). She can (and has) emailed the Board.
Plaintiff asserts that the WCBOE board room constitutes a limited public forum.
Defendants do not contest that the Board room is most likely a limited public forum.
However, the facts before the Court clearly show that the trespass is both reasonable and
viewpoint neutral. A limited public forum is established when the government property is
“limited to use by certain groups or dedicated solely to the discussion of certain subjects.”
Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S. Ct. 1125, 172 L. Ed. 2d 853
(2009). Furthermore, the Supreme Court “has permitted restrictions on access to
a limited public forum ... with this key caveat: Any access barrier must be reasonable and
viewpoint neutral.” Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll.
of the L. v. Martinez, 561 U.S. 661, 130 S. Ct. 2971, 2976, 177 L. Ed. 2d 838 (2010). Here,
plaintiff again only makes the threadbare assertion that “defendants do not like the views
expressed in [plaintiff’s] advocacy on election issues.” It should seem obvious that had
9
plaintiff not interfered with the closing gate, she would not have been trespassed.
Interestingly, plaintiff admits that the person who accompanied her [identified in the
complaint as Brakey] was also trespassed but does not allege that he has the same so-called
“animus” that plaintiff claims exist between defendants and her. The restrictions on
plaintiff are reasonable in that 1) they are based upon past actions of plaintiff that have
created reasonable security concern for a government operation which requires a high
amount of security and 2) plaintiff has other and as effective means to be expressive and
communicate her viewpoints other than coming on to the property at 1200 N. New Hope
Road.
Plaintiff also asserts that the trespass violates her First Amendment rights to petition
the government. She asserts that defendants have permanently banned her from addressing
the WCBOE. This is simply false. Plaintiff is a vociferous communicator. In her filings
with the Court, she fails to note that she can still make public comment at WCBOE
meetings, she can email members of the Board and she can and does post copious social
media communications about elections, the defendants and indeed this lawsuit. Plaintiff
claims that the WCBOE possesses quasi-judicial powers and therefore she is deprived of
access to the courts. First, the WCBOE is not always required to conduct hearings at its
warehouse location at 1200 N. New Hope Road, Raleigh, NC. The Board can hold hearings
at any location in the county and thus plaintiff could participate in hearings. Second,
decisions of a county board sitting in any quasi-judicial capacity are always subject to
review and appeal by the State Board and then to the appellate courts. See N.C.G.S. § 163-
182.11.
10
Plaintiff erroneously asserts that she is being denied the right to vote in violation of
the equal protection clause of the 14th Amendment because “it is beyond dispute that she
has been singled out for disparate treatment by defendants.” This is not true. It is true that
plaintiff [and Brakey] engaged in conduct that concerned Special Police Officer Carter
enough to call the Raleigh Police Department for the first time during her assignment.
Plaintiff [and Brakey] were trespassed for interfering with the gate and every person who
engages in similar conduct will and should receive equal treatment, regardless of
viewpoint. Plaintiff is not being treated disparately – she [and Brakey] just happen to be
the first and only persons to engage in this concerning conduct.
Plaintiff argues that she has been deprived of due process protected under the 14
Amendment. Plaintiff cites N.C.G.S. § 14-159.13(a)(1) for the proposition that she was
trespassed under the requirement of that statute that before a person could be charged with
2nd degree trespass , the trespass is only criminal if it occurs “[a]fter he has been notified
not to enter or remain there by the owner, by a person in charge of the premises, by a lawful
occupant, or by another authorized person; N.C.G.S § 14-159.13. Plaintiff correctly notes
that the statute does not provide a process for challenging the “lawfulness” of having been
trespassed under this statute. What plaintiff does not mention is that she has not made any
effort to request defendants to allow her to come on to the property. Ostensibly, an owner
who requests that another not come upon the property for security reasons could, after
having satisfied themselves that the security risk no longer exist, allow a person back on
the property.
Finally, as to plaintiff’s allegations that she was retaliated against for exercising her
First Amendment free speech rights, again plaintiff misses the point. Plaintiff claiming
11
First Amendment retaliation must demonstrate that: (1) he engaged in protected First
Amendment activity, (2) defendants took some action that adversely affected his First
Amendment rights, and (3) there was causal relationship between his protected activity
and defendants' conduct. Davison v. Rose, 19 F.4th 626 (4th Cir. 2021), cert. denied sub
nom. Davidson, Brian v. Rose, Deborah, Et Al., No. 21-1532, 2022 WL 4651919 (U.S.
Oct. 3, 2022). Plaintiff’s misconduct of tampering with the gate after hours is not protected
First Amendment activity. Defendants’ decision had noting to do with plaintiff’s speech
and there was no causal relationship between any expressive activity of plaintiff and
defendants’ conduct.
II. Plaintiff will not suffer irreparable harm.
While loss of First Amendment rights can constitute irreparable harm, plaintiff has
failed to make a showing of First Amendment harm. Today, plaintiff is allowed to engage
in all the activities she claims she was able to engage in before the trespass with the
exception of coming on the property at 1200 N. Hope Road and attending a WCBOE
meeting in person. She is, however, still allowed to address the Board in public comment,
she can present comments online and have those comments presented in an open meeting
via an online portal and can receive an email notice prior to every Board meeting with an
agenda. (Response Exhibit 3, ¶ 14). Plaintiff has the unfettered right to vote and indeed
has voted in person at her home precinct since the trespass. (See Response Exhibit 3, ¶ 15
and Exhibit D attached thereto). She is and will be entitled to vote in person in the
upcoming November 2022 general election. She can run for office and she is, as is any
citizen, allowed to file her candidacy and run for any office she wishes. She is allowed to
12
serve as a poll observer if she is appointed by a political party as allowed by N.C.G.S. §
163-45.
Plaintiff can vote at many different early voting sites around the county. Plaintiff is
allowed to return voter registration forms in other ways other than delivery at 1200 N. New
Hope Road. Plaintiff is not an appointed poll worker or poll greeter and therefore would
not be eligible for poll worker training. (Response Exhibit 3, ¶ 15 through 19). Plaintiff
may protest in public fora and can (and has) continued to post social media
communications. Plaintiff has simply not suffered the constitutional injuries she claims.
III. The balance of equities does not tip in favor of plaintiff and the public interest
tips in favor of defendants.
Despite plaintiff’s exaggerated allegations about not being able to vote, having her
speech restrained and not being able to petition the government, a review of the simple
trespass attached hereto shows that plaintiff was only trespassed from one location.
Plaintiff’s use of the words “total ban” when referring to her voting rights, her participation
in the electoral process and her rights to speech and petition is disingenuous. She is allowed
to engage the electoral process in virtually the same manner as before the trespass. On the
other hand, WCBOE has a strong interest in protection of the security of the warehouse
where ballots are stored, distributed, and where election machines are stored and
distributed. Plaintiff claims she cannot appear in person at a Board meeting held at the
warehouse. This must be balanced with the fact that the Board is required by law to secure
and protect hundreds of thousands of documents (many of them confidential by law) and
numerous equipment such as ballots, registration documents, vote counting machines and
all the attendant gear that goes with the proper and orderly process of elections.
13
In her affidavit, Special Police Janice Carter noted that there was “heightened
security because of the active election.” (Response Exhibit 2, ¶ 14). Defendants have the
important responsibility to safeguard and ensure the security of the Board’s elections
operation warehouse, especially three (3) days before an election.2 Carter deemed
plaintiff’s vehicle suspicious because she observed it parked at an offsite business where
all employees had left and then relocated to a second, neighboring business, triggering
ongoing security surveillance. Deputy Director McCall noted that the date of this incident
was a “critical time for election processing.” (Response Exhibit 3, ¶ 5). Therefore, WCBOE
has every reason and obligation to respond to this security incident and the equities weight
in favor of defendants.
CONCLUSION
Plaintiff is asking the Court to find that no person may ever be trespassed from a
public building, one that may even constitute a limited public forum. Indeed no case law
supports such a proposition and in certain circumstances a citizen may properly be
trespassed from limited public fora. The facts of this case demonstrate such a case. Here
defendants are trying to facilitate an election on one of the busiest days of the election year
to transition from training to distribution of voting machines (a “critical time for election
processing”), deliver equipment and resources to the various precincts while plaintiff elects
to come onto the property and create a genuine, objective security issue. For these and the
2
Plaintiff does not seem to dispute the fact that Carter and WCBOE staff had a genuine concern over what
they deemed suspicious activity and security concerns. Contrary to the assertion in the Memorandum in
Support of Preliminary Injunction that plaintiff was “banned without any objective and legitimate
justifications whatsoever [DE 14, p. 20], Plaintiff writes in her submission that “Officer Carter called 911 a
second time after she arrived back at her car and stated to the operator that “They’ve started to tamper with
the gate that is closed….So they are attempting to get in by tampering with the gate.” (Declaration of Lynn
Bernstein, DE 14-2, paragraph 27).
14
foregoing reasons, defendants respectfully request that the court deny the plaintiff’s motion
for preliminary injunction.
Respectfully submitted this the 4th day of October, 2022.
/s/ Scott W. Warren

Scott W. Warren, NCSB # 14349
County Attorney
/s/ Roger A. Askew

Roger A. Askew, NCSB # 18081
Senior Deputy County Attorney
/s/ Allison P. Cooper

Allison P. Cooper, NCSB # 34160
Deputy County Attorney
Post Office Box 550
Raleigh, North Carolina 27602
Phone: (919) 856-5500
Fax: (919) 856-5504
Attorneys for Defendants
15
WESTERN DIVISION
5:22-CV-277-BO-KS
LYNN BERNSTEIN )
)
Plaintiff, )
)
v. )
)
)
Defendants. )
The undersigned hereby certifies that the foregoing DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION was electronically filed with the Clerk of Court using the CM/ECF filing
system and served via electronic transmission through the Court’s CM/ECF system in
accordance with Rule 5(b)(2)(D) of the Federal Rules of Civil Procedure and applicable
local rules upon the CM/ECF participants:
B. Tyler Brooks
Law Office of B. Tyler Brooks, PLLC
P.O. Box 10767
Greensboro, NC 27404
btb@btylerbrookslawyer.com
Meredith Woods Hubbard

Hubbard Law Firm
150 Fayetteville Street
Suite 300
Raleigh, NC 27601
meredith@hubbardlawnc.com
16
This the 4th day of October, 2022.
/s/ Roger A. Askew

Roger A. Askew
Senior Deputy Wake County Attorney
Post Office Box 550
Raleigh, North Carolina 27602
Phone: (919) 856-5500
Fax: (919) 856-5504
17
WESTERN DIVISION
5:22-CV-277-BO-KS
LYNN BERNSTEIN )
)
Plaintiff, )
)
v. )
)
)
Defendants. )
INDEX OF EXHIBITS
Response Exhibit 1 – certified copy of Trespass notice
Response Exhibit 2 – Affidavit of Janice Carter

 Affidavit Ex. A – Daily Officer Report
Exhibit 3 – Affidavit of Olivia McCall

 Affidavit Ex. A – certified copy of Trespass notice
 Affidavit Ex. B – 10/05/21 email correspondence
 Affidavit Ex. C – screenshot of public comment portal on WCBOE website
 Affidavit Ex. D – N.C. State Board of Elections voter history for Lynn Bernstein
Exhibit 4 – Affidavit of Christopher Heist

 Affidavit Ex. A – 05/14/22 Wake County Security Incident Report
Case 5:22-cv-00277-BO-KS Document 20-1 Filed 10/04/22 Page 1 of 1


Bernstein v. Sims, Response To Motion For Preliminary Injuction

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Bernstein v. Sims, Response To Motion For Preliminary Injuction

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S

13], and in opposition to plaintiff’s Motion for Preliminary Injunction as to Counts I

STANDARD OF LEGAL REVIEW

The purpose of a preliminary injunction is merely to preserve the relative positions

Case 5:22-cv-00277-BO-KS Document 20 Filed 10/04/22 Page 1 of 17

197, 216 n.8 (4th Cir. 2019).

STATEMENT OF THE FACTS

the street from the Board’s property.” (Compl. p 17, ¶ 48).

(Response Exhibit 2, attached exhibit B entitled “Daily Officers Report”).

I. Plaintiff is unlikely to prevail on the merits.

In sum, a municipality is liable under § 1983 if it follows a custom, policy, or practice by

Plaintiff’s complaint has identified no written policy or regulation promulgated by

Moreover, even on the merits plaintiff’s claims fail. Plaintiff consistently

was shown.” [DE 13, p. 2, ¶ 4].

“complainant” is shown to be “Janice Carter.” Janice Carter (“Carter”) is and was

remotely by a Wake County Security Console Operator. McCall’s version is confirmed by

attached hereto as Response Exhibit 4).

documented Plaintiff’s concerning behavior in an email to Wake County Security

proceeded to aggressively approach Board members demanding videoed responses to her

plaintiff’s behavior, Wake County Security developed alternative parking arrangements

“Viewpoint discrimination is apparent, for example, if a government official's decision to

take a challenged action was ‘impermissibly motivated by a desire to suppress a particular

(2009). Furthermore, the Supreme Court “has permitted restrictions on access to

the first and only persons to engage in this concerning conduct.

occupant, or by another authorized person; N.C.G.S § 14-159.13. Plaintiff correctly notes

II. Plaintiff will not suffer irreparable harm.

supports such a proposition and in certain circumstances a citizen may properly be

for preliminary injunction.

Respectfully submitted this the 4th day of October, 2022.

/s/ Scott W. Warren

/s/ Roger A. Askew

/s/ Allison P. Cooper

The undersigned hereby certifies that the foregoing DEFENDANTS’ RESPONSE

IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY

local rules upon the CM/ECF participants:

Meredith Woods Hubbard

/s/ Roger A. Askew

Response Exhibit 1 – certified copy of Trespass notice

Response Exhibit 2 – Affidavit of Janice Carter

Exhibit 3 – Affidavit of Olivia McCall

Exhibit 4 – Affidavit of Christopher Heist

Case 5:22-cv-00277-BO-KS Document 20-1 Filed 10/04/22 Page 1 of 1

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