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Court Holds Free Speech Rights Not Infringed When Police Arrested ‘Chief Wahoo’ Effigy Burners

2003-1202. Bellecourt v. Cleveland, 2004-Ohio-6551.
Cuyahoga App. No. 80193, 152 Ohio App.3d 687, 2003-Ohio-2468. Judgment reversed.
Resnick, F.E. Sweeney, Lundberg Stratton and O'Connor, JJ., concur.
O'Donnell, J., concurs in judgment only.
Moyer, C.J., dissents.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2004/2004-Ohio-6551.pdf

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(Dec. 15, 2004) In a 5-2 decision announced today, the Supreme Court of Ohio ruled that Cleveland police did not violate the First Amendment rights of protesters by arresting them after gusty winds began blowing flaming debris from a burning effigy of Cleveland Indians trademark “Chief Wahoo” in the direction of the protesters and other bystanders outside Jacobs Field.

The Court's opinion, authored by Justice Maureen O'Connor, held that officers were acting within their duty to protect public safety when they extinguished the windblown remains of two burning effigies and placed demonstrators Vernon Bellecourt, Juan Reyna, James Watson, Charlene Teters and Zizwe Tchiquka under arrest.

The arrestees were part of a larger group that gathered outside the stadium on opening day of the 1998 baseball season to hand out literature and hold up signs and banners protesting the baseball team's continuing use of a grinning, stylized caricature of a native American as its corporate logo. The arrested protesters were booked and jailed for aggravated arson. They were not formally charged and were released the next day. The protesters subsequently filed a civil lawsuit against police and the City of Cleveland in the Cuyahoga County Court of Common Pleas. They alleged that their First Amendment rights had been violated and that the city had also violated §1983 of the Civil Rights Act by improperly placing them under arrest and failing to properly train safety forces to respond to constitutionally protected free speech activity like the burning of effigies.

The trial court issued a summary judgment in favor of the arresting officers, and later granted a motion for a directed verdict denying the protesters' claims against the police chief and the city. The protesters appealed. In May 2003, the 8th District Court of Appeals, in a 2-1 decision, affirmed the directed verdict in favor of the police chief but reversed the judgment in favor of the city and remanded that claim to the trial court for further proceedings. The city appealed the 8th District's ruling to the Supreme Court, which agreed to hear the case.

Writing for the Court in today's decision, Justice O'Connor cited a 1968 U.S. Supreme Court decision, United States v. O'Brien , which held that, “(w)hen speech and nonspeech elements are part of the same course of conduct ‘a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations of First Amendment freedoms.'”

In this case, she wrote “(i)in the judgment of Cleveland's police officers, the windy conditions coupled with the spraying of additional accelerant on the already burning effigies created a hazard, which was their responsibility to remedy. Though (the protesters) emphasize that they set the fire in a cordoned area devoid of flammable property, the police were obligated to protect the public, including the protesters themselves.”

Noting that a live videotape of the incident was part of the record provided to the justices for review, Justice O'Connor said the tape “shows a protester spraying accelerant on a burning effigy and then retreating from the rapidly growing fire before burning pieces of the disintegrating effigy began floating in the wind and landing in the proximity of the protesters. These facts implicate Cleveland 's asserted interest in public safety.”

In light of that finding, Justice O'Connor went on to reject the protesters' argument that, even if public safety was an issue, the city should still be held liable for infringing their civil rights because officers, who knew the protest was planned and were standing by with fire extinguishers, failed to warn them of the perceived safety threat or that setting fire to the effigies under the existing conditions would subject them to arrest. She also rejected a claim that officers could and should have responded to any safety threat raised by the protesters' free-speech activity by less-restrictive means than arresting them.

“The success of (the protesters') argument depends on the applicability of strict scrutiny, the highest level of constitutional analysis. Here, however, our analysis is based on O'Brien's relatively lenient standard … ” wrote Justice O'Connor. “In Ward v. Rock Against Racism (1989), the (U.S.) Supreme Court rejected the ‘less restrictive means' argument as inapplicable to O'Brien's test … The Ward court (held that) ‘… a regulation of the time, place or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so.'”

“The record demonstrates that Cleveland arrested (the protesters) not because they burned effigies, but because of a perceived public safety threat in the manner in which they burned the effigies,” Justice O'Connor concluded. “Under the facts before us, we determine that the arrests were narrowly tailored to Cleveland 's asserted interest in preserving public safety.”

Justice O'Connor's opinion was joined by Justices Alice Robie Resnick, Francis E. Sweeney Sr. and Evelyn Lundberg Stratton. Justice Terrence O'Donnell concurred in judgment only. Chief Justice Thomas J. Moyer and Justice Paul E. Pfeifer entered separate dissenting opinions.

Chief Justice Moyer pointed out that the arson statute under which the protesters were arrested specifically addresses fires that threaten “any person other than the offender” or “any occupied structure.” In the absence of evidence that a structure or any person other than the protesters was placed in danger, he wrote, “the city had no authority to arrest appellees based on (the arson statute), and the arrests interfered with their freedom of expression guaranteed by the First Amendment.”

Noting that the protesters offered evidence that they had previously been arrested by city police for burning effigies near Jacobs Fields, and that the city admitted it had conducted no special training to educate officers on responding to symbolic burnings in a fire-safe, barricaded area, the Chief Justice said he would uphold the court of appeals' ruling ordering the trial court to reopen the civil suit and allow the protesters to argue their case to a jury.

Justice Pfeifer also found that the absence of any evidence that persons other than the protesters were placed in danger undermined the city's public safety grounds for restricting the protesters' right to conduct a symbolic public burning in a safe location. “If we allow flag burning in this country, we should certainly allow Chief Wahoo effigy burning,” he added. “Our flag stands for over 200 years of freedom and unity; Chief Wahoo stands for 56 years (and counting) of baseball futility.”

Thomas J. Kaiser, 216.664.2852, for the City of Cleveland.

Terry H. Gilbert, 216.241.1430, for Vernon Bellecourt, et. al.