He told the officer that he and other pro-life counselors were "practicing social distancing," and that the police should "go in the abortion clinic and make the arrests there" out of concern for mass gatherings during the pandemic.
Sen. Ted Cruz (R-Tex.) tweeted that Benham's arrest was "unconstitutional and a serious abuse of power."
The legal group Alliance Defending Freedom (ADF) sent a letter to the city's attorney on Benham's behalf, arguing that Benham's group and Love Life, another group of pro-life advocates, are not subject to the order's 10-person gathering prohibition as they are charitable organizations providing social services.
Furthermore, on April 4 the pro-life advocates were outdoors with people properly spaced apart, ADF said. Counsel for the groups had previously confirmed with a police officer that they were within their rights to pray on sidewalks outside the clinic provided that they maintained a six-foot minimum distance between persons and had hand sanitizer available.
ADF argued in its letter that the pro-life groups are religious nonprofits "providing charitable and social support services to vulnerable persons" and thus "qualify as 'Essential Business'" under the governor's order and should not be subject to the 10-person limit on gatherings.
The right to free speech "in public fora like the streets and sidewalks" is "well-established," ADF said, and "[a]ny prohibition on this expressive activity in these fora is subject to strict scrutiny." The city's act to disperse the prayer gathering of more than ten people outside is "arbitrary and a pretext for discrimination based on protected speech," ADF said.
"Please instruct any City of Charlotte officers or employees to drop all criminal charges pending against my clients and discontinue their interference with their right to engage in assembly, prayer, counseling, and other expressive activities on public property," ADF senior counsel Kevin Theriot stated in his letter.
Members of the group Love Life were also arrested in Greensboro, North Carolina on March 28 and again on March 30 while praying outside an abortion clinic. According to citations, they were arrested for travel[ing] for a non-essential function [/purpose]," unlawfully traveling by car to the location rather than on foot.
ADF also sent a letter to the city of Greensboro on behalf of the pro-life advocates, saying the groups limited their activities to fewer than 10 people to comply with local regulations, and that participants were spaced out more than six feet apart.