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Practicing Protest: A Right Defined By Its Defense

Jul 15, 2020

 

 

July 6, 2020

By Leyla Shokoohe, CBA director of communications

 

The right of the people to peaceable assembly is inalienable, enshrined in the First Amendment of the Constitution of the United States. Cincinnatians have long exercised this right; protests preceded the Courthouse riots of 1884, and protests followed the death of Timothy Thomas, an unarmed black teenager, in April 2001.


The premise of protest itself is deceptively simple: display signs of disagreement for attention.

“The majority of [a protest] is both physical and verbal,” said Bill Gallagher, an attorney with Arenstein & Gallagher and former public defender. “Signs of disagreement with policies and laws and behavior of our government, primarily. It can range from anything; acts of civil disobedience…blocking traffic or causing a disturbance purposely to draw attention to a situation or cause that happens all the time.”

In May and June of 2020, protests took place across the nation, including in Cincinnati, spurred by the death of another black man, George Floyd, who died of asphyxiation by police officers in Minneapolis on May 25. On May 29, protests began in Cincinnati. Mayor John Cranley enacted a citywide curfew May 30, beginning at 10 p.m. According to the Cincinnati Enquirer, by June 9, more than 300 people were charged with violating the curfew – largely protesters who remained in the streets past curfew.

The United States Supreme Court has made it abundantly clear that protests are constitutionally protected forms of speech. In the 1969 case of Shuttlesworth v. City of Birmingham, the Court held that “Picketing and parading may constitute methods of expression entitled to First Amendment protection, and use of the streets for that purpose, though subject to regulation, may not be wholly denied.”

And the court made clear that any such regulation had to be very narrowly tailored, noting that “[a] law subjecting the right of free expression in publicly owned places to the prior restraint of a license, without narrow, objective, and definite standards is unconstitutional, and a person faced with such a law may ignore it and exercise his First Amendment rights.”

The point at which protests cross into alleged illegal behavior is contentious.

“That is very difficult to determine,” said Gallagher. “I think that is almost always going to be somewhat situational, because there are so many different factors in it. The response of the police and the authorities to those that are protesting, the counter-response from those that are protesting, and then we always have the potential people who have nothing to do with the protest interjecting themselves into that interaction between authority and protesters.”

The imposition of curfews further muddies the legal water of protest. When protesters stay out past curfew, they are charged with violating curfew, not necessarily with any wrongdoing protest-wise. But is that constitutional? The enacting of curfews curtails protest behavior, itself, as mentioned above, an action firmly enshrined in the Constitution of the United States and protected by United States Supreme Court decisions.

“We’ve used, successfully, a necessity defense,” said Gallagher. “Which is, ‘The harm I’ve caused with my action is far outweighed by the harm I was preventing. So I’ve prevented a greater harm from occurring.’ There’s an area of the law that recognizes necessity as a possible defense. That is sometimes what a lot of our clients attempt to or hope to raise.”

 

The right to counsel is another guaranteed by the Constitution; the recitation of the Miranda warning is a crime show staple. Oftentimes in protest cases, individuals utilize public defenders and/or attorneys who offer their services pro bono, as Gallagher does. But in Cincinnati, as recently as 1975, this was not an option.

“There wasn’t a public defender’s office in Cincinnati until the late 1970s,” said John Norwine, former executive director of the CBA. “There was the Legal Aid Society, and they had a few defense attorneys, but in 1968, Cincinnati had its worst riots ever. This was after Martin Luther King was assassinated. The bar association started getting volunteer attorneys to represent the rioters who were arrested.”

On July 26, 1976, the Hamilton County Commissioners established the Public Defender Commission. The codification of defense for the public in the bicentennial year of the country’s establishment is an uncanny (and upon reflection, on-the-nose) coincidence. The necessity of county and city entities to cooperate within the bounds of the Constitution and law is paramount.

Often waiting on the other side of protest is the word ‘riot.’ Damage to public and private property typifies riotous behavior in the context of protest. Cincinnati’s own relationship with riots specifically is charged. Those that followed in the wake of the death of Timothy Thomas in Over-the-Rhine in 2001 were called by varying media outlets the worst since the 1992 LA Riots over the beating, by police, of Rodney King.

“I was one of the lawyers who was representing people who had been mistreated or who had their rights violated by police, civil rights cases,” said Fanon Rucker, an attorney with the Cochran Firm, former judge and current Hamilton County prosecutor candidate. “As the riots went on here, I was part of the conversation with city leaders about how to stop it.”

After the riots, the Cincinnati Community Action Now Commission was formed, a multi-faceted board of community leaders and interested parties and partners to address different areas of inequality in the system. Rucker served on the Police and Justice committee. As they were this year, in 2001, curfews were wielded as a method of protest suppression.

“I led the filing of a lawsuit against the city for the unequal way they were enforcing the curfew,” said Rucker. “The reason that we pursued the class action for curfew violation had to do with the fact that there were very public stories about people in Hyde Park and Mount Adams walking around in the middle of the curfew, news cameras were showing them…and police were aware, shown driving past. And downtown, they were locking people up for curfew violations…to be so blatant as to simply allow a citywide curfew to only be enforced in certain neighborhoods had the appearance of injustice.”

The lawsuit was settled in favor of the defendants. For the nearly 300 protest defendants arrested and confined following the most recent demonstrations against the death of George Floyd, that settlement could be a harbinger for their own potential outcomes.

Gallagher is part of the Cincinnati Mass Defense Coalition, comprising several attorneys with ties to varying legal organizations in Cincinnati. On June 4, the Coalition sent a letter to Cincinnati City Council, referencing the mass arrests and confinement of protesters. Part of the letter reads as follows:

We are asking the City of Cincinnati to stand with its citizens and demand that the Police Department end all attempts to silence voices, especially through violence and mass arrests under Ohio Rev. Code 2917.13 (“Misconduct at emergency”) or any related statute. Hundreds of Cincinnati residents have been arrested without a basis for alleging any criminal act. We ask that the City of Cincinnati direct its law enforcement officers to dismiss all pending charges under R. C. 2917.13 and to stop using this statute to chill constitutionally-protected speech and assembly.

In a city council meeting on Wednesday, June 10, council members voted 7-2 to motion to urge the city solicitor to grant leniency or drop charges against those charged with violating curfew during the protests. As of print time, the cases are still pending.

 

For historical documents, including the 2002 Collaborative Agreement and MOA, and to view the full letter from the Cincinnati Mass Defense Coalition, please visit cincybar.org. Thanks to Jack Greiner for his assistance in the preparation of this article.

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