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Huron activist Stacy Hinners asks court to dismiss charges based on First Amendment retaliation

Friday, September 6, 2019

Video and audio recordings of Council meetings show selective prosecution: Mayor Brad Hartung treated Huron citizens who didn't blow the whistle on secret payments to city manager Andy White differently than he did Mrs. Hinners.

September 6, 2019 – Today, Huron civic activist Stacy Hinners asked the City’s Municipal Court to dismiss the City of Huron’s retaliatory criminal charges against her. The charges resulted from her speech critical of secret payments to Huron city manager Andy White during the May 14, 2019 Huron City Council meeting.

The court filing seeks dismissal of all charges against Hinners for five reasons under Ohio law and the U.S. Constitution:

  • The complaints filed by Huron police officers and the prosecutor just recite the ordinances, but allege no actual criminal conduct supporting the charges of "Disturbing A Lawful Meeting," "Resisting Lawful Arrest," or "Obstructing Official Business."

  • The charging officers lacked both statutory authority and probable cause to suspect Mrs. Hinners of any crime. Huron police office seized and charged Mrs. Hinners without personally observing any misdemeanor as required by Ohio Revised Code Section 2935.03.

  • As abundant video and audio footage (linked below) of Huron City Council meetings shows, the City is unconstitutionally selectively prosecuting Mrs. Hinners for alleged conduct in which it regularly permits other citizens to engage—because she challenged the legality of the City’s secret payments to the city manager. This defies the U.S. Constitution’s due-process requirement because it is so fundamentally unfair.

  • The City’s prosecution violates Mrs. Hinners’s First Amendment rights by retaliating against her for protected speech.

  • The City’s prosecution violates Mrs. Hinners’s Fourth Amendment right to be from unreasonable seizure (when Huron dragged her out of Huron City Council as she was just peacefully watching the meeting) and her Fifth Amendment privilege to refuse to speak to police.

The Council Meeting.

As video footage of the incident shows, the day after Mrs. Hinners and her husband Jason Hinners filed a lawsuit revealing City Council members’ Open Meetings Act violations, Mrs. Hinners spoke at the May 14, 2019 Huron City Council meeting during a segment designated for public comments. Mrs. Hinners rose from her seat to speak, and Mayor Brad Hartung yelled at her to “speak from the podium” (lectern) instead. Mrs. Hinners went to the lectern and restarted her speech, noting several controversial decisions the Council had made over the last two years and saying that whether they were good or not, “the community had a right to know about them and weigh in on them.”

The criticism was apparently more than Mayor Brad Hartung could bear. In a text message to Chief of Police Bob Lippert, City Manager Andy White said Hartung was “ignited” and “wants her arrested.” Another witness observed the mayor was “visibly upset.” Watching how Mayor Hartung’s “face got red,” one first-time visitor to City Council was “flabbergasted” at how “angry and irate” the mayor was. She pulled out her camera because “something was amiss.”

She was right. Mayor Hartung left his seat, spoke with City Manager White and Law Director Aimee Lane, and then summoned the police. As Mrs. Hinners was wrapping up her speech, police still had not arrived. Two minutes and 53 seconds in, Mrs. Hinners revealed to her neighbors that Council had made secret payments to City Manager White. Vice Mayor Trey Hardy immediately cut her off, telling her—falsely—that her three minutes were expired.

Mrs. Hinners requested that she receive the Council’s routine courtesy of additional time to conclude her remarks, but Mayor Hartung ordered her to sit down and notified her of his decision to have her charged with disturbing a public meeting. After noting the discrepancy between how she was being treated and how other citizens had been treated, and within 50 seconds of Mr. Hardy calling time, Mrs. Hinners sat down. The Mayor never ordered Mrs. Hinners to leave the meeting; he never suspended or recessed the meeting.

The meeting continued without interruption; two other citizens spoke to Council. About five minutes later, while Mrs. Hinners was sitting quietly, listening to other citizens speak, the police arrived. They stood in the back and observed only a meeting occurring without disruption. Mayor Hartung then walked out of the meeting and in an eleven-second exchange, angrily pointed at Mrs. Hinners. The police entered Council chambers and asked Mrs. Hinners if she would speak to them outside. She wanted to continue observing the public meeting, so she declined—as is her solemn right as an American.

Mayor Hartung then ordered the police to remove Mrs. Hinners: “Remove her! Remove her! Yes. If you can’t get up and respect like everyone else does—I understand that you’re upset about stuff, but this is a city council meeting. You stand up and you do it. You don’t grandstand. You don’t do that. You don’t turn around. You don’t make the rules.”

The police attack on Mrs. Hinners.

Police conducted no other investigation before seizing Mrs. Hinners; they questioned none of the other 40-plus witnesses in the room, they did not review the readily available audio or video footage. They grabbed Mrs. Hinners by the arms, pulled her out of her chair where she was sitting next her teenage son, threw her against a wall, handcuffed her, and marched her from Council chambers.

The retaliatory and deficient charges against Mrs. Hinners.

That night, Mrs. Hinners became the first person to be prosecuted for disturbing a lawful meeting in Huron in at least the 20 years for which electronic court records exist. The complaint filed by police against Mrs. Hinners read simply:

No person, with purpose to prevent or disrupt a lawful meeting, procession or gathering, shall do any act which obstructs or interferes with the due conduct of such meeting, procession, or gathering. To wit: Stacy Hinners did disrupt the City of Huron Council meeting. Probable cause was established through officer investigation.

The complaint didn’t allege Mrs. Hinners interfered with or obstructed the meeting, that any interference or obstruction to the meeting was “substantial”—as required by caselaw interpreting the offense’s language—or that she acted with purpose to disrupt the meeting as the offense requires.

The next day, after Mrs. Hinners’s counsel notified the law director of his representation and asked it to dismiss the charge immediately to avoid further issue, the police tacked on an additional charge of resisting lawful arrest. That charge fails to assert there was ever any arrest—let alone a lawful one—for her to resist:

No person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another. TO WIT: Stacy Hinners did resist arrest by pulling away from officers while officers were attempting to handcuff Hinners. Probable Cause was established through officer investigation and witness accounts.

Several months later, “Special Prosecutor” Michael Joseph O’Shea—specially handpicked by law director Aimee Lane—tripled down by filing a third complaint against Mrs. Hinners, claiming she obstructed official business:

No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties. TO WIT: Stacy Hinners did fail to leave the Huron City Council Meeting after multiple requests made by officers for her to leave. Stacy Hinners physically thwarted attempts by officers to calmly follow their attempts to follow their lawful duties; including but not limited to stiffening up, resting soft attempts by the officers to remove her from her seat, pulling away from officers as they attempted to escort her from the room and pushing back on officers as they tried to calm her down and removed her from the room. Probable cause was established through officer investigation.

The complaint did not allege that Mrs. Hinners—as required by Ohio law—had a purpose to obstruct officers from performing a lawful duty, that she was without privilege to do so, or that the officers had to remove Mrs. Hinners from the meeting.

The “special” prosecutor’s failure to dismiss the resisting-lawful-arrest charge as promised.

“Special Prosecutor” O’Shea sought a written not-guilty plea and time waiver on the obstruction charge, promising Mrs. Hinners that in exchange, he would move to dismiss the resisting charge at the City’s cost “[o]nce this new charge is docketed.” Although Mrs. Hinners accepted and entered both her plea and time waiver two days later, O’Shea failed to follow through with dismissing the resisting charge and is now willing to do so only, as he put it, “when I get around to it.”

Ohio courts require a “substantial” disruption before a charge is warranted, meaning the meeting must be “terminated” or “substantially impair” the assemblage’s conduct.

To prevent mischief by public officials like Mayor Hartung, Ohio courts require proof of some substantial harm resulting from the supposed “disturbance.” The Ohio Supreme Court recognizes only two types of harm as sufficient to trigger criminal liability for disturbing a lawful meeting: “First, those which cause a lawful assemblage to terminate in an untimely manner. Second, those which substantially impair the conduct of the assemblage.” State v. Schwing, 42 Ohio St. 2d 295, 305–06 (1975).

Courts treat this added requirement as an element of the offense, ensuring that it is not just considered by the jury but also that it is alleged in the complaint. Yet here, the complaint merely insists that Mrs. Hinners “did disrupt the City of Huron council meeting.” Constrained by the abundance of video evidence to the contrary, the complaint doesn’t allege Mrs. Hinners’s speech caused the meeting “to terminate in an untimely manner,” nor that Mrs. Hinners’ remarks “substantially impair[ed]” the conduct of the meeting.

Selective prosecution is unconstitutional.

The Supreme Court has held: “Although prosecutorial discretion is broad, it is not unfettered. Selectivity in the enforcement of criminal laws is ... subject to constitutional constraints. In particular, the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, … including the exercise of protected statutory and constitutional rights.” Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L.Ed. 2d 547 (1985) (cleaned up).

Videos and audio of Huron City Council meetings since 2018 show Mayor Hartung unconstitutionally singled out Mrs. Hinners for prosecution—for conduct that dozens of citizens have engaged in without consequence.

Video footage shows that speakers at City Council meetings regularly engage in the conduct that the State has suggested might be the basis for the charges against Mrs. Hinners here.

For instance, audience members who give speeches about topics other than Council making secret, backroom payments to City Manager Andy White regularly speak from somewhere other than the lectern without being arrested. Examples include the following:

  • Beth Fisher at the January 9, 2018 meeting;
  • Gina Woody at the January 9, 2018 meeting;
  • Gordon Hahn twice, at the January 9, 2018 meeting;
  • Steve Fisher at the January 9, 2018 meeting;
  • Sandy Legando three times, at the January 9, 2018 meeting;
  • Steve Fisher at the January 23, 2018 meeting;
  • Tony Legando at the April 24, 2018 meeting;
  • Robert Forney, Jr. at the April 24, 2018 meeting; and
  • Phyllis Wassner at the May 22, 2018 meeting.

Mayor Hartung didn't mind when people other than Stacy Hinners who weren't talking about secret payments to City Manager Andy White didn't "step up to the podium."

Similarly, many audience members regularly turn to face the audience without being arrested when they address topics other than Council making secret payments to Mr. White. Examples include:

  • Paul Hanny at the January 23, 2018 meeting;
  • Steve Fisher at the January 23, 2018 meeting;
  • Kyle Orten at the January 23, 2018 meeting;
  • Shannon Pollack at the February 27, 2018 meeting;
  • Glen Szatala at the April 24, 2018 meeting;
  • Beth Fisher at the April 24, 2018 meeting;
  • Gina Woody at the April 24, 2018 meeting;
  • Tony Legando at the April 24, 2018 meeting;
  • Shannon Pollack at the May 22, 2018 meeting;
  • Rebekah Cupp at the January 8, 2019 meeting;
  • Mary Kay Schlessman at the January 8, 2019 meeting; and
  • Sandy Legando at the January 8, 2019 meeting.

Mayor Hartung didn't mind when people other than Stacy Hinners didn't "turn to face Council" and turned to the public instead..

And speakers are regularly allowed to exceed the supposed three-minute limit on speeches without being arrested when they give speeches about topics other than Council making secret payments to Mr. White. Examples include:

  • Kyle Orten at the January 23, 2018 meeting;
  • Tony Legando at the January 23, 2018 meeting;
  • Pete Schade at the January 23, 2018 meeting;
  • Beth Fisher at the January 23, 2018 meeting;
  • Bill Scott at the February 27, 2018 meeting;
  • Stacy Hinners at the February 27, 2018 meeting (not talking about secret payments to Mr. White);
  • Steve Fisher at the February 27, 2018 meeting;
  • Shannon Pollack at the February 27, 2018 meeting;
  • Julie Spitzley at the April 24, 2018 meeting;
  • Glen Szatala at the April 24, 2018 meeting;
  • Gina Woody at the April 24, 2018 meeting;
  • Tony Legando at the May 22, 2018 meeting;
  • Steve Fisher at the May 22, 2018 meeting;
  • Lori Legando at the May 22, 2018 meeting;
  • Bob Howell at the May 22, 2018 meeting;
  • Robert Smith at the May 22, 2018 meeting;
  • Shannon Pollack at the May 22, 2018 meeting;
  • Beth Fisher at the May 22, 2018 meeting;
  • Dr. Brian Murphy at the May 22, 2018 meeting;
  • Shannon Pollack at the October 9, 2018 meeting;
  • Jason Hinners at the November 27, 2018 meeting;
  • Cathy Ramey at the November 27, 2018 meeting;
  • Scott Schlessman at the November 27, 2018 meeting;
  • Shawn Buckley at the December 11, 2018 meeting;
  • Jason Hinners at the December 20, 2018 meeting (not talking about secret payments to Mr. White);
  • Mac Lehrer at the December 20, 2018 meeting;
  • Bob Howell at the December 20, 2018 meeting;
  • Lori Suter at the January 8, 2019, meeting;
  • Shaun Bickley, twice, at the January 8, 2019 meeting;
  • Rebekah Cupp at the January 8, 2019 meeting;
  • Scott Schlessman at the January 8, 2019 meeting;
  • Sandy Legando at the January 8, 2019 meeting;
  • John Zimmerman at the February 12, 2019 meeting;
  • Chuck Allendorf at the February 12, 2019 meeting;
  • Joe Catri at the February 12, 2019 meeting; and
  • Kyle Wright at the April 2019 meeting (Mrs. Hinners specifically referred to how he was treated when asking Mayor Hartung for more time).

Mayor Hartung didn't seem to mind when people other than Stacy Hinners spoke for more than three minutes on topics other than secret payments to City Manager Andy White.

Normally, Mrs. Hinners’s conduct­—like the conduct of these dozens of citizens—would warrant no mayoral backlash, let alone a demand that she be hauled out of Council chambers and criminally charged. Indeed, until Mrs. Hinners, no one had ever been charged or prosecuted in Huron for disturbing a lawful meeting under in the 20-plus years since the court began keeping computerized records.

Why retaliate against Mrs. Hinners? She’s blew the whistle on illegal acts by Huron officials.

Mrs. Hinners alone has been targeted for prosecution. Why? The answer is clear. Mrs. Hinners and her husband are the first and only citizens to hold these officials accountable by suing the City for its violations of Ohio’s Sunshine Laws and speak out about it openly.

In early 2018, Mrs. Hinners and her husband, Jason Hinners, began using the Ohio Public Records Act to gather information about Council’s involvement in plans to open a marijuana shop and pay a developer to take land that City officials had previously promised would sell for millions of dollars. The City refused to turn over certain emails between it and private developers, so the Hinnerses sued—and won. Later that year, the Hinnerses sought records regarding the state auditor’s finding that the City Council, midterm, had unlawfully increased its members' own salaries. (Several Council members and the current and former finance directors were put into collections to pay back the illegal salary increases.) Again, the City refused to turn over those public records to the Hinnerses. Again, they sued. Almost immediately after, the City coughed up the records.

Soon, Councilman Glen Ginesi approached Mrs. Hinners’s pastor to complain about her husband and, according to the pastor in sworn testimony, discourage the church from ordaining him as a deacon because criticizing City Council was “non-Christian.” Armed with records the City had withheld, Mrs. Hinners and her husband filed a follow-up action under the Open Meetings Act to nullify the secret payments the City had made to City Manager White. They sued on May 13, 2019—one day before the meeting where the City initiated this prosecution.

There is no discernible difference between Mrs. Hinners and her fellow citizens regarding their conduct at Council meetings. The only difference is that Mrs. Hinners exercised her statutory and constitutional rights on a topic offensive to Mayor Hartung and his complicit, collaborating officials.

The evidence available indicates that the only people the City will prosecute for violating the Mayor’s capricious meeting expectations are citizens who exercise their rights on topics that offend the Mayor.

Especially given the 24-hour gap between the filing of the Open Meetings Act litigation and the initiation of charges against Mrs. Hinners, the City’s lax approach to enforcing the Mayor’s whimsies against citizens who are not actively challenging Council’s authority or seeking to undo its illegal actions shows the City’s prosecutorial motive is to retaliate against Mrs. Hinners and her husband for their First Amendment-protected activity.

The case bears an uncanny resemblance to the recent U.S. Supreme Court case of Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945, 201 L.Ed.2d 342 (2018).

There, a plaintiff sued his city for First Amendment retaliation based on his arrest at a council meeting, but the trial court instructed the jury there could be no First Amendment violation if the police had probable cause for the arrest, which Lozman had conceded. The Eleventh Circuit Court of Appeals affirmed. But the Supreme Court reversed, holding that even if there was probable cause for an arrest, the First Amendment forbade the City’s attempts to bring charges in retaliation for his protected speech.

The similarities between Lozman and Mrs. Hinners’s case are striking: Lozman was an “outspoken critic” of the government in a small beachfront community who “often made critical comments about officials during the public-comment period of city council meetings” and eventually “filed a lawsuit alleging that the City Council … violated Florida’s open-meetings laws,” leading to a decision by city council members to “intimidate” him in retaliation. When he “violated the City Council’s rules of procedure by discussing issues unrelated to the City and then refused to leave the podium,” council had him charged with disorderly conduct and resisting arrest. The prosecutor found probable cause but dismissed the charges nonetheless.

Huron’s attack on Mrs. Hinners for her speech is even worse. Lozman actually engaged in some criminal conduct and violated an actual set of rules, but Huron is alleging only that Mrs. Hinners violated the mayor’s whimsical expectations.

Subodh Chandra, Mrs. Hinners’s counsel said, “Huron’s contempt for the Constitution is underscored by the video and audio recordings of Council meetings proving they’ve singled out Mrs. Hinners for her protected speech. With today’s filing, we have asked the Court to dismiss all charges and prevent further retaliation in the form of a trial. Our Constitution is too important for this travesty to continue.”

The case is captioned State of Ohio v. Stacy Hinners, Huron Municipal Court Case No. CRB1900126ABC, and is assigned to Visiting Judge S. Dwight Osterud. Mrs. Hinners is represented by Subodh Chandra and Brian Bardwell. The motion to dismiss can be found here.

Mayor Brad Hartung orders the police seizure and ejection of civic activist Stacy Hinners from the May 14, 2019 Huron City Council Meeting after she blows the whistle on Council's illegal secret payments to City Manager Andy White.

Related Practice Areas
First AmendmentGovernment ethics, misconduct, fraud, & abusePolice misconduct & brutalityMalicious prosecution, abuse of process, and false arrest
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