Cleveland Mayor Frank Jackson
Ohio 8th District Court of Appeals Judge Patricia Ann Blackmon
Ken Silliman, Chief of Staff for Cleveland Mayor Frank Jackson
U.S. Rep. Dennis Kucinich (D-OH)
Leatrice Tolls of Occupy Cleveland
Erin McCardle of Occupy Cleveland
Occupy Cleveland protesters at a rally in front of Cleveland City Hall
(Photo by www.cleveland.com)
By Kathy Wray Coleman, Publisher, Editor-n-Chief, Cleveland Urban News. Com and The Cleveland Urban News.Com Blog, Ohio's Most Read Online Black Newspaper(www.clevelandurbannews.com)
CLEVELAND,Ohio- A three-judge-panel of the Ohio 8th District Court of Appeals has ruled a ban by Cleveland Mayor Frank Jackson and the City of Cleveland through a city ordinance passed by Cleveland City Council that precluded Occupy Cleveland and others from protesting on Public Square without a permit between what the ordinance calls the curfew hours of 10 p.m. and 5 a.m. an unconstitutional violation of the protesters rights to free speech and freedom of assembly under the First Amendment of the U.S. Constitution. And the state appellate court for Cuyahoga County reversed the misdemeanor curfew violation convictions of Occupy Cleveland Members Leatrice Tolls and Erin McCardle in the same decision, which was released on Dec 6 and is written by Ohio 8th District Court of Appeals Judge Patricia Ann Blackmon with appeals judges Frank D. Celebreze Jr. and James J. Sweeney concurring.
"We conclude that the activity of the Occupy Cleveland group,
including the appellants, was speech-related activity and is protected under the First Amendment. The First Amendment provides in part that Congress shall make no law abridging freedom of speech," wrote Blackmon in a 16 page opinion for the court. "The appellants [McCardle and Tolls] were engaged in peaceful speech-related activity at the Tom L. Johnson public park. The appellants should not have been required to obtain permission to use the park."
Jackson did not return phone calls seeking comment on whether the city will ask the Ohio Supreme Court to hear the case via the filing of a memorandum in support of jurisdiction within the required 45 days time frame after the appellate decision at issue has been journalized. But interim city law director Barbara Langhenry said in a press release that "we are investigating our next steps."
Tolls, 47, and McCardle,24,, like the other members or former members of Occupy Cleveland, are not at all shy.
"I look forward to my day in court to see why the City of Cleveland and Mayor Frank Jackson think it is okay to deny me my constitutional right to peacefully assemble and to air grievances about our corrupt government in the free speech quadrant of Public Square," said Tolls in an interview with Cleveland Urban News.Com for a previously published article.
The city ordinance at issue was on the books before Occupy Cleveland hit town, an indication that its presence served some good in taking on the adoption of unconstitutional city ordinances by the 19-member Cleveland City Council, nine members of whom or Black that represent most of the wards on the city's majority Black east side, though Cleveland Ward 3 Councilman Joe Cimperman, who is White, represents the downtown Cleveland area where Public Square is located.
The two defendants, or what is termed appellants on appeal, whose cases were consolidated and who did not get jail time from the trial court judge who stayed the guilty judgment pending the outcome of the appeal, are represented by J. Michael Murray and Steven D. Shafron of the law firm of Berkman, Gordon, Murray and DeVan.
Blackmon also said that the claim by the Jackson administration and Langhenry that violating free speech in public venues of Cleveland is okay because the protesting and camping by Occupy Cleveland on Public Square was an inconvenience is unfounded, and a smokescreen to arrogantly trample upon the free speech rights of protesters.
"When balancing the City’s need to clean the park with the right of appellants to engage in a communicative activity, the latter should always prevail," Blackmon's opinion reads. "Consequently, we believe the City’s law targets and eliminates more than the evil it seeks to remedy, which it claims is convenience and sanitation. "
The appeal was prosecuted following pleas of no contest to misdemeanor charges including resisting arrest, trespassing on public property and violating the now deemed unconstitutional city curfew ordinance in Cleveland Municipal Court by Tolls and McCardle, both White community activists. They and nine other Occupy Cleveland members were arrested in October of last year by Cleveland police in swat gear at a protest on public square that drew some 300 people angry at corporate greed and malfeasance by banks and mortgage companies locally and from across the nation.
Mayor Jackson, who is Black, initially allowed permits for the tents and protests but after the permits expired late in 2011 he wanted Occupy Cleveland gone, saying Christmas season was coming and the city had other plans for Public Square, a center of the downtown section of the majority Black major metropolitan city of some 400,000 people.
Occupy Cleveland is a local model of Occupy Wall Street, an international movement against corporate greed and malfeasance. It emerged in Cleveland in July 2011 and after several protests in front of Cleveland City Hall its members took camp in tents in a quadrant of Public Square. It was supported by Cleveland Ward 14 Councilman Brian Cummins and Ohio Congressman Dennis Kucinich, a Cleveland Democrat and former Cleveland mayor who has been named as a possible contender for next year's Cleveland mayor race among to date Jackson himself, millionaire businessman Ken Lanci, and Community Activist Donna Walker Brown.
The once engaged Occupy Cleveland has all but disbanded in recent months, controversy notwithstanding.
The mayor's spokesperson on Occupy Cleveland told Cleveland Urban News.Com in 2011 shortly after the arrest last year of the Occupy Cleveland 11 that Jackson supports efforts to end foreclosure corruption and mortgage fraud but that he disagrees with the way Occupy Cleveland, a largely White group with most members between the ages of 20 and 35, has gone about doing it.
"Mayor Jackson led Cleveland City Council in passing a predatory lending law long before other cities were even aware of the issues and he sued over banks and mortgage companies for the damages that they caused to Cleveland neighborhoods," said Jackson Chief of Staff Ken Silliman in an interview in 2011.
The free speech win is bittersweet as four former Occupy Cleveland members, all White men, were sentenced to long prison terms by federal district court judge David Dowd after pleading guilty earlier this year to plotting to bomb Route 82 bridge in April in the Cuyahoga Valley National Park in Sagamore Hills between Cleveland and Akron, Oh. with dummy explosives provided by an FBI informant.
Brandon Baxter, 21, of Lakewood, Oh., was sentenced to 9 years and 9 months in prison, Connor Stephens, 21, of Berea, Oh., received an 8 year prison sentence and Anthony Hayne, 35, received a 6 year sentence.
Ring Leader Douglas White, 27, of Indianapolis, In., was handed a sentence of 11 and 1/2 years in prison.
A fifth suspect Joshua Safford, 23, of Cleveland, is undergoing psychiatric analysis and his case is still pending.
The guilty pleas earlier this year from those sentenced came after former pleas of not guilty and claims by defense attorneys, including Stephens defense attorney Terry Gilbert of Cleveland, that the men were victims of a sting by federal authorities at the hands of paid FBI informant Shaquille Azir, 39, who found them housing and fed them food and drugs.
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