From Ohio Courtroom of Appeals Decide Robert Hendrickson’s opinion Monday in Ehlers v. Thomas, joined by Judges Stephen Powell and Matthew Byrne:
Ehlers is the director of the Montgomery County Coroner’s Workplace (“MCCO”). In August of 2022, Appellants made public information requests to the MCCO concerning the deaths of, amongst different people, Casey Pitzer and Marvin Napier. Appellants imagine these deaths have been a part of a coverup by the MCCO and different authorities entities. Pitzer and Napier have been autopsied on the MCCO.
Appellants largely communicated with Ehlers through her work e mail. Over time, the emails despatched to Ehlers grew extra quite a few and confrontational. Some emails contained threats of felony prices, “authorized warfare,” and web smear campaigns if the information Appellants desired weren’t turned over to them. Nevertheless, one e mail from Petry additionally contained post-mortem images in addition to footage of Ehlers’ household taken from social media. The e-mail requested, “[W]hat if it was your daughter?” The e-mail continued:
If we do not get the information instantly. I am [sic] placing you and each picture I can discover of you everywhere in the web as one of many MURDER COVER UP docs * * * Your loved ones can be crushed and embarrassed. * * *
It is not going to be proper of you to permit your loved ones to be put on the market like that. However the reality is, the extra you ignore us, the angrier we get. As any mum or dad would. I hope to listen to from you by the top of the day. If not, I am going to begin sending you the TRUE web posts I create about you. * * *
Thomas, in flip, said in a single e mail that due to the alleged actions of Ehlers and others, all the world, “WILL KNOW WHY PEOPLE BURN OUR FYCKING [sic] CITIES AND HAVE NO RESPECT FOR LAW ENFORCEMENT!! THEY’RE LIARS AND AID IN MURDERS.” At one level, Thomas tried to “good friend” Ehlers on Fb and despatched her a message which said, “I see you are a hometown Clinton County Resident!! * * * this could possibly be good or dangerous. I hope good, I actually do, FYI my good friend is employed by NCIS. I served with him within the Marines. We’ll catch Casey’s killer!!” The above are simply a number of the many communications that Appellants despatched to Ehlers.
On February 24, 2023, Appellants personally went to the MCCO in an try and obtain information. Ehlers was not there that day. Appellants’ interplay with different staff on the MCCO grew to become very contentious, however non-violent. Appellants have been finally escorted from the MCCO by Dayton Police. The Justice of the Peace’s resolution granting the CSPO, mentioned additional beneath, said it gave little weight to this incident.
Ehlers later filed for a CSPO in opposition to Appellants and was granted an ex parte CSPO the identical day. A listening to was later held. Ehlers was represented by counsel, and Appellants appeared professional se.
The Justice of the Peace discovered that Appellants “knowingly engaged in a sample of conduct that triggered [Ehlers] to imagine that [Appellants would] trigger bodily hurt or trigger or [have caused] psychological misery” and issued a CSPO. The CSPO ordered that Appellants “shall not make any further posts on-line which particularly identify petitioner,” and it additionally prohibited Appellants from possessing any lethal weapons, together with firearms. The time period of the CSPO is 5 years.
The court docket concluded—appropriately, I believe—that the CSPO violated the First Modification, citing Bey v. Rasawehr (Ohio 2020) (a case through which I had the pleasure of arguing on behalf of amici):
[T]he CSPO’s order that Appellants delete and never put up any social media movies and posts which “particularly identify” Ehler “essentially considerations the subject material of the speech [and] ‘can’t be justified irrespective of the content material of the prohibited communication.'” Acknowledged in another way, the restriction “requires an examination of its content material, i.e., the individual(s) being mentioned, to find out whether or not a violation has occurred and is worried with undesirable results that come up from the direct affect of speech on its viewers or [l]isteners’ reactions to speech …” …
[T]he trial court docket on this case didn’t decide whether or not Appellant’s speech fell into one of many classes of speech able to being restricted earlier than ordering a previous restraint on Appellants’ speech. Even when it had, the CSPO’s blanket prohibition on utilizing Ehler’s identify is just not the least restrictive means by which to guard Ehlers. We’ll assume for the sake of argument … that “defending civil-stalking victims from worry of imminent bodily hurt or psychological misery” is a compelling state curiosity…. [But] the restriction … prevents use of Ehler’s identify in all contexts, together with, presumably, the one motive Appellants would speak about Ehlers in any respect—in reference to the underlying details of this case. Subsequently, we discover these restrictions demonstrably overbroad.
Ehlers argues the order is “tailor-made solely to guard [her] and her household,” however the CSPO gives no safety to Ehlers (or her household by oblique extension) exterior of not being straight named in any of Appellants’ posts, whatever the topic. We see no compelling state curiosity in offering Ehlers, a public official, with such anonymity. Whereas public officers are nonetheless entitled to the safety of the legislation, they might at all times be the topic of direct remark and criticism…. [W]hile the “CSPOs issued right here undoubtedly sought to offer some measure of aid to [Ehlers] for the psychological misery [she and her family] skilled due to [Appellant’s] public accusations … the means chosen to offer that aid … went far past something that the factual document earlier than us can maintain and the First Modification can tolerate.” …
And the court docket vacated the weapons restriction:
[A] weapon restriction that “lacks a ample nexus with the conduct the trial court docket was trying to stop …” is an unconstitutional restraint on a person’s Second Modification proper to bear arms. Equally, our sister courts discovered weapons restrictions in a CSPO to be inappropriate “the place no proof is offered that the respondent used or threatened to make use of a lethal weapon to hurt the petitioner.”
On this case, Appellants’ communications with Ehlers are actually troubling in a number of respects: (1) juxtaposing ugly post-mortem images with images of Ehler’s household and asking “[W]hat if it was your daughter?”; (2) threatening to “expose” Ehlers and her household over the web to be “crushed” and “put on the market like that” for all the world to see and develop offended with; (3) asserting alleged actions like Ehlers’ are why folks “burn our fycking [sic] cities and haven’t any respect for legislation enforcement!!”; and (4) monitoring down Ehlers’ private Fb web page, trying to good friend her, commenting on the place she lived, and asserting that Thomas and his good friend with the NCIS, each former marines, would catch Casey Pitzer’s alleged killer.
Nevertheless, …. [w]hile the trial court docket’s prohibition of lethal weapons probably sought to stop any lethal escalation of this antagonistic battle, it’s clear the restriction doesn’t have a ample nexus to Appellants’ conduct as a result of there is no such thing as a proof that Appellants used or threatened to make use of a firearm to hurt Ehlers or anybody else concerned on this case.
I am undecided the road the court docket provides is sort of proper: As an example, I am undecided whether or not the road ought to activate whether or not the defendant had used a lethal weapon, versus having used lethal or in any other case severe pressure. However basically, I agree that there have to be some substantial displaying of dangerousness earlier than a civil restraining order can constitutionally ban gun possession.
Matt Miller (Barron, Peck, Bennie & Schlemmer, Co., LPA) represented appellants.
