Cops Lose Immunity in Ohio Free Speech Case

welcome once again to lato's law here's steve lato i've spoken with the institute for justice lately on my channel and they are an organization to do great work they often take up causes on behalf of people who could not afford lawyers otherwise and quite often they're constitutional issues and i had a few people back in the day i'm talking about a few months ago send me a case and say steve you see this case it was decided just about a month or two ago but it's a big constitutional issue i had not talked about it on this channel yet and the other day the institute for justice said steve would you like to be a guest on our podcast and i said sure they said well what we do is we have guests pick a case that they know something about and come on and talk about it and then we discuss it amongst ourselves there's three attorneys in the podcast you'll be one of them and i said great i will do this case and it's the case of wood versus eubanks it's out of ohio it's a free speech case involving the first amendment and i have not done this yet on my channel so i discussed it on the podcast with the institute for justice and i think i discussed it there a little different than i'll discuss it here but if you get a chance go check out the podcast it should be up by now and when it goes up i'll put a link in the box below the video but this is an interesting case and i have to tell you right now i will have to censor myself heavily heavily and i'm doing it for two reasons one of which is youtube's got standards on language number two i worked in radio for 20 years and i have trained myself to not use follow language within 100 yards of a microphone i will burst into flames if i were to use these words out loud now the flaming thing might not be quite literal but the point is that i when i see these words on paper my brain says don't say that word so i'm going to have to clean this up quite a bit but you will understand what i'm saying but the story basically boils down to this a man named michael andrew wood who's the plaintiff in this case and the appellant went to a county fair in ohio wearing a shirt that said f the police and f stands for a word and on his shirt used the entire word now as i pointed out the guys the institute for justice it's also the name of a song by nwa and it's off of an album i actually bought back when i was in law school because it had a couple really good songs on it very very early rap guys but f the police was the name of a song but i don't know if that's where the term was meant to refer to on the man's shirt but he's wearing a shirt that says f the police he goes to county fair pays three bucks gets and goes to the county fair is walking around somebody sees a shirt they're bothered by it and they complain to somebody and we don't know exactly the order in which these things happen but somebody complained about the shirt and it was brought the attention of the guy who is running the county fair as well as the police so eventually the police and the executive director of the clark county fairgrounds shows up and they confront the man interestingly enough he's not wearing the shirt anymore we don't know if he changed it turn it inside out or put something over it but he's no longer wearing the shirt and the executive director of the fair and the cops walk up to him and go where's the shirt i want to see the shirt and the entire exchange is recorded on body cams because there's six cops who wind up getting involved in this story six cops and so at one point the executive director of the fair goes i want you out of here you've got to leave i'm ejecting you from the fair and he argues with him points out he goes hey look this is a public fare i paid to get in um it's taxpayer dollars it paid for the fair uh it's not your fare uh i think i should be allowed to stay and the guy goes no you can't stay you've got to leave i'm kicking you out and the police by the way are going to escort you out if you don't leave so he puts up a little bit of a protest about that and he says what about my three bucks fair director gives his money back actually flips them a five and they have a little argument about whether or not he should get changed the guy actually offered to give the two bucks back and the fair director goes no that's okay i don't want your money well so anyways they start bickering back and forth and i'm being nice and i say bickering because the language escalates it escalates so at one point in time wood says i'll be talking to my attorney about this and he says that because he said even though he'd taken the shirt off that wearing the shirt that says after police is a constitutionally protected activity and he's basically saying it's a first amendment right to say something that you have on your mind particularly when it's criticism or political in nature criticism of those in power and after police obviously is criticism of those in power so the police go you have to leave now and he asks him is that a lawful order and the discussion like i said degenerates pretty quickly because as they're walking off the property wood refers to the police officers as thugs mother efforts six bitch-ass effing pigs effing thugs f all of you you dirty rat bastards effing thief effing thugs with badges thugs with badges and literally page after page after page of insults that he's hurling at these police officers but it's important to remember that there's two things at stake here two things in question one is the shirt that had a statement on it f the police and the verbal statements this guy is saying right now and he's simply saying things like you guys are pigs you guys are thugs you guys are effing pigs you guys are ethnic thugs he's never threatening them he's never threatening anybody violence he's he's not he's not doing anything other than just insults just insults their insults okay and he he says this these things and at one point there are six police officers surrounding him six police officers and the fair director they start walking out cops go come on let's go this way and he goes no i'm out back i'm going that way so they walk into the back gate and at the back gate the fair director keeps saying i want him arrested i want him arrested arrest him arrest him charge him with something and i think at one point they even said charge him with something so they arrested him and they said they were arresting him for disorderly conduct and disturbing the peace and those two under ohio statute apparently are pretty much the same thing or they're sub parts of each other and as this court points out that you get in the federal court on a lawsuit there's gonna be both state law and federal law involved we'll get that in a second so this man they arrest him for disorderly conduct take him to the police station book them to all that stuff and then they decide not to prosecute them prosecutor looks at the case and goes there's no case here dismisses the case now they claim the case was dismissed due to a lack of witnesses [Laughter] which is the kind of thing that you look at and go you do understand you can call cops as witnesses so you've got the fair director and six cops you got seven witnesses there my friend seven witnesses who saw the whole thing unless you want to talk about the f the police shirt but is that is that really why the guy was arrested for wearing a shirt before you saw him when he wasn't wearing this shirt so they they dismissed the charges and they said then this is the quote the state was unable to locate necessarily lay witnesses to the incident in time for trial so i guess they're describing the incident as the shirts that says f the police in court the police say well we've got qualified immunity you can't sue us we're just doing our jobs we arrested a guy and because the charges were dismissed you can't just sue us because the charges were dismissed we've got qualified immunity and we've discussed qualified immunity before and the problem with qualified immunity of course is that you've got to point to a specific right you have that was violated by the police and the police should have been on notice of it due to other case law in your circuit and this is the sixth circuit which includes michigan and the interesting thing about this case is is that the court of appeals the sixth circuit says the right to not be arrested the right against false arrest is well known well established and if a police officer falsely arrests you he loses qualified immunity but the problem is that the trial court didn't see it that way the trial court dismissed the case entirely based on qualified immunity so the man goes to the fair gets arrested charges are dropped he sues the police department and the trial court says you can't sue him qualified immunity and throws it out court of appeals reinstates sends it back down and says no qualified immunity goes out the window because police should know all the things that police can get away with not knowing the one thing they should know is when you can arrest somebody that's basically job number one right police show up and they look around they investigate and the first thing they do if they think is a crime opponent is arrest somebody they should know how to make an arrest that's well established so the court says specifically the only issue is whether the officers had probable cause to arrest wood for disorderly conduct because his right to be free from arrest is clearly established if so the officers are not entitled to qualified immunity so you back up now to the facts as we know them because there were six body cameras recording everything and it's it's hilarious to read this opinion and by the way i'd recommend you read it it's only 18 pages of trust which is short for a federal appeals court opinion and they go into a discussion about what the law is in ohio on disorderly conduct and then what the elements of probable cause are with respect to constitution and the idea of disorderly conduct cannot simply be that you said something that made people uncomfortable because we do have the right to free speech in america and i've seen people holding up signs that i disagree with but they're allowed to do it because this is america and i've seen people wearing shirts i disagree with i've seen people wearing styles i disagree with that's another story and the court goes into an extremely good explanation of how this has evolved over time and came to conclusion that pretty much if we're simply talking about words that is words not coupled with a threat if i walk up to you and say i'm going to punch you in the head and i and i raised my fist like this and you complained to the police and said he raised his fist acted like he's going to punch me said i'm going to punch you in the head i wouldn't be getting arrested there for the words i spoke i'd be getting arrested there for the threat coupled with the apparent ability to carry out the threat this right here becomes the important part if i simply said i'm going to punch you in the head and i'm say 30 feet away from you it's not even a threat i can't punch you from 30 feet away and so they have to look at the words because this man never threatened anybody all he said was a series of insults and the court points out that pretty much nowadays if we're simply talking about just language just words okay somebody said something the only exception that can get you in trouble there for the most part is fighting words and trust me if i wanted to i could walk up to you get in your face and say something to you so vile and so foul that you'd want to immediately punch me without even thinking about it and most people can do that they wanted to they don't want to but they could if they wanted to where you walk up to say some somebody and you say something so evil and so mean that it's going to provoke them and so if you say something like that it's constituted it's called constituting fighting words and even there the court points out that the fighting words doctrine goes back to 1942 and then points out that the fighting words doctrine has become very limited and standards of decorum have changed dramatically since 1942 in 1942 uh what was accepted in polite society it's very different than what we accept nowadays and so the mere fact that somebody is insulting you or calling you names will not rise to the level for which you can be arrested okay just just simply saying words saying insults and so here's the thing the court points out that police officers are expected to exercise greater in response than the average citizen and that's the whole point is that you know if you're a police officer you're going to encounter people who don't like you because of your job and you might think that's not fair they don't know me i have people who say they don't like lawyers therefore they don't like me but you don't know me you know no that's okay i i knew going in before i was an attorney i remember people saying you're becoming an attorney that's too bad but the point is that if you become a cop you should know that people aren't going to like you and so just to remind you there are reams of case law on the idea that you can flip a cop off and by flipping them off i mean extending a middle finger towards him in an attempt to not provoke him but an attempt to insult him or to express your indignation whatever you want to call it and they actually say here uh we're talking about fits of rudeness or lack of gratitude may violate the golden rule but are not illegal punishable or for that matter grounds for a seizure and they refer there to a case where someone extended a middle finger to a police officer and the police officer then stopped the car of the guy and then charged him with something and guess what extending your middle finger is protected first amendment speech now here's the deal there are many people in my audience steve are you encouraging people to go flip off cops no i'm not i'm not steve have you ever flipped a cop no i have not will you ever i doubt it i doubt it and and there's a whole bunch of reasons for that but one of them is that number one i'm not that fired up against cops to do that i've done stories about cops and bad cops and so on but let's say you flip off a cop and you're in traffic and he pulls you over and spends 20 minutes asking you questions and lets you go uh you could theoretically file a complaint and possibly try to sue them and say that the guy stopped you for no reason and of course he's going to come up with a reason as to why he stopped you so that we've all heard the story you know you might beat the rap you can't beat the ride well here you can't beat the being pulled over but whether or not it's a wise thing to do i would say it's not is it illegal no no and there have been cases on that in many districts across the nation but you should know that there have been examples where people have done that in conjunction with saying something or acting in a threatening fashion so if i was face to face with a police officer and stuck my hand right in his face and did that still probably okay but then if i said something like i'm going to rip your head off well then that's a problem because it's coupled with a threat and in this case court of appeals referred to a case where somebody had actually insulted the police officer while saying i'll rip your head off and that was not considered protected speech because it was a threat coupled with the apparent ability to carry it out so it's an interesting case and one thing i do want to point out very very carefully here because there can be a lot of people in the audience who are going to jump to a conclusion and say oh this guy won his case congratulations he's a winner unfortunately he has not he has simply overcome the first hurdle so in litigation someone files a lawsuit and if it survives the litigation it goes to trial or it can settle before going to trial but the two ways you would win is if you went to trial and won or you settled on terms favorable to you so there's two good outcomes that you can have winning the case at trial or settling the case terms good to you several ways you can lose you can go to trial and lose we'll get that a second or your case can get thrown out for a variety of reasons now the most obvious reason that your case can get thrown out in a police case is qualified immunity so they got his case thrown out and trust me they were celebrating back when they got that done but it's now been reinstated by the sixth circuit court of appeals so all that means is he gets to go back to court and litigate and then go to trial so he's back to square not one but square two so he's still gotta go ahead and here is the big question i have and and this is something i am curious about let's suppose that the man says you know i'm gonna pursue my case back in court now we're gonna pursue the case and the parties get together at a settlement conference and both sides or either side says no we're not going to settle we are going to trial my friend going to trial it's a lawsuit so you're going to go to court you're going to pick a jury you're going to pick a jury of people from that area who are in that district of that federal court and they'll serve on the jury and you're going to say i was arrested at the county fair and by the way we don't have to describe anything to you we can show you the entire event filmed from six different body cameras i think all the cops have body cameras but i know there's more than one several body cameras all showing the same event matrix style from different angles and elevations okay i'm assuming some cops are taller than others so you're gonna see what happened there's no need for anyone to get up there and say well he said this and he said that and he said that i mean that's going to come out through testimony but a lot of this is simply going to be the jury watching what happened so the question i have for you and this is hypothetical is ask yourself realistically if you were sitting on a jury with a bunch of people from your neighborhood not your buddies and your pals i'm talking about your next door neighbor who might be a church-going woman it might be a heavy drinking guy if you don't know just a bunch of random people like that on a jury and they get to watch a video of a man talking to the police saying look at these thugs with badges behind me how many is there you mother efforts six bitch-ass effing pigs uh effing thugs guns don't uphold the constitution f all of you you dirty rap bastards effing thief effing thugs thugs with badges and by the way i'm leaving out three quarters of it there's much much more here there's literally paragraph and paragraph pages of this okay and i've seen videos like this on youtube of guys who are doing first amendment audits and they and they say these things to police officers and film it to show that they can do that it's great what happens when instead of being on youtube it's in front of a jury in a federal district court and the man's gonna go i was wrongfully arrested i want compensation for that there is a chance that a juror could say still a self-inflicted you did all of those things and said all of those things and yes they're constitutionally protected to say those things but when you're spewing this kind of stuff and the owner operator of the facility is saying arrest that man who's causing a disturbance the judge will instruct the jury that they didn't have the right to arrest him but the jury is going to be asked was it a wrongful arrest and if so how much are his damages and that is where i think a lot of people really miss what could happen here because a jury could look at this and go well if he'd simply been walking through the fair wearing the shirt he took the shirt off and they arrested him for that yeah that's a bad bad case to be arrested for but he's walking to the fair takes his shirt off they confront him and he starts mouthing off to him in just a stream of consciousness tirade of obscenities follow language yes it's protected and the court will tell the jury this by the way those words you might not like them but they're protected free speech but they'll still be asked what are his damages how much do you award him for this and i've seen juries my 31 years of practice i've seen juries who look at something and say okay we owe this person something but what happened to them was kind of self-inflicted therefore not going to give them as much so i would be curious and believe it or not if you said steve if you could pick an outcome for this case what would it be because it could settle where no one says the terms are we don't know if you got money he may have you might not have it could settle it could still get thrown out by a court on some other grounds okay it could get thrown out on other grounds so for instance i'll give an example in the footnote to this case the police tried to argue and say through their attorneys that we could have arrested him because he disobeyed our orders we said go out the front gate he said i'm going at the back gate and this court on appeal said it was was not raised to the trial court therefore we're not even going to go there so there's always possibilities of other arguments being raised if you said steve what would you like to see i would love to see this go to trial full-blown jury trial all the way to a verdict that's what i want to see because i'm fascinated by this case i've seen a lot of these types of cases out there and unfortunately a lot of them settle and when they settle we don't know what would have happened and so it would be nice to see one of these cases go all the way through the process to a jury verdict see who they rule for and see how much money they award if any to the plaintiff if he prevails um so we'll see and like i said it's just being sent back down now to the trial court for further proceedings so that's the case of wood versus eubanks it happened in ohio 18 page opinion i'll put a link to that also in the description below uh if you've got questions or comments fire them away otherwise talk to you later bye-bye thank you for watching leto's law the less you try to impress the more peaceful you can be

Channel: Steve Lehto

Views: 374,268

Keywords: lemon law, michigan lemon law, lemon law attorney, lemon law lawyer, http://www.lehtoslaw.com, steve lehto

Id: A071ytIO2xM

Length: 24min 0sec (1440 seconds)

Published: Fri Mar 25 2022