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Ohio Supreme Court Rules That Child-Enticement Statute is Unconstitutional.

The Ohio Supreme Court has held that Ohio’s child-enticement statute is unconstitutionally overbroad because it sweeps within its prohibitions a significant amount of constitutionally protected activity.

 

The case is State v. Romage, Slip Opinion No. 2014-Ohio-783.

 

The Defendant in this case was charged with criminal child enticement after he asked a child to carry some boxes to his apartment in exchange for money.

 

The Statute, R.C. 2905.05(A), provides:

 

No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:

(1) The actor does not have the express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.

(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor’s lawful duties in that capacity.

 

A law can be found to be unconstitutional if it is so broadly written that it may have a deterrent effect on free expression.  The United States Supreme Court has held that for a statute to be facially invalid on overbreadth grounds, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Members of Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

The Ohio Supreme Court observed that the purpose of the child enticement statute is to prevent child abductions or the commission of sexual acts with children. However, this admirable goal was not sufficient to save the statute.  The court wrote:

Certainly, the safety and general welfare of children is even more deserving of governmental protection. But a statute that defines criminal conduct should not include what is constitutionally protected activity. Even though the state has a legitimate and compelling interest in protecting children from abduction and lewd acts, a statute intended to promote legitimate goals that can be regularly and improperly applied to prohibit protected expression and activity is unconstitutionally overbroad. R.C. 2905.05(A) is such a statute. Although the statute uses the word “knowingly,” the word modifies “solicit.” The statute fails to require that the prohibited solicitation, coaxing, enticing, or luring occur with the intent to commit any unlawful act.

The court noted that many innocent acts would seem to fall under the language of the statute, including, “a primary-school coach offering to drive a team member home to retrieve a forgotten piece of practice equipment; a parent at a community facility offering to drive another’s child home so she does not have to walk; a senior citizen offering a 13-year-old neighborhood child money to help with household chores; a 14-year-old asking his 12-year-old friend to go for a bike ride.”

In summary, the court held that the statute was unconstitutional because “There is no requirement that the offender be aggressive toward the victim. One need not have intent to commit a crime.”

Justice French, dissenting, suggested that the word “solicit” in the statute could be read narrowly “with its neighboring operative verbs—‘coax, entice, or lure’” so that “one can reasonably find a more sinister connotation.”

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US Supreme Court Allows Police to Take DNA When Person Is Arrested

The United States Supreme Court has held that when officers make an arrest for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is permissible under the Fourth Amendment.

The case is Maryland v. King.

This is significant in Ohio, as the Ohio Supreme Court has held that a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample, and may not object to its use by the state in a subsequent criminal investigation.

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Court Overturns Enticement Conviction of Man Accused of Luring 13-year-old Girl Online

The case is State v. Goode, 2013-Ohio-556.

According to media coverage the Defendant spoke to a 13 year old girl while she was walking home from the library where he worked in 2011.  The 37-year-old Defendant allegedly asked her name so they could be “secret friends” on Facebook.

The Defendant was convicted of child enticement. R.C. 2905.05.

The court of appeals found that the statute is unconstitutionally overbroad.  A statute is unconstitutionally overbroad if it “its potential application reaches a significant amount of protected activity.”

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Do Elmwood Place Traffic Cameras Violate Ohio or US Constitutions?

The issue of traffic cameras to catch speeding violations has received recent attention because of  a program by the Village of Elmwood Place in Southwest Ohio.

Some have asked whether this violates the Ohio or United States Constitutions.

In 2008, the Ohio Supreme Court decided that a municipality may constitutionally use its home-rule powers to authorize a method of traffic enforcement that imposes a civil fine on the registered owner of a vehicle identified by automatic camera to be speeding in a school zone.

The case Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270.

In 2005, the Akron City Council passed an Ordinance authorizing the use of cameras in mobile units to identify speed-limit violators in school zones. The city then entered into a contract with Nestor Traffic Systems, Inc. (“Nestor”) to install and administer the automated enforcement system.

The system is purely civil in nature.  The Ohio Supreme Court described it as follows:

The ordinance authorizes the imposition of civil monetary fines when the posted speed limit in the targeted enforcement areas has been violated.  If a vehicle exceeds the posted speed limits, the owner of the vehicle receives a “notice of liability,” which includes photographs of the vehicle, the vehicle’s license plate, the date, time, and location of the violation, the posted speed limit, the vehicle’s speed at the time of the violation, and the amount owed as a civil penalty.  The criminal justice system is not involved in penalizing violations of the speed limit captured by an automated camera.  Unlike those who receive speeding citations from a police officer who has observed the infraction, speeders caught by the automated enforcement system do not receive criminal citations, are not required to appear in traffic court, and do not have points assessed against their driving records.

Owners of vehicles receiving notices of civil liability have several options.  They may pay the amount owed, sign an affidavit that the vehicle was stolen or leased to someone else, or administratively appeal the violation.  Owners choosing to appeal have 21 days to complete and return the notice-of-appeal section of the notice-of-liability form.

Administrative appeals of notices of liability are overseen by a hearing officer, who is an independent third party appointed by the mayor of Akron.  After administering the oath to any witnesses and reviewing all the evidence, the hearing officer determines whether a violation . . . is established by a preponderance of the evidence and whether the owner of the vehicle is liable for that violation.  The images of the vehicles and their license plates, the ownership records of the vehicles, and the speed of the vehicles  on the date in question are considered prima facie proof of a civil violation and are made available to the appealing party.

Under Ohio’s Constitution, a municipality may “to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

In this situation, a potential conflict exists because the state has enacted statutes regarding speed limits.  These statutes are enforced as part of the criminal law of the State.  The court concluded that no conflict existed because the “Akron ordinance does not change the existing state speed limits; in that respect, the ordinance prohibits conduct identical to that prohibited by state law.”

However, by adopting civil penalties, Akron may have created a conflict by changing the character of an offense.  The court also rejected this potential conflict.  The court said that the traffic cameras do not replace traffic law, “It merely supplements it.”  The court noted that a person cannot be subject to both criminal and civil liability under the ordinance.

The question of a due process violation was resolved in favor of the City by the Sixth Circuit Court of Appeals.  Mendenhall v. City of Akron, 374 Fed. Appx. 598, 599-601 (6th Cir. Ohio 2010).  The court said that the ordinance provided constitutionally adequate due process because “the ordinance provides for notice of the citation, an opportunity for a hearing, provision for a record of the hearing decision, and the right to appeal an adverse decision.”  The court specifically rejected the claim that “it violates due process to impose civil penalties for speeding violations irrespective of whether the owner was, in fact, driving the vehicle when the violation was recorded.”

Judge Clay dissented.  Judge Clay wrote that “Akron’s civil speed enforcement scheme violates due process by failing to provide vehicle owners with an opportunity to avoid liability by proving that they did not commit the infraction.”  Judge Clay suggested that the hearing officer only consider evidence of whether a violation “occurred in the owner’s car, not whether the owner was the person who committed the violation.”  Due process, under this view, is violated because “an owner may be held liable for someone else’s actions.”

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Federal Appeals Court in Cincinnati Rejects Challenge to Hate Crimes Law

The Sixth Circuit Court of Appeals in Cincinnati has rejected a lawsuit filed by pastors who alleged that a federal hate crimes law violates their constitutional right to denounce homosexuality.

The case is Glenn et al v. Holder.

A federal district court in Michigan dismissed the lawsuit in September 2010, and the group appealed to the Sixth Circuit. The United States Court of Appeals for the Sixth Circuit ruled the Act — which imposes harsher punishments for individuals who commit violent acts on individuals due to their sexual orientation — was constitutional, and did not suppress anti-gay speech.

The Plaintiffs are pastors who claim that homosexuality is “forbidden by God.”  They claim they “have a [religious] obligation to state clearly the immoral nature of homosexuality” that requires them to “publicly denounce homosexuality, homosexual activism, and the homosexual agenda as being contrary to God’s law and His divinely inspired Word.”

The Hate Crimes Act was enacted by Congress and signed into law in October 2009.  The law provides criminal penalties for “[w]hoever . . . willfully causes bodily injury to any person . . . because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”  18 U.S.C. § 249(a)(2)(A).  The Act, according to the court, “prohibits violent acts; it does not prohibit constitutionally protected speech or conduct.”

The Plaintiffs alleged that the Act’s criminal provisions “will deter, inhibit, and chill their speech and activities and will subject them to ‘increased government scrutiny, questioning, investigation, surveillance, and intimidation on account of their strong, public opposition to homosexual activism, the homosexual lifestyle, and the homosexual agenda.’”

Significantly, the Plaintiffs did not cite any actual government actions against them.  For this reason, they did not have standing to challenge the law because the Act does not prohibit any of their proposed course of speech.  The court said:

Plaintiffs can’t quite pinpoint what it is they want to say that could subject them to prosecution under the Hate Crimes Act.  They try, for example, when they hypothesize that they might be subject to enforcement actions for quoting Biblical references to homosexuality, but even there only one such quotation contains any suggestion of “bodily injury.”  That’s Leviticus 20:13—“If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.”  Whatever meaning Plaintiffs attribute to this passage, they have not alleged any intention to do more than merely quote it.  About that, the Hate Crimes Act has nothing to say.

The court was critical of the plaintiffs’ arguments:

So why are Plaintiffs here?  If the Hate Crimes Act prohibits only willfullycausing bodily injury and Plaintiffs are not planning to willfully injure anybody, then what is their complaint?  Plaintiffs answer that they fear wrongful prosecution and conviction under the Act.  Not only is that fear misplaced, it’s inadequate to generate a case or controversy the federal courts can hear. . . . .

And conspicuously absent from Plaintiffs’ allegations is any express (or even implied) threat of official enforcement of the Hate Crimes Act against Plaintiffs or any other religious leaders for the type of conduct they seek to practice:  there is nothing that objectively supports “a credible threat of prosecution.”   The same is true of Plaintiffs’ claim that the Hate Crimes Act will subject them to adverse law enforcement action short of prosecution, such as investigation and surveillance:  they have presented no actual facts to support an assertion that the government has taken or intends to take any investigatory actions under the Act against those merely engaging in protected speech.

 

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