Demonstrations and Free Speech

  1. Cleveland, Ohio Municipal Code §§623.13-14 (outlawing political signs on public property); 559.30 (outlawing other signs, advertisements, or sign-supporting infrastructure on public property).
  2. Cf Saieg v. City of Dearborn, 641 F.3d 727 (6th Cir. 2011) (using intermediate scrutiny, the Court invalidated a city ordinance that prohibited pedestrian leafleting, while allowing pedestrian traffic, during the Arab Street Festival); see also McIntyre v. Ohio Elections Com’n, 514 U.S. 334 (1995) (using “exacting scrutiny,” the Court invalidated an ordinance that prohibited anonymous political leafleting around election information).
  3. Cleveland, Ohio Municipal Code §613.11-12
  4. There is no binding law on the chalk issue. Elsewhere, courts are split. The D.C. Circuit has held the application of a “defacing public property” ordinance to chalk drawing is a reasonable time, place, and manner restriction. Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011). Other courts have found that a property defacement ordinance cannot restrict chalk drawing. See Mackinney v. Nielsen, 69 F.3d 1002 (9th Cir. 1995); Jackson v. Williams, No. 10-cv-14985, 2013 WL 150032 (E.D. Mich. Jan. 14, 2013).
  5. Cleveland, Ohio Municipal Code §683.01-04. Without a permit, it is a risk to use amplified sound. To apply for a permit for a sound amplifier attached to a car, contact the Department of Assessments and Licenses at (216) 664-2264. The permit costs $50/year, and each specific use requires an additional permit at a $10 fee.
  6. See R.C. 2921.29 (failure to identify name, address, and birth date to police). See Dayton v. Esrati, 125 Ohio App.3d 60, 707 N.E.2d 1140 (2nd Dist. 1997).(the 2nd District of Ohio held that wearing a ninja mask as part of a protest effort at a city council meeting was protected speech).
  7. The Ohio Supreme Court upheld a Cleveland ordinance banning people from Public Square between 10:00pm and 5:00am during the Occupy protests, under the U.S. Constitution. Cleveland v. McCardle, 139 Ohio St.3d 414, 2014-Ohio-2140, 12 N.E.3d 1169, ¶ 28.
  8. Id. at ¶ 23, (J. Lanzinger, for the majority, noting the protestors should have moved the event to the surrounding sidewalks during the night); see also Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
  9. Although courts have held sleeping can count as protected expression, time, place, and manner regulations will usually be upheld when they restrict sidewalk sleeping. See generally Sarah Kunstler, The Right to Occupy: Occupy Wall Street and the First Amendment, 39 Fordham Urb. L.J. 989 (May 2012). Cf Cleveland, Ohio Municipal Code §507.06.
  10. Cleveland, Ohio Municipal Code §3123.09 (tents may not remain for more than 30 days, and require a permit).

Surveillance and Monitoring Technologies

  1. Police may search a home without a warrant under exigent circumstances, including if someone is in danger, if the destruction of evidence is imminent, and if there is a public emergency. See, e.g., Bringham City, Utah v. Stuart, 547 U.S. 398, 403-404 (1943). Additionally, police are permitted to enter a home or they have a legal reason to be there, anything in plain view becomes evidence. See, e.g., Kentucky v. King, 563 U.S. 452.
  2. See New York. v. Burger, 482 U.S. 691 (1987); see also City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (each holding that the administrative search exception to the Fourth Amendment warrant requirement does not apply when the “primary purpose” of the search was to investigate other criminal behavior). See New York. v. Burger, 482 U.S. 691 (1987); see also City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (each holding that the administrative search exception to the Fourth Amendment warrant requirement does not apply when the “primary purpose” of the search was to investigate other criminal behavior). Once an officer is lawfully in an area, anything the officer can see that looks like it could be evidence of a crime can be seized.
  3. See Indigo Room, Inc. v. City of Fort Myers, 598 Fed.Appx.938 (11th Cir. 2014) (upholding repeated underage liquor raids of a nightclub as valid administrative searches, when plaintiff-owner was affiliated with Occupy and held meetings at the establishment).
  4. Ohio Rev. Code §109.5721.
  5. Ohio Rev. Code §109.60.
  6. Id.
  7. State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426 (holding that warrantless search of cell phone data is unconstitutional absent exigent circumstances); see also Riley v. California, 134 S.Ct. 2473 (2014) (confirming that a warrantless search of cell phone data violates the U.S. Constitution).
  8. See Cleveland, Ohio Municipal Code §§625.08(b)(6) (governing criminal tools) and 605.011 (inciting a riot).
  9. See, e.g., U.S. v. Skinner, 690 F.3d 772 (6th Cir. 2012) (holding that location and number tracking using cell-site data was constitutional under the Fourth Amendment; citing U.S. v. Knotts, 460 U.S. 276 (1983)).
  10. U.S. Dep’t of Justice, Policy Guidance: Use of Cell Site Simulator Technology, Sept. 3, 2015.

Police Encounters and Arrests

  1. The City has published specific guidance for how a dispersal order must look and how police must deliver it, available at https://assets.documentcloud.org/documents/2510912/dispersal-order.pdf.  The Cleveland Police have also created guidelines for handling mass arrests. See Mark Naymik, Cleveland sets new ‘mass arrest’ protocol for protesters; plans to buy protest insurance for RNC convention, Plain Dealer (Aug. 6, 2015, 5:19 p.m.), http://www.cleveland.com/naymik/index.ssf/2015/08/cleveland_sets_new_mass_arrest.html.
  2. Ohio Rev. Code §2921.33.
  3. Id.
  4. Kris Hermes, Crashing the Party: Legacies and Lessons from the RNC 2000 (PM Press 2015).
  5. Compare Thomas v. Plummer, Nos. 11-3165, 11-3181, 2012 WL 2987007 (6th Cir. 2012) (holding use of a Taser against an arrestee who was already in a submissive position was excessive force, even though she had previously been resisting arrest for a “non-serious offense”) with Saucier v. Katz, 533 U.S. 194 (2001) (holding, in part, that police dragging a demonstrator across a parking lot and forcing him into a van was reasonable).
  6. See City of Cleveland v. Kristoff, 8th District., Cuyahoga No. 80086, 2002-Ohio-1265 (holding a city ordinance that mirrored R.C. §2921.31 regarding obstruction and resisting arrest was only constitutionally applied to warning an arrestee of her rights if done with the “specific purpose to obstruct” police activity) ; see also Patrizi v. Huff, 690 F.3d 459 (6th Cir. 2012) (affirming Ohio state law that advising an arrestee of her rights is protected speech unless it rises to aggressive conduct, persistently repeated after police warnings).
  7. Crawford v. Geiger, 996 F.Supp.2d 603, 615 (N.D.Ohio 2014). The District Court found that as a matter of first impression in the Sixth Circuit, “there is a First Amendment right to openly film police officers carrying out their duties.” The court further held this right is clearly established for immunity purposes in §1983 actions.
  8. See, e.g., Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3rd Cir. 2010) (holding an arrestee does not have a clearly established right to film his arresting officer during a traffic arrest).
  9. See Ohio Rev. Code §2933.51-52 (Ohio wiretapping prohibitions do not protect public conversations, or conversations where the recorder is a party or has been granted permission by a party).
  10. Ohio Rev. Code §2921.29.

Militarization of Police

  1. See, e.g., Nadia Kayyali, Dissent in the era of militarized policing, National Lawyers Guild Blog (Jan. 23, 2013) https://www.nlg.org/news/blog/dissent-era-militarized-policing
  2. Id.; see also Nadia Prupis, National Lawyers Guild challenges NYPD on use of sound cannons against peaceful protesters, Common Dreams (Dec. 15, 2014) http://www.commondreams.org/news/2014/12/15/national-lawyers-guild-challenges-nypd-use-sound-cannons-against-peaceful-protesters; Kris Hermes, Crashing the Party: Legacies and Lessons from the RNC 2000, (PM Press 2015); American Civil Liberties Union, War Comes Home: The Excessive Militarization of American Policing (June 2014) https://www.aclu.org/report/war-comes-home-excessive-militarization-american-police
  3. Alex Johnson, Obama: U.S. cracking down on ‘militarization’ of local police, NBC (May 18, 2015, 7:23 PM) http://www.nbcnews.com/news/us-news/u-s-cracking-down-militarization-local-police-n360381
  4. City of Pittsburgh Settles G-20 Lawsuits, American Civil Liberties Union of Pennsylvania (Nov. 14, 2012) http://www.aclupa.org/news/2012/11/14/city-pittsburgh-settles-g-20-lawsuits
  5. American Civil Liberties Union, War Comes Home: The Excessive Militarization of American Policing (June 2014) https://www.aclu.org/report/war-comes-home-excessive-militarization-american-police
  6. Id.

FAA Regulations

  1. The FAA has exclusive authority to regulate airspace anywhere in the U.S. See 49 U.S.C. § 40103
  2. 14 C.F.R. §91.137-139
  3. 14 C.F.R. §§99.7, 91.141
  4. Id.
  5. Though air regulations passed under certain regulatory provisions contain explicit allowances for vetted media, TFR’s issued based on national security, special security, or presidential security do not contain these allowances.
  6. See, e.g., 2012 TFR and 2008 TFR.
  7. Id.
  8. See, e.g., Fed. Aviation Admin., Flight Advisory National Special Security Event Democratic National Convention Charlotte, North Carolina September 3-6 2012 (hereinafter “2012 TFR”); Fed. Aviation Admin., Flight Advisory National Special Security Event Democratic National Convention August 25-28, 2008 (hereinafter “2008 TFR”).
  9. See Lisa Buie, Small airports brace for restrictions because of Republican National Convention, Tampa Bay Times, (Aug. 8, 2012, 5:07 PM) http://www.tampabay.com/news/business/airlines/small-airports-brace-for-restrictions-because-of-republican-national/1244873; see also 2012 TFR.

 

Police Infiltration

  1. See Kris Hermes, Crashing the Party: Legacies and Lessons from the RNC 2000, 123-150 (PM Press 2015)
  2. See, e.g., Peter Harman, Protest group outs undercover officer, accuses her of infiltrating group, The Washington Post (Aug. 7, 2013) https://www.washingtonpost.com/local/protest-group-outs-undercover-officer-accuses-her-of-infiltrating-group/2013/08/07/a038aa76-ff6d-11e2-9a3e-916de805f65d_story.html; Matt Apuzzo and Adam Goldman NYPD infiltrated liberal political groups, according to new documents, Associated Press (May 23, 2012 8:41 AM) http://www.huffingtonpost.com/2012/03/23/nypd-infiltrated-liberal-politi...
  3. See generally Eda Katharine Tinto, Undercover Policing, Overstated Culpability, 43 Cardozo L. Rev. 1401 (Apr. 2013); Jacqueline E. Ross, Undercover Policing and the Shifting Terms of Scholarly Debate: The United States and Europe in Counterpoint, 4 Ann. Rev. L. & Soc. Sci 239 (2008)
  4. The Due Process guarantee can provide a defense to entrapment and similar undercover tactics in certain circumstances. Typically, a defendant must show the government’s conduct was “outrageous, and the defense will fail if the government can show the individual was predisposed to criminal activity in any event. Not only are these showings difficult, the defenses are likely unavailable in the Sixth Circuit. See U.S. v. Guest, 564 F.3d 777 (6th Cir. 2009) (finding that sentencing entrapment and manipulation are unavailable in the circuit, and holding that even if they are, defendant failed to make the proper showing).
  5. See Arun Gupta, Cleveland Occupy arrests are the latest in FBI’s pattern of manipulation, The Guardian (May 28, 2012 8:35 PM) http://www.theguardian.com/commentisfree/cifamerica/2012/may/28/cleveland-occupy-arrests-fbi-manipulation
  6. Id.
  7. Id.; see also David Ariosto, 5 arrested in alleged plot to blow up Cleveland-area bridge, CNN (May 1, 2012 3:38 PM) http://www.cnn.com/2012/05/01/justice/ohio-bridge-arrests/
  8. See Rick Perlstein, How FBI entrapment is inventing ‘terrorists’ – and letting bad guys off the hook, Rolling Stone (May 15, 2012) http://www.rollingstone.com/politics/news/how-fbi-entrapment-is-inventing-terrorists-and-letting-bad-guys-off-the-hook-20120515

Search & Seizure—A Fourth Amendment Primer

  1. See Beck v. State of Ohio, 379 U.S. 89, 91 (1964).
  2. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure §3.3, at 140 (2d ed. 1992).
  3. See generally U.S. v. Mendenhall, 446 U.S. 544 (1980).
  4. Weeks v. United States, 232 U.S. 383, 392 (1914).
  5. Arizona v. Gant, 556 U.S. 332, 339 (2009).
  6. Colorado v. Bertine, 479 U.S. 367 (1987).
  7. California v. Acevedo, 500 U.S. 565 (1991); see also Carroll v. U.S., 267 U.S. 132 (1925).
  8. Terry v. Ohio, 392 U.S. 1 (1968).
  9. Minnesota v. Dickerson, 508 U.S. 366 (1993).
  10. Michigan v. Long, 463 U.S. 1032, 1049 (1983).
  11. U.S. v. Matlock, 415 U.S. 164 (1974); Schneckloth v. Bustamonte, 412 U.S. 218 (1983).
  12. Schneckloth v. Bustamonte, 412 U.S. 218 (1983).
  13. Arizona v. Hicks, 480 U.S. 321 (1987).
  14. See Bringham City, Utah v. Stuart, 547 U.S. 398 (2006).

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