Facts
In 2016, Michael Woods attended the Clark County Fair while wearing a “fuck the police” shirt. He was approached by a county fair board member and six Clark County Sheriff’s deputies and ultimately asked to leave. As Mr. Wood complied with the order to leave, he repeatedly used profanity and made comments about and to the officers escorting him. Before reaching the fairgrounds exit, he was arrested for disorderly conduct.
The prosecutor dropped the charges due to a lack of evidence, and Mr. Wood filed a pro se lawsuit against the officers in the U.S. District Court for the Southern District of Ohio, alleging his arrest was unlawful because —among other things—it retaliated against him for exercising his constitutionally protected right to criticize the police. Following discovery, the defendants moved for summary judgment. Despite a favorable Report and Recommendation from the magistrate judge, which recommended denial of the defendants’ motion on at least part of his case, the District Court (Judge Rose) ruled against Mr. Wood on his First and Fourth Amendment claims. Mr. Wood appealed to the Sixth Circuit, where he is represented by the Dinkler Law Office. The appellate brief was filed in September of 2020; the defendant-appellees have not yet filed their opposition. Mr. Wood’s counsel sought amicus support from the ACLU of Ohio.
Legal Theory
The District Court’s Order found that Mr. Wood’s profanity directed at the officers constituted probable cause to arrest him for disorderly conduct under Ohio law. But probable cause for a charge of disorderly conduct cannot exist when the underlying speech is constitutionally protected; so, lacking probable cause, the arrest violated the First Amendment. The District Court focused on the state disorderly conduct law, and failed to apply controlling First Amendment precedent from federal courts. That precedent establishes that even profane “coarse criticism” directed to police officers is constitutionally protected speech. Police are trained and expected not to respond to mere insults with violence, and so such speech is not subject to the “fighting words” or any other exception to First Amendment protection.
Status
Appellants’ counsel did not solicit our involvement until after the ordinary deadline for submission of amicus briefs to support their client. Appellees had not yet filed their brief, however, and their counsel did not object to our filing out of time. The parties jointly moved for an extension to allow us time to prepare and submit the amicus brief, after which the Appellees have time to respond. We filed our amicus brief on March 12, 2021. Appellees declared they had no response to our proposed filing and filed their brief on the merits on April 2. Appellants filed their reply on May 14. Oral argument was originally scheduled for July 28 but has been repeatedly rescheduled. On October 12, Appellees filed a 28(j) Notice of Supplemental Authority regarding an Ohio Supreme Court case, State v. Staley, 2021-Ohio-3086, where the Appellee’s behavior and use of invective at a public playground together constituted “fighting words.” Oral argument was held on November 2, 2021. On February 8, 2022, the Court reversed the district court’s summary judgment and remanded the case in an opinion finding that Mr. Wood’s conduct at the Clark County Fair was protected by the First Amendment and that the defendant officers are not entitled to qualified immunity for Mr. Wood’s claims of unlawful arrest and retaliation for protected expression. On February 22, the defendant officers filed a petition for review en banc by the full Sixth Circuit. The petition was denied on March 11, 2022.
