Opinion
No. 2011 CRB 37727.
2012-05-9
CITY OF CLEVELAND, Plaintiff v. Christopher BROOKS, Defendant.
Christina E. Haselberger, Assistant Prosecutor, for the City of Cleveland. Gordon S. Friedman, Cleveland, for defendant.
Christina E. Haselberger, Assistant Prosecutor, for the City of Cleveland. Gordon S. Friedman, Cleveland, for defendant.
ZONE, JOSEPH J., Judge.
Defendant is charged with resisting arrest, Cleveland Codified Ordinances 615.08; criminal trespass, C.C.O. 623.04(A)(4); and violating prohibited hours in Public Square, C.C.O. 559.541. The court now has before it defendant's two motions to dismiss, both filed December 2, 2011, and the City's response in opposition, filed December 21, 2011. For the reasons set forth below, defendant's motions to dismiss are both hereby DENIED.
Introduction
Defendant is a member of the Occupy Cleveland/Occupy Wall Street movement, peacefully seeking changes in this country's economic system. He and ten other like-minded individuals were arrested by officers of the Cleveland Police Department when they refused to leave Public Square in downtown Cleveland, Ohio on the evening of October 21, 2011. Officers ordered them to leave pursuant to Cleveland Codified Ordinance 559.541, which prohibits remaining on Public Square after 10pm unless a permit has been granted by the Director of Parks, Recreation and Properties. A permit had earlier been granted, but defendant and his friends allegedly overstayed their welcome.
Defendant argues that the prohibited hours ordinance, C.C.O. 559.541, is unconstitutional and thus violates his First Amendment and Fourteenth Amendment rights. If that is so, he argues, he had a right to lawfully remain on Public Square and the criminal trespass and resisting arrest charges ought never to have been brought against him.
The court is not persuaded. The court believes that C.C.O. 559.541 is a reasonable,valid and content-neutral exercise of the City's police power, and that defendant's constitutional rights have not been violated.
Constitutionality of Ordinance
It is well settled under Ohio law that “all legislative enactments must be afforded a strong presumption of constitutionality.” State v. Knight (2000), 140 Ohio App.3d 797, 810, 749 N.E.2d 761;see also State v. Anderson (1991), 57 Ohio St.3d 168, 566 N.E.2d 1224. In order for a court to declare a statute or ordinance unconstitutional, it must appear beyond a reasonable doubt that the measure is incompatible with a particular constitutional provision. State v. Cook (1998), 83 Ohio St.3d 404, 409, 700 N.E.2d 570. One who challenges a statute must establish that no set of circumstances exists under which the statute would be valid. State v. Coleman (1997), 124 Ohio App.3d 78, 80, 705 N.E.2d 419, citing United States v. Salerno (1987), 481 U.S. 739, 749, 107 S.Ct. 2095, 2102–2103, 95 L.Ed.2d 697. Defendant cannot establish this, and his motions should fail. The presumption of constitutionality has not been overcome; far from it.
As the Supreme Court of Ohio has held, “Ohio law abounds with precedent to the effect that constitutional issues should not be decided unless absolutely necessary.” Mayer v. Bristow (2000), 91 Ohio St.3d 3, 9, 740 N.E.2d 656, quoting Ohioans for Fair Representation, Inc. v. Taft (1993), 67 Ohio St.3d 180, 183, 616 N.E.2d 905, in turn quoting Hall China Co. v. Pub. Util. Comm. (1977), 50 Ohio St.2d 206, 210, 364 N.E.2d 852. Courts should not reach constitutional issues where a case is capable of resolution on other grounds. In re Miller (1992), 63 Ohio St.3d 99, 110, 585 N.E.2d 396;In re Boggs (1990), 50 Ohio St.3d 217, 221, 553 N.E.2d 676;State v. Kawaguchi (2000), 137 Ohio App.3d 597, 610, 739 N.E.2d 392. The court believes the question of the ordinance's constitutionality is squarely before it, however, and ought to be addressed.
Generally, a “legislative enactment will be deemed valid ... if it bears a real and substantial relation to public health, safety, morals or general welfare of the public and ... if it is not unreasonable or arbitrary.” Mayer, supra, 91 Ohio St.3d at 13, 740 N.E.2d 656, quoting Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 274, 503 N.E.2d 717; see also Benjamin v. Columbus (1957), 167 Ohio St. 103, 146 N.E.2d 854;Morris v. Savoy (1991), 61 Ohio St.3d 684, 688–689, 576 N.E.2d 765. It is a “well-settled principle of statutory construction that where constitutional questions are raised, courts will liberally construe a statute to save it from constitutional infirmities.” Woods v. Telb (2000), 89 Ohio St.3d 504, 516–517, 733 N.E.2d 1103, quoting State v. Sinito (1975), 43 Ohio St.2d 98, 101, 330 N.E.2d 896, citing State ex rel. Prospect Hosp. v. Ferguson (1938), 133 Ohio St. 325, 13 N.E.2d 723; see also Wilson v. Kennedy (1949), 151 Ohio St. 485, 86 N.E.2d 722. Furthermore, R.C. 1.47 provides, “In enacting a statute, it is presumed that ... compliance with the constitutions of the state and of the United States is intended....”
The Constitution of Ohio authorizes cities “to exercise all powers of local self-government,” and to adopt and enforce within their limits local police, sanitary and other similar regulations which do not conflict with the general laws of the state. Ohio Const. Art. XVIII, Sec. 3; Youngstown v. Craver (1933), 127 Ohio St. 195, 187 N.E. 715. Cities are authorized by statute to prevent riot, noise and disturbances, and to preserve peace and good order. R.C. 715.49. Any doubt as to the legislative power of a city council must be resolved in favor of that body. Youngstown v. Mitchell (1943), 30 Ohio Op. 122. A city ordinance is presumed constitutional when it has a substantial relationship to the public peace, health, safety or welfare and is not arbitrary, discriminatory, capricious or unreasonable. Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163;Geauga Co. Bd. of Commrs. v. Munn Rd. Sand & Gravel (1993), 67 Ohio St.3d 579, 621 N.E.2d 696;Akron v. Holley (1989), 53 Ohio Misc.2d 4, 557 N.E.2d 861. The ordinance must be reasonably designed to accomplish a purpose falling within the scope of the police power. Springfield v. Hurst (1943), 41 Ohio L. Abs. 129, 57 N.E.2d 425,judg. affd.(1944), 144 Ohio St. 49, 56 N.E.2d 185. See also Feldman v. Cincinnati (S.D.Ohio 1937), 20 F.Supp. 531.
The exercise of the police power “is valid if it bears a real and substantial relationship to the public health, safety, morals or general welfare, and if it is not unreasonable or arbitrary.” Ottawa Co. Bd. of Commrs. v. Marblehead (1999), 86 Ohio St.3d 43, 711 N.E.2d 663;Phillips v. State (1907), 77 Ohio St. 214, 82 N.E. 1064;Dublin v. State (2002), 118 Ohio Misc.2d 18, 769 N.E.2d 436. Legislation in furtherance of a city's police power “is only limited by the public welfare and the Constitution.” Commrs. of Franklin Co. v. Publ. Util. Comm. (1923), 107 Ohio St. 442, 140 N.E. 87;Columbus v. Truax (1983), 7 Ohio App.3d 49, 454 N.E.2d 184;Dublin, supra, 118 Ohio Misc.2d at 63, 769 N.E.2d 436. A municipal ordinance, or the application thereof, must not be “arbitrary, discriminatory, capricious or unreasonable.” Cincinnati v. Correll (1943), 141 Ohio St. 535, 49 N.E.2d 412;Richmond Heights v. LoConti (1969), 19 Ohio App.2d 100, 250 N.E.2d 84;Truax, supra, 7 Ohio App.3d at 51, 454 N.E.2d 184. “Wide discretion is not unlimited discretion, and ... reasonable presumptions require reasonable interpretation.” LoConti, supra, 19 Ohio App.2d at 113, 250 N.E.2d 84. Among a city's governmental functions are regulation of the use or maintenance of public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and (most importantly for this case) public grounds. R.C. 2744.01(C).
It is clear that the City of Cleveland may regulate, within broad bounds, when citizens and visitors may remain in Public Square, and when they must leave. Public Square is not a campground. The City persuasively argues that its ordinance is necessary for the promotion of the public health, welfare and safety. In arguing that the City cannot reasonably distinguish between a person unlawfully standing on Public Square after hours, or lawfully standing on a nearby sidewalk moments later, defendant ironically seems to be calling for the City to have a more restrictive, even onerous, ordinance than it already does. That cannot be his intention. In any event, although the ordinance at issue is not as broadly worded as some which have previously been upheld as valid, Thomas v. Chicago Park Dist. (2002), 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783, it clearly passes constitutional muster.
Prosecutorial Discretion
Defendant argues that he was improperly charged, and that the City cannot prosecute him for violating prohibited hours in Public Square, Cleveland Codified Ordinances 559.541, since there also exists (and he was also charged with) a more general charge of criminal trespass, C.C.O. 623.04(A)(4). The court is not persuaded.
A prosecutor has broad discretion in deciding how to charge an individual. There is a strong presumption that prosecutorial choices are not discriminatory. State v. Keene (1998), 81 Ohio St.3d 646, 693 N.E.2d 246; Cleveland v. Trzebuckowski (1999), 85 Ohio St.3d 524, 532, 709 N.E.2d 1148; see also Cleveland v. Whitner (2002), 119 Ohio Misc.2d 100, 774 N.E.2d 788. The conscious exercise of some selectivity in enforcement is not, in itself, a violation of the Equal Protection Clause. State v. Flynt (1980), 63 Ohio St.2d 132, 407 N.E.2d 15;Zageris v. Whitehall (1991), 72 Ohio App.3d 178, 186, 594 N.E.2d 129. Intentional or purposeful discrimination will not be presumed from a showing of mere differing treatment. Snowden v. Hughes (1944), 321 U.S. 1, 8–9, 64 S.Ct. 397, 88 L.Ed. 497, cited in State v. Freeman (1985), 20 Ohio St.3d 55, 58, 485 N.E.2d 1043. In our system of justice,
So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring ... generally rests entirely in his discretion.
Bordenkircher v. Hayes (1978), 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604;State ex rel. Nagle v. Olin (1980), 64 Ohio St.2d 341, 347, 415 N.E.2d 279. This is so unless the prosecutor's decision is based upon an improper factor such as the defendant's race or religion. Nagle, 64 Ohio St.2d at 347, 415 N.E.2d 279. A prosecutor may consider the nature or degree of aggravation of a crime in deciding whether or not to prosecute. Nagle, 64 Ohio St.2d at 348, 415 N.E.2d 279. Defendant has not shown that the City acted outside the bounds of the law in deciding how to charge him.
First Amendment
The First Amendment provides, “Congress shall make no law ... abridging the freedom of speech.” Although the First Amendment originally applied only to Congress, state and local governments are equally bound to respect the free speech rights of citizens under the terms of the Fourteenth Amendment. Cantwell v. Connecticut (1940), 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213;Parks v. Columbus (6th Cir.2005), 395 F.3d 643, 647.
Defendant directs the court's attention to Ohio Citz. Action v. Englewood (6th Cir.2012), 671 F.3d 564, unreported. In Englewood, the U.S. Court of Appeals for the Sixth Circuit considered a city's ordinance establishing a curfew and limiting door-to-door canvassing and solicitation at private residences between 6pm and 9am. The court found that the curfew was not related directly enough to the city's interest in either protecting residential privacy or preventing crime, although it left intact the city's requirement that canvassers and solicitors respect “No solicitors” signs posted by residents, and carry copies of the city's “Do not solicit” list. Englewood is easily distinguishable from the case now before this court. As noted above, the City of Cleveland persuasively argues that its ordinance is necessary for the promotion of the public health, welfare and safety. Residential privacy is not at issue here, as it was in Englewood, and preventing crime is only one of the City's several asserted interests. The ordinance protects the City's interests in maintaining and preserving its own preeminent open space, historic Public Square, and does not address the municipal government's more problematic role in limiting the access of solicitors to citizens in their homes, as Englewood does. Lastly, the court is satisfied that the ordinance's restrictions “prescribe adequate standards for administering officials to apply ... are narrowly tailored to serve a significant government interest ... and ... leave open ample alternatives for communication.” Thomas, supra, 534 U.S. at 323, 122 S.Ct. 775, 151 L.Ed.2d 783;Englewood, at 571.
This court is second to none in its respect for the First Amendment. The freedomsguaranteed by the First Amendment “are delicate and vulnerable, as well as supremely precious in our society....” NAACP v. Button (1963), 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405;Rhines v. Bailiss (2005), 140 Ohio Misc.2d 5, 865 N.E.2d 963. They are “fundamental to the protection of our democracy and are not to be interfered with lightly.” Greer v. Columbus Monthly Publishing Corp. (1982), 4 Ohio App.3d 235, 448 N.E.2d 157.
Clearly, however, the “right to communicate and persuade [does] not include the right to trespass on another's rights.” Cleveland v. Sundermeier (1989), 48 Ohio App.3d 204, 549 N.E.2d 561. No one has the First Amendment right to remain indefinitely on public land in order to make a point. Clark v. Community for Creative Non–Violence (1984), 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221. A content-neutral regulation may impose reasonable restrictions on the time, place, or manner of speech as long as the restrictions are justified without reference to the content of the speech, are narrowly tailored to serve a significant governmental interest, and leave open alternative channels for communication of the information. Ward v. Rock Against Racism (1989), 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661. It is the court's opinion that C.C.O. 559.541 clearly meets this test.
Conclusion
Defendant has a First Amendment right to make his views known, without fear of censorship, intimidation or brutality, unlike far too many other people around the world in countries less free than the United States. But that right is not unlimited. Defendant was warned that he was in violation of a Cleveland ordinance and given ample opportunity to leave Public Square. He chose to stay, ignoring the orders of police, and was arrested. Of course defendant is still presumed innocent, and is entitled to a fair trial, but he has failed to show that the ordinance was unconstitutional, or that he could not lawfully be charged as he was.
Accordingly, defendant's motions to dismiss are both hereby denied.