Protest Situations


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Cincinnati v. Flannery, 176 Ohio App. 3d 181, 2008-Ohio-1437 – Iraq War protestors were arrested for criminal trespass hours after Congressman Chabot‘s office had closed. He was in D.C. They insisted he sign a document expressing support for a speedy end to the war. Necessity doesn‘t fly as a defense. ¶7: The harm the protestors sought to avoid was not a 'legal' harm because the war was not shown to be illegal."
Scheidler v. National Organization for Women (2003), 123 S.Ct. 1057 -- R.I.C.O. class action against abortion protesters fails as the predicate acts were not established. Protestors did not commit extortion as they did not seek to obtain property.
Hill v. Colorado (2000), 120 S.Ct. 2480 -- Provision barring approach within eight feet of persons near health care facilities found narrowly tailored, content-neutral, neither vague or overly broad, and not a prior restraint on speech.
State v. Cephus, 161 Ohio App. 3d 385, 2005-Ohio-2752 -- Dayton ordinance proscribing boisterous conduct interfering with a city commission meeting held not to be unconstitutionally vague, or violate First Amendment rights. Testimony concerning prior disruptive acts properly admitted as similar acts evidence. The offense does not merge with disorderly conduct.
State v. Logsdon, 160 Ohio App. 3d 517, 2005-Ohio-1875 -- Abortion protestor's sign was carried into a clinic by the executive director. Sign's owner was privileged to enter the premises and retrieve it. Criminal trespass conviction reversed.
Cincinnati v. Summers, Hamilton App. No. C-020624, 2003-Ohio-2773 -- Disorderly conduct conviction was not supported by the evidence. At ¶ 8: "Simply protesting within the limits of the law did not reasonably support the inference that Summers was insulting, taunting, or challenging passing motorists. Further, from out review of the record, we hold that peacefully protesting in a crosswalk while raising a small bat in the air and yelling 'Black Power,' without swinging the bat so as to hit a passing vehicle, was not something that was likely to provoke a violent response."
State v. Wolf, Hamilton App. No. C-030957, 2004-Ohio-5053 -- Demonstrator blocked traffic on a downtown street, and refused to move out of the way at an officer's request. Evidence would have supported a conviction for obstructing official business, but court found her guilty of disorderly conduct. Disorderly held not to be a lesser-included offense.
Cleveland v. Swieciki, 149 Ohio App. 3d 77, 2002-Ohio-4027 -- Baseball fan was charged with disorderly and resisting after heckling an Indians left fielder. (1) Merely being seen drinking beer did not establish the intoxication element. (2) Nor was the alarm or offense element proved. Fans are invited to cheer. At ¶24: "Appropriate conduct in this type of setting differs from what may be appropriate in church...(T)he words uttered by Swieciki to voice his displeasure at Branyan's lack of speed in a baseball game can hardly be perceived as offensive to ordinary sensibilities rising to the level of criminal disorderly conduct; some in attendance may even have shared his sentiments."
Bellecourt v. Cleveland, 104 Ohio St. 3d 439, 2004-Ohio-6551 -- Protestors were arrested, but not prosecuted, for arson after a newspaper stuffed effigy of Chief Wahoo flared up. Subsequent 1983 action is shot down. Pfeifer dissenting at ¶27: "If we allow flag burning in this country, we should certainly allow Chief Wahoo effigy burning. Our flag stands for over 200 years of freedom and unity; Chief Wahoo stands for 56 years (and counting) of baseball futility."
State v. Gregorino, Portage App. No. 2003-P-0071, 2004-Ohio-4698 -- Leader of protesters commemorating the anniversary of the Kent State shootings was charged with disorderly conduct after the group entered a city street closed by the police. Inconvenience element was based on the testimony of a woman who had to take an alternate route on the way home from a pizza shop, though it had been the police who closed the street, impeding traffic. Court refuses to apply a proximate cause standard. Reversed.
State v. Lessin (1993), 67 Ohio St. 3d 487 -- Inciting to violence prosecution arose from demonstration which included a flag burning, previously held to be a constitutionally protected activity. Syllabus: "When a criminal offense charged arises from conduct which encompasses both a constitutionally protected act and an act that is not constitutionally protected, failure of the trial court to instruct the jury that it may not consider evidence of the constitutionally protected act as proof of the defendant's guilt is reversible error."
State v. Scott (1997), 123 Ohio App. 3d 331 -- Abortion protestor was convicted of disorderly conduct. No First Amendment violation found as it was the loudness of his speech, not its content, which was the basis for the charge.
State v. Rose (1975), 44 Ohio Misc. 17 -- Affidavit charging disorderly conduct dismissed. Conduct was distributing leaflets asking people not to patronize store involved in a labor dispute.
Cleveland v. Egeland (1986), 26 Ohio App. 3d 83 -- Disorderly conduct to lie in an intersection near Public Square in Cleveland to protest nuclear warfare.
Akron v. Wendell (1990), 70 Ohio App. 3d 35, 44 -- Disorderly conduct and criminal trespass charges, though arising from the same demonstration, are not allied offenses of similar import.
Cleveland v. Sundermeir (1989), 48 Ohio App. 3d 204 -- First amendment right to free speech did not give abortion protester right to trespass on parking lot of clinic.
Dayton v. Gigandet (1992), 83 Ohio App. 3d 886 -- Necessity does not excuse criminal trespass by abortion protesters.
Dayton v. Dunnigan (1995), 103 Ohio App. 3d 67 -- (1) Aggravated menacing convictions were supported by the evidence where the defendant, while picketing, asked workers at an abortion clinic if they wore bullet proof uniforms, and made express reference to a fatal shooting at another clinic. (2) There was no First Amendment violation. Analogy to "fighting words" disorderly conduct cases is ill-conceived, as the sort of threats giving rise to menacing charges are not among the class of utterance protected by the First Amendment. Also see State v. Smith (1998), 126 Ohio App. 3d 193.
Dayton v. Esrati (1997), 125 Ohio App. 3d 60 -- Disrupting a lawful meeting and other charges were properly dismissed where city could not show its actions were not directed at the communicative nature of the defendant's conduct. Defendant quietly donned a ninja mask during city council meeting to protest proposal to reduce public participation.
State v. Wolf (1996), 111 Ohio App. 3d 774 -- Disturbing a lawful meeting and obstructing official business convictions upheld where defendant, protesting procedure at a county board of health meeting, took a seat at the board meeting table, refused to leave and read a prepared statement.
Cleveland v. Anderson (1992), 82 Ohio App. 3d 63 -- Abortion protestors refused to pay fine upon conviction for disorderly conduct and asked to be sent to the workhouse. Instead, judge proposed to place them on probation and order them to perform eighty hours of community service. Upon refusal either to pay the fine or do the community service, the judge found the defendants in contempt. Conduct held not to be subject to punishment as contempt as it was not motivated by improper or illegitimate purpose. The defendants had a statutory right to refuse to perform community service and by statute were required to work off the fine at thirty dollars per day if they refused to pay and were not indigent.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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