The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

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

“especially a law enforcement officer acting according to their official responsibilities.”


From State v. Locke, decided Thursday by the Ohio Court of Appeals, in an opinion by Judge Sean Gallagher, joined by Judges Mary Boyle and Michelle Sheehan:

On the evening of the debate between the then-candidates for President of the United States in September 2020, Locke participated in a protest near the debate area. Locke was detained by police officers for a reason that has not been explained by the record or the parties. During this detention, Locke "kneed" Sergeant Sean Dial after he asked her to sit down. Locke was arrested and charged with a violation of R.C. 2903.13(A) for attempting to or actually inflicting physical harm upon a law enforcement officer, a fourth-degree felony offense and an enumerated "offense of violence" under R.C. 2901.01(A)(9). Locke was one of only two arrests made on the evening of the presidential debate.

During the pretrial proceedings, Locke's attorney of record negotiated a plea arrangement with the state. Approximately one month before the scheduled trial date, at the final pretrial conference, Locke agreed to plead guilty to obstruction of official business under R.C. 2921.31, a felony of the fifth degree because Locke agreed that her violation created "a risk of physical harm to any person." There is no dispute that the trial court conducted a thorough and complete plea colloquy under Crim.R. 11, which included, in pertinent part, Locke advising the court that she was satisfied with her attorney's representation during the pretrial proceedings.

During the sentencing hearing, postponed to permit the victim's attendance, Sgt. Dial stated that he did not provoke or otherwise instigate Locke's attempt to hurt him. In fact, nothing in the record indicates that any force, much less unreasonable or excessive force, was used to detain Locke. For her part, at the time of sentencing Locke accepted responsibility for her conduct and apologized to Sgt. Dial for not "paying [him] the respect [he] deserve[s], not only as a police officer, but as a human being." After considering the statements and the record, the trial court sentenced Locke to serve a one-year term of community control sanctions that included ten days of jail that were served in Cuyahoga County Jail over the course of five subsequent weekends, fines, and court costs. Locke did not directly appeal her conviction.

One month after being sentenced, Locke retained new counsel who filed a motion to withdraw her guilty plea. In her motion, Locke claimed her previous attorney failed to adequately represent her and explain the ramifications of her pleading guilty to a fifth-degree felony offense. "Without divulging specific facts related to the incident," Locke claimed that her attorney failed to explain the existence of certain challenges to her initial detention, failed to disclose that her case implicates rights guaranteed under the First Amendment, and that her defense counsel failed to "defend the charge on the elements of the offense itself."

Further, Locke had become concerned about the impact the felony conviction will have on her future; she claimed in her appellate briefing that a college scholarship she received from The School of Art Institute of Chicago, beginning in the fall term of 2020, had been retracted as a result of the 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 concerns with what her trial counsel did not explain are misplaced, even if accepted as true.

No one has a First Amendment right to physically assault another, especially a law enforcement officer acting according to their official responsibilities. Wisconsin v. Mitchell, (1993) ("A physical assault is not … expressive conduct protected by the First Amendment"), and NAACP v. Claiborne Hardware Co. (1982) ("The First Amendment does not protect violence"). Further, as it pertains to law enforcement officers, under well-settled Ohio law, "'[i]n the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances.'"

Although we emphasize that there are no arguments, much less any supporting evidence, that police officers illegally detained Locke before her assault, even if we took the extraordinary step of presuming the invalidity of the initial detention against which Locke claims she could defend on the merits, the outcome would be the same.

Irrespective of the circumstances leading to her initial detention and arrest, her unprovoked use of physical force in response to a benign request is not justified, nor would it be excused under First Amendment jurisprudence. More to the point, even if Locke could legally challenge the initial detention, the legality of her initial detention would not have justified her unprovoked conduct in attempting to strike or actually striking a police officer, which in and of itself 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. Regardless of the nature of the initial detention, the First Amendment does not preserve an offender's right to physically assault a law enforcement officer. 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….

From the limited record presented, Locke's unprovoked aggression was the result of being told to sit down and, therefore, cannot be considered the product of a struggle in which it could be claimed that the strike was "accidental." Locke's unspecified claim to having defenses to the merits of the assault charge and arrest are without merit. 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….