974 N.E.2d 217 (Ohio Com.Pl. 2012), 2011 CRB 37727, City of Cleveland v. Brooks

Docket Nº:2011 CRB 37727.
Citation:974 N.E.2d 217
Opinion Judge:ZONE, JOSEPH J., Judge.
Party Name:CITY OF CLEVELAND, Plaintiff v. Christopher BROOKS, Defendant.
Attorney:Christina E. Haselberger, Assistant Prosecutor, for the City of Cleveland. Gordon S. Friedman, Cleveland, for defendant.
Case Date:May 09, 2012
Court:Municipal Court of Ohio

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974 N.E.2d 217 (Ohio Com.Pl. 2012)



Christopher BROOKS, Defendant.

No. 2011 CRB 37727.

Cleveland Municipal Court, Ohio.

May 9, 2012

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Christina E. Haselberger, Assistant Prosecutor, for the City of Cleveland.

Gordon S. Friedman, Cleveland, for defendant.


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.


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,

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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)...

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