Injunction ordering citizens not to mention the coroner in online messages (and banning them from owning guns)

According to the opinion of Judge Robert Hendrickson of the Ohio Court of Appeals on Monday in Ehlers v. Thomasjoined by Justices Stephen Powell and Matthew Byrne:

Ehlers is the Director of the Montgomery County Coroner’s Office (“MCCO”). In August 2022, Appellants made requests for access to public records at MCCO regarding the deaths of, among others, Casey Pitzer and Marvin Napier. Appellants believe these deaths were part of a cover-up by MCCO and other government entities. Pitzer and Napier were autopsied at MCCO.

The callers communicated with Ehlers primarily through work emails. Over time, the emails sent to Ehlers became more numerous and confrontational. Some emails contained threats of criminal charges, “legal warfare,” and Internet smear campaigns if the records the callers wanted were not released. However, one email from Petry also contained photos of the autopsy as well as photos of Ehlers’ family taken from social media. The email asked:[W]What if it was your daughter?” The email continued:

If we don't get the files immediately. I am [sic] I put you, and all the pictures I can find of you on the internet, as one of the doctors covering up the murders. * * * Your family will be crushed and embarrassed. * * *

It won't be nice of you to let your family be exposed like this. But the fact is, the more you ignore us, the angrier we get. As any parent would. I hope to hear from you by the end of the day. If not, I'll start sending you the REAL internet messages I create about you. * * *

Thomas, in turn, said in an email that because of the alleged actions of Ehlers and others, the entire world “WILL BE SAVED WHY PEOPLE ARE BURNIN’ OUR FUCKING BATHROOMS.” [sic] THE CITIES AND HAVE NO RESPECT FOR LAW ENFORCEMENT!! THEY ARE LIARS AND ASSIST IN MURDERS.” At one point, Thomas attempted to “friend” Ehlers on Facebook and sent her a message that read, “I see you are a Clinton County resident!! * * * this could be good or bad. I hope it is good, really, FYI my friend is employed by NCIS. I served with him in the Marines. We are going to catch Casey's killer!!” The above are just a few of the many communications the callers sent to Ehlers.

On February 24, 2023, Appellants personally went to MCCO to attempt to retrieve records. Ehlers was not there that day. Appellants’ interaction with other MCCO workers became highly confrontational, but not violent. Appellants were eventually escorted out of MCCO by Dayton police. The magistrate’s decision granting the CSPO, discussed below, stated that it gave little weight to this incident.

Ehlers then filed an application for a CSPO against the appellants and was granted an ex parte CSPO the same day. A hearing was held later. Ehlers was represented by counsel and the appellants appeared pro se.

The magistrate concluded that the appellants “knowingly engaged in a pattern of conduct that caused [Ehlers] believe that [Appellants would] cause physical harm or cause or [have caused] “mental distress” and issued a data protection order. The data protection order ordered the appellants “not to post any further messages online that would specifically name the applicant,” and also prohibited the appellants from possessing deadly weapons, including firearms. The duration of the data protection order is five years.

The court concluded – correctly, I think – that the CSPO had violated the First Amendment, citing Bey vs Rasawehr (Ohio 2020) (a case in which I had the pleasure of arguing on behalf of friends):

[T]The CSPO's order that the appellants remove and not post videos and social media posts that “specifically name” Ehler “necessarily relates to the subject matter of the speech.” [and] “cannot be justified without reference to the content of the prohibited communication.” In other words, the restriction “requires an examination of its content, that is, of the person or persons concerned, to determine whether a violation has occurred and concerns the adverse effects that arise from the direct impact of the speech on its audience or [l]the listeners' reactions to the speech…” …

[T]The trial court in this case did not determine whether the appellant's speech fell within one of the categories of speech that could be restricted before ordering a prior restraint on the appellant's speech. Even if it did, the CSPO's blanket ban on the use of Ehler's name is not the least restrictive means of protecting Ehler. We will assume, for the sake of argument…that “protecting victims of civil harassment from the fear of imminent physical harm or mental distress” is a compelling state interest…. [But] the restriction … prevents the use of Ehler’s name in all contexts, including, presumably, the only reason the appellants would speak of Ehler – in connection with the underlying facts of this case. Accordingly, we find that these restrictions are manifestly overbroad.

Ehlers argues that the order is “designed solely to protect [her] and her family,” but the CSPO offers no protection to Ehlers (or her family by indirect extension) beyond not being directly named in any of the callers’ messages, regardless of the subject matter. We see no compelling state interest in providing Ehlers, a public servant, with such anonymity. While public servants are always entitled to the protection of the law, they may still be subject to direct comment and criticism…. [W]Although the “CSPOs issued herein were undoubtedly intended to provide some measure of relief to [Ehlers] for mental distress [she and her family] experienced because of [Appellant’s] “The public accusations…the means chosen to provide this relief…have gone far beyond anything that the factual record before us can support and that the First Amendment can tolerate.” …

And the court struck down the gun restriction:

[A] A gun restriction that “lacks a sufficient nexus to the conduct the trial court was seeking to restrain…” constitutes an unconstitutional restriction on an individual’s Second Amendment right to bear arms. Similarly, our sister courts have held that gun restrictions in a gun protection order are inappropriate “where no evidence is presented that the defendant used or threatened to use a deadly weapon to harm the petitioner.”

In this case, the appellants' communications with Ehlers are certainly troubling in several respects: (1) by juxtaposing gruesome autopsy photos with photos of Ehler's family and asking “[W]What if it was your daughter?”; (2) threatening to “expose” Ehlers and his family on the Internet to be “crushed” and “exposed like this” for the whole world to see and get angry about; (3) claiming that alleged actions like Ehlers’ are the reason people are “burning our fucking [sic] cities and have no respect for law enforcement!!”; and (4) finding Ehlers' personal Facebook page, attempting to become her friend, commenting on where she lived, and claiming that Thomas and his NCIS friend, both former Marines, would catch Casey Pitzer's alleged killer.

However, …. [w]Although the trial court's prohibition on deadly weapons was likely intended to prevent any deadly escalation of this antagonistic conflict, it is clear that the restriction lacks a sufficient nexus to the appellants' conduct because there is no evidence that the appellants used or threatened to use a firearm to harm Ehlers or anyone else involved in this case.

I'm not sure the line provided by the court is entirely correct: for example, I'm not sure the line should light up if the defendant had used a deadly weapon. armed, as opposed to having used deadly or otherwise serious substances force. But in general, I agree that there must be substantial evidence of dangerousness before a civil restraining order can constitutionally prohibit gun ownership.

Matt Miller (Barron, Peck, Bennie & Schlemmer, Co., LPA) represented the appellants.