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Lawsuit: City of Cincinnati curfew violated protesters' constitutional rights

Posted at 7:16 AM, Jun 09, 2020
and last updated 2020-06-09 10:30:09-04

CINCINNATI — Mayor John Cranley's recent curfew orders -- activated and enforced by the city of Cincinnati -- violated demonstrators' right to peacefully protest, according to a recently filed federal lawsuit.

"The city of Cincinnati is unconstitutionally censoring, criminalizing and punishing the free expression of protesters," the June 3 lawsuit reads, in part. "The mayor's curfew is an unconstitutional, content-based restriction on speech."

Local attorneys filed the suit in the U.S. District Court Southwestern Ohio Cincinnati Division on behalf of two demonstrators who said they wanted to keep protesting during multiple recent rallies but did not for fear of being arrested for breaking curfew.

The lawsuit argues that Cranley's curfew orders -- which have ranged in time from 8 p.m. to 11 p.m. over the last 10 days -- violate the plaintiffs' First Amendment right to peacefully protest and their Fourteenth Amendment right to equal treatment under the law. Toward the latter point, the lawsuit states, "the curfew order exempted a laundry list of speakers who were permitted to remain in public" after hours. The "laundry list" included government officials, people experiencing homelessness, and the news media.

The suit also accuses Cranley of violating Ohio's open meetings law by issuing the order outside of a public setting with no public notice before it was issued.

A spokeswoman with Cranley's office did not immediately respond to WCPO's request for comment. A city spokesman told WCPO the administration could not comment on pending litigation.

Cranley on May 30 initially ordered a 10 p.m. curfew for the neighborhoods of The Banks, Downtown, Over-the-Rhine and West End, after protests resulted in nearly a dozen arrests and dozens of reports of vandalism to local businesses. After crowds of protesters moved from the urban core to Clifton Heights near the University of Cincinnati the next day, he pushed that curfew up to 9 p.m. and made it city-wide, in response to what he called “destruction and violence” in several areas of the city over that weekend.

The plaintiffs' fear of arrest for curfew violation in Cincinnati is not unfounded in recent days. In the first three days of peaceful demonstrations -- and, in isolated cases, subsequent vandalism -- Cincinnati law enforcement detained hundreds of protesters, many of whom were arrested and charged only with violating the city-issued curfew.

On the evening of May 31 into the early morning of June 1, the Hamilton County Justice Center was inundated with detainees to process, requiring some to be held outside or in Cincinnati Metro buses. Multiple detainees told WCPO they were made to wait outside without access to food, water or restrooms while they waited for hours to be processed, but sheriff's deputies denied these accounts.

The day following the mass arrests, Cranley urged protesters to abide by the curfew, saying he made the order on the basis of protecting demonstrators and police officers.

"Violating the curfew is dangerous... Go home. At 8 o'clock, go home," he said during a June 1 news briefing. "If you have to be somewhere, I understand. If you have to go get food, go to the doctor, if you have to go to work, I get it. But George Floyd's life is enough loss of life. We don't need officers shot; we don't need you hurt.

"This is not a joke, and if you get arrested, it will not be pleasant," he said.

One of the attorneys representing the plaintiffs, Jennifer Kinsley, is the same constitutional lawyer who filed suit against the city on behalf of two anonymous Democrat activists whose texts were included in the text messages released during the 2018 "Gang of Five" investigation into five members of City Council.

Cincinnati's was not the only local government to issue a curfew. Less than an hour following June 2 headlines that some Cincinnati protesters would take their demonstration to West Chester Township in Butler County, trustees called an emergency meeting to issue a township-wide 10 p.m. curfew effective that night.

In contrast to Cincinnati police, though, WCPD Chief Joel Herzog met with reporters minutes after the curfew was issued to say he wasn't sure if he would need to make arrests for curfew violation.

"If the crowd is calm, I'll stand there with them all night," Herzog said.

Read the full lawsuit in the viewer below.

U.S. District Court Southern Ohio Division Case 1:20-cv-00449-MWM by WCPO Web Team on Scribd