“No One Has a First Amendment Right to Physically Assault Another,”

Starting at State v. Locke, was decided by the Ohio Court of Appeals on Thursday in an opinion of Judge Sean Gallagher joined by Judges Mary Boyle, Michelle Sheehan.

Locke took part in protests near the area where the September 2020 debate was taking place. Locke was held by police for an unknown reason. Locke was seen “kneeing” Sergeant Sean Dial during this arrest. Locke was charged with violating R.C. Locke was arrested and charged with a violation of R.C. 2901.01(A)(9). Locke was the only arrest made during the night of the presidential debate.

Locke’s attorney of records negotiated with the state a plea agreement during pretrial proceedings. Locke pleaded guilty to obstruction under R.C. approximately one month prior to the trial date. Locke pleaded guilty to obstruction of official business under R.C. 2921.31. Locke admitted that she violated the law in the fifth degree, and it was a felony. It is clear that the trial court held a comprehensive and thorough plea colloquy pursuant to Crim.R. 11 included Locke telling the court, pertinently, that she was happy with the representation of her attorney during pretrial proceedings.

Sgt. Dial claimed that Locke did not attempt to harm him. There is no evidence that Locke was detained using any form of excessive or unreasonable force. Locke, for her part, accepted her responsibility and later apologized to Sergeant. Dial did not pay [him]The respect [he] deserve[s]Locke, as both a police officer and as an individual. The trial court sentenced Locke for a year to community control. This included 10 days in jail, which were followed by fines and court costs. Locke did no appeal the conviction.

Locke received new counsel one month after her sentence. He filed a motion to set aside her guilty plea. Locke stated in her motion that Locke’s previous lawyer failed to represent her properly and explained the consequences of her guilty plea to fifth-degree felonies. Locke stated that she did not disclose specific facts about the incident and claimed her lawyer failed to adequately represent her. She also failed to mention that the First Amendment rights in her case are at risk. Locke further asserted that her defense counsel had failed to defend her against the charges.

Locke also expressed concern about her future prospects after she was convicted of felony. Locke claimed in her appeal briefing that she lost a college scholarship from The School of Art Institute of Chicago in fall 2020 because of her conviction. That claim is not supported by any verified statement or other evidence presented to the trial court and, in fact, is contradicted by the sentencing transcript in which it was disclosed that she declined to attend the institution due to financial reasons….

Locke’s worries about the explanations her trial counsel failed to give are unfounded, even if they were accepted.

A First Amendment rights to assault someone is not available to anyone, even a police officer who acts in their official capacity. Wisconsin v. Mitchell, (1993) (“A physical assault is not … expressive conduct protected by the First Amendment”), and NAACP against Claiborne Hardware Co. (1982) “The First Amendment does no protect violence” Furthermore, the Ohio law provides that law enforcement officers are “not protected by the First Amendment” as this applies to them.[i]Private citizens cannot resist being arrested by officers who use excessive or unnecessary force. Whether or not arrest was legal in the context.

Even though we stress the fact that Locke is innocent of any illegal arrest by officers, and that Locke could not defend her case on the merits of Locke’s assault charge, it would remain the same result regardless of whether we presume the invalidity or support evidence of Locke’s original detention.

No matter what the circumstances were leading to her first detention or arrest, her unprovoked use physical force as a response to a benign demand is not legal nor will it be allowed under First Amendment jurisprudence. Locke would be able legally to challenge her initial arrest. However, Locke’s unprovoked use of physical force to respond to a benign request for assistance in her detention wouldn’t have justified her unprovoked strike against a police officer. This in turn justified her arrest.

From all accounts, Locke resorted to physical force against an officer who had asked her to sit down after she was detained for a reason Locke has failed to disclose—Locke’s appellate briefing, in fact, refuses to divulge the underlying conduct that led to her initial detention, and that information is not part of the appellate record since the detention itself was not an issue during the change-of-plea colloquy or the sentencing hearing. The First Amendment doesn’t protect an offender from physically attacking a law enforcement officers, regardless of their initial detention. Even if we were to presume that Locke’s trial counsel failed to explain the well-settled law precluding her from asserting her First Amendment right or the privilege to resist against excessive force, that failure could not support the claimed existence of a manifest miscarriage of justice in support of the belated motion to withdraw the guilty plea….

According to the evidence, Locke’s unprovoked aggressive behavior was caused by being asked to sit down. It cannot therefore be considered that Locke was engaged in a fight where it was possible for him or her claim that the strike was accidental. Locke’s claim that she has defenses against the assault charge or arrest merits is unfounded. Locke has not identified any defenses to the underlying assault charge or strategies for trial that would have been available in support of her claim that but for the failure of her trial counsel to explain those factually inapplicable defenses, she would not have pleaded guilty to the felony charge….