Graff et al v. Cincinnati

Filing 1

COMPLAINT for Declaratory, Injunctive, and Monetary Relief against City Of Cincinnati ( Filing fee $ 400 paid - receipt number: 0648-7494076), filed by Alexandra Graff, Cassandra Sallee. (Attachments: #1 Exhibit Curfew Order) (Kinsley, Jennifer)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
CINCINNATI DIVISION
ALEXANDRA GRAFF,
c/o Santen & Hughes
600 Vine Street, Suite 2700
Cincinnati, OH 45202,

:
:
:

and

:

CASSANDRA SALLEE,
c/o Santen & Hughes
600 Vine Street, Suite 2700
Cincinnati, OH 45202,

:
:

Plaintiffs,

:

V.

:

CITY OF CINCINNATI
801 Plum Street
Cincinnati, Ohio 45202,

:

Defendant.

Case No. _____________________

:

COMPLAINT
FOR DECLARATORY,
MONETARY, AND INJUNCTIVE
RELIEF

:
___________________________________________
INTRODUCTION

1.

This is a lawsuit pursuant to 42 U.S.C. § 1983 challenging the actions of the City of

Cincinnati in unconstitutionally censoring, criminalizing, and punishing the free expression of
protestors in the wake of the deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery.
Plaintiffs are individuals who desire to exercise their First Amendment rights to speak out about
police brutality and racism, but are chilled in that expression by the City’s censorship efforts. More
specifically, Plaintiffs have withdrawn their speech from planned protests to avoid being arrested
under an emergency curfew order issued by the Cincinnati Mayor and out of fear of being exposed to

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tear gas, pepper projectiles, and other displays of force targeted at protesters by the Cincinnati Police
Department.
2.

As described in this Complaint, the Mayor’s curfew order is an unconstitutional

content-based restriction on speech that is overbroad and has been selectively enforced against
individuals protesting police brutality and racism. In addition, the curfew order is preempted by
state law and is invalid under the Cincinnati City Charter. In this lawsuit, Plaintiffs seek a
declaration that the Mayor’s curfew order violates the First and Fourteenth Amendments and the
City Charter and is barred by the doctrine of preemption, along with injunctive relief against any
future curfew orders. Plaintiffs also seek nominal monetary damages for violations of the First and
Fourteenth Amendment rights.
JURISDICTION
3.

Jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief is proper in

this Court pursuant to 28 U.S.C. §§ 1331(a), 1343(3), and 1343(4).
4.

This Court has supplemental and pendent jurisdiction pursuant to 28 U.S.C. § 1367 to

review and decide Plaintiffs’ state law claims.
5.

Venue is proper in this district and division pursuant to S.D. Ohio Local Rule 82.1, as

the various acts which form the basis of this complaint occurred within Hamilton County, Ohio.
PARTIES
6.

Plaintiff Alexandra Graff is a resident of the City of Cincinnati. Graff has engaged in

recent protests prompted by the murder of George Floyd, but has substantially abided by the curfew
order imposed by the Cincinnati Mayor. She desired to engage in additional protesting and nonviolent expressive activities, but was deterred by her fear of being arrested under the curfew order.
Graff is afraid to participate in upcoming planned protests because she fears arrest.
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7.

Plaintiff Cassandra Sallee is a resident of Hamilton County. Sallee has engaged in

recent protests prompted by the murder of George Floyd, but has substantially abided by the curfew
order imposed by the Cincinnati Mayor. She desired to engage in additional protesting and nonviolent expressive activities, but was deterred by her fear of being arrested under the curfew order.
Sallee is afraid to participate in upcoming planned protests because she fears arrest.
8.

Defendant City of Cincinnati (“the City”) is a unit of local government organized

under the laws of the State of Ohio. The City is a “person” capable of being sued under 42 U.S.C. §
1983 and at all times relevant to this case acted under color of law.
9.

Defendant City of Cincinnati carries out its actions, in part, through its elected mayor,

city manager, police chief, and other governmental officials.
STATEMENT OF FACTS
10.

On Memorial Day 2020, Minneapolis police killed George Floyd, an unarmed

African-American man suspected of paying for groceries with a counterfeit $20 bill. Two officers
held his body down face down on the ground, while another officer pinned Floyd’s head against the
ground by forcefully placing his knee into Floyd’s neck for nearly ten minutes. Several months
earlier, Louisville police shot and killed Breonna Taylor, an unarmed African-American woman and
an EMT, in her bed as she slept. Around the same time, prosecutors and police in South Georgia
conspired to allow three white men who trapped and killed Ahmaud Arbery, another unarmed
African-American man, to go uncharged.
18.

These three killings brought racism, and specifically racist policing, to the forefront

of the American consciousness. In the wake of Floyd’s death, people began peacefully protesting
across the country to call attention to the problem of police murdering innocent black people.

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19.

Such protests began in Cincinnati on or about Friday, May 29, 2020 and continued

through June 1, 2020. Protests are planned to continue throughout June. More specifically, protests
are planned in the Cincinnati area for the weekend of June 7, 2020.
20.

The City of Cincinnati began arresting protestors during the late night hours of May

29th into the early morning hours of May 30th, and it continued arresting protestors each consecutive
day thereafter. As of the filing of this complaint, hundreds of people have been arrested for
exercising their right to free speech in public spaces in and near downtown Cincinnati. Many of
those individuals were sprayed with tear gas by police prior to being arrested, shot at by police with
pepper bullets and rubber bullets, and forcibly arrested by police officers using excessive force.
21.

Many of those individuals who have been arrested have been charged with violating

the Mayor’s curfew order. Issued on May 31, 2020, the emergency order sets a city-wide curfew for
all public spaces in the city between the hours of 9:00pm and 6:00am (“the curfew order”). (See
Exhibit A: May 31, 2020 Emergency Order.) On June 3, 2020, the Mayor extended the start of the
daily curfew to 11:00pm and extended the duration of the curfew order through Sunday, June 7,
2020.
22.

As grounds for the curfew order, the Mayor cited “the threat of continued and

escalating violence; the need for security and enforcement support for the Cincinnati Police
Department; and the need to protect the City’s first responders from the spread of COVID-19.” (Id.)
23.

Notably, the curfew order exempted a laundry list of speakers who were permitted to

remain in public after 9:00pm for expressive purposes. These include government officials, people
experiencing homelessness, and members of the news media deemed “essential workers.” (Id.) All
of these individuals are permitted to engage in constitutionally-protected expression during the
curfew hours, while people protesting the murder of George Floyd are not.
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24.

While the curfew order does not define the term “essential worker,” state law defines

the term “essential business,” which presumably employs essential workers. Essential businesses
include First Amendment- protected free speech activities.
25.

Plaintiffs desire to engage in protected free expression by participating in peaceful

protests around the issues of police brutality and racism. They are afraid to do so and have curtailed
their own expression as a result of the Mayor’s curfew order and their fear of being arrested.
CAUSE OF ACTION
Claim One:
Violation of First Amendment Rights
26.

Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.

27.

Plaintiffs have a protected right to communicate in public forums about matters of

public and political concern without interference by the government. These rights are protected by
the First Amendment free expression and free association provisions.
28.

The curfew order issued by the Cincinnati Mayor violates the First Amendment for

the following reasons:
a)

The order, both on its face and as applied, is impermissibly content-based, because it

exempts and permits certain kinds of expression, namely that presented by members of the news
media and other essential workers, while silencing expression on other topics, namely the protest of
institutional racism;
b)

The order, both on its face and as applied, violates strict scrutiny, because it does not

advance a compelling government interest and is not the least restrictive means of achieving the
government’s objectives;

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c)

The order is substantially overbroad and punishes substantially more speech than

necessary;
d)

The order impermissibly closes public forums, namely streets and sidewalks, to

constitutionally-protected expression; and
e)

In the alternative, the order, both on its face and as applied, imposes an invalid time,

place, and manner restriction on speech, because it is not narrowly tailored to a substantial
government interest and fails to leave open sufficient alternative avenues of expression.
Claim Two:
Selective Prosecution in
Violation of Fourteenth Amendment Rights
29.

Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.

30.

The Fourteenth Amendment protects the right of equal protection under the law. This

provision prevents the government from selectively enforcing laws against particular groups of
people, including those who choose to exercise their protected constitutional rights.
31.

The City of Cincinnati has selectively enforced the Mayor’s curfew order against

individuals exercising their right of free speech as part of the ongoing protests. Upon information
and belief, only those individuals who were engaged in protests in and near the downtown area have
been arrested and charged with curfew violations, while violations in other parts of the city and by
persons other than protesters have gone unpunished.
32.

The City’s practice of selectively enforcing the curfew order against protestors

violates the Fourteenth Amendment.
Claim Three:
Separation of Powers
33.

Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.
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34.

The Cincinnati Mayor retains only executive authority. He does not have authority to

enact legislation or create criminal law.
35.

By enacting the curfew order, absent any meaningful legislative process, the

Cincinnati Mayor abdicated his executive role and engaged in the kind of law-making endeavor
reserved to the legislative branch.
36.

The Mayor’s curfew order therefore violates the doctrine of separation of powers and

is unconstitutional.
Claim Four:
State Preemption
37.

Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.

38.

The State of Ohio, by and through its Governor and Health Director, has enacted a

comprehensive plan to prevent the spread of COVID-19. The plan is so extensive and detailed that it
occupies the field relative to the COVID-19 response and leaves little room for local municipalities
to legislate.
39.

The Mayor’s curfew order directly conflicts with the state order which does not

impose a curfew.
40.

To the extent it is based upon the desire to stop the spread of COVID-19, the Mayor’s

curfew order is preempted by state law.
Claim Five:
Violation of Ohio Open Meetings Act
41.

Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.

42.

The Ohio Open Meetings Act, Ohio Rev. Code § 122.22, prohibits public bodies from

conducting public business in private.

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43.

When the Mayor enacted the curfew order, he was functioning as a public body

subject to the Ohio Open Meetings Act.
44.

The Mayor’s curfew order was enacted outside of a public meeting. No public notice

was provided prior to its issuance about the details of the order and its contents, and no public
hearing was held prior to the Mayor signing it into law.
45.

The Mayor’s curfew order therefore violates the Ohio Open Meetings Act.
Claim Six:
Violation of City Charter/
Ultra Vires Act

46.

Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.

47.

Article III of the City Charter enables the Mayor with the consultation of City

Council to “take command of the police, maintain order and enforce the law.”
48.

Upon information and belief, the Mayor dd not consult with City Council prior to

issuing the curfew order. As a result, the order is not a valid exercise of mayoral power under
Article III of the City Charter and is ultra vires.
49.

Article XVIII of the Cincinnati Administrative Code authorizes the Mayor to issue

emergency curfew orders that are “advisable in the interest of the public peace, health, safety, or
welfare.”
50.

The curfew order does not meet the “advisable” standard and is therefore unlawful

under Article XVIII of the Cincinnati Administrative Code.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully demand that this Court:
1.

Enter a final judgment pursuant to 28 U.S.C. §§ 2201 and 2202 and Rules 54, 57, and

58 of the Federal Rules of Civil Procedure that the Cincinnati Mayor’s curfew order violates the
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First and Fourteenth Amendments and the Cincinnati City Charter; that the curfew order is invalid
under the doctrines of separation of powers and preemption; that the Mayor violated the Ohio Open
Meetings Act by legislating crime in the absence of a public meeting; and that the curfew order has
been selectively enforced in violation of the First and Fourteenth Amendments;
2.

Preliminarily and permanently enjoin the City from adopting, enacting, or enforcing

the curfew order and any future curfew orders designed to silence peaceful protests related to police
brutality, institutional racism, and/or the deaths of George Floyd, Breonna Taylor, and Ahmaud
Arbery;
3.

Order nominal monetary damages for violations of Plaintiffs’ civil rights;

4.

Award Plaintiffs’ attorney fees and costs pursuant to 42 U.S.C. § 1988; and

5.

Grant such other relief to Plaintiffs as the Court deems to be just, proper, and

equitable.
Respectfully submitted,
/s/ Jennifer M. Kinsley
JENNIFER M. KINSLEY (Ohio Bar No. 0071629)
Kinsley Law Office
Post Office Box 19478
Cincinnati, Ohio 45219
[phone]
[e-mail]
/s/ H. Louis Sirkin
H. LOUIS SIRKIN (Ohio Bar No. 0024573)
JOHN D. HOLSCHUH III (Ohio Bar No. 0095377)
Santen & Hughes
600 Vine Street, Suite 2700
Cincinnati, Ohio 45202
[phone]
[e-mail]
[e-mail]
Counsel for Plaintiffs
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