CINCINNATI — A Hamilton County judge agreed on Wednesday to release Rashaan Davis, a 26-year-old Cincinnati man who had been arrested after livestreaming an apparent block party in Over-the-Rhine, and dismiss the less serious of two charges filed against him. Davis will reappear in court April 21 to face a felony count of inciting violence; his misdemeanor for breaking the Ohio Department of Health's "stay-at-home" order will be dropped.
Cincinnati Mayor John Cranley said in an afternoon news conference the county had decided to focus its efforts on the felony charge, which accuses Davis of encouraging others to riot.
"Based on what I saw and what I was told by police, it was warranted," he said of the arrest. "He was putting lives in danger. It's not about, 'This is my life and if I want to put my life at risk, why should anybody care?' We have to enforce it, and we will."
Defense attorney Clyde Bennett II argued Davis had been practicing constitutionally protected First Amendment speech when he streamed the gathering, and that he had been unfairly targeted for arrest while others who publicly broke quarantine were not.
“It really constituted of selective enforcement of the law," Bennett told WCPO. "There were other individuals in our community that had committed the same criminal conduct, yet they were not charged.”
A recording of the April 3 gathering, which was later reposted from Facebook to YouTube, shows groups of people drinking and dancing in close proximity on Liberty Street. Davis moves between clusters and frequently addresses the camera directly, more than once appealing to the viral shock-video aggregator WorldStarHipHop to pick up the story.
“This is how we do it in my city,” he says at one point. “We don’t give a f*** about corona. This is how we celebrate our coronavirus.”
Davis would be arrested April 4 and charged with breaking the stay-at-home order as well as felony incitement to violence.
The widely publicized video generated equally widespread rebuke, much of it from city officials.
"Videos of our people defying the state-at-home order and social distancing recommendation pisses me off for several reasons," wrote Councilman Jeff Pastor on Facebook the day of Davis's arrest. "Chief among those reasons, it’s selfish and potentially harmful to those whose immune systems are compromised."
In a 58-page court filing, Bennett and two local constitutional lawyers argued that Davis did not violate the stay-at-home order because First Amendment speech and assembly are protected as “essential” tasks for which Ohioans may legally gather during quarantine.
They pointed to other Ohio groups that have gathered in public, including the #OpenOhio protesters who appeared in Columbus to demand the state relax its restrictions on public life.
“There was 20 or 30 white individuals that were gathered protesting Gov. DeWine’s press conference. They were outside. They were violating the six feet distance rule. Some of them were armed, violent rhetoric and banter … in fact Gov. DeWine said they had a right to say those things because of the First Amendment," Bennett said.
His filing also referenced the congregants who continue to attend in-person services at Solid Rock Church near Monroe, but have not faced legal reprisal in their counties because of clear First Amendment concerns.
“In contrast to videos from Italy and other European countries depicting balcony singing sessions and group exercise routines, the video attributed to Rashaan documents the impact of coronavirus on urban America,” the filing reads in part. “It expresses joy, celebration and a resilience of spirit in the wake of global death and suffering. … Moreover, the video was clearly intended to be communicative and to inform the public. The man in the video express an intent for the video to go viral (pun intended) and for the video to garner views on the internet.”
Davis could still receive up to two years of jail time for the felony charge. Next, Davis will appear before a grand jury, who will decide whether to indict him on that charge.