Restraining Order Based on Unwanted Online Contact Upheld, but Weapons Restriction Struck Down

In Monday's Lazor v. Souders (opinion by Judge Michael Powell, joined by Judges Stephen Powell & Matthew Byrne), the Ohio Court of Appeals upheld a stalking protection order against Souders, based on his deceptively trying to contact a woman he met online, and who had said she didn't want him to contact her:

On or about May 18, 2023, appellant and Lazor began talking on the online dating app "Hinge." As their communications progressed in a positive manner, appellant asked that they move their conversation to Facebook. In response, Lazor asked for appellant's last name so she could conduct a Google search on him. Appellant told Lazor that his last name was Sowders. After a Google search yielded no results, Lazor agreed to communicate with appellant on Facebook.

After interacting for a while on Facebook, appellant asked Lazor for a date. Prior to responding, Lazor decided to investigate appellant further to make sure she was safe going on a date with him. Consequently, Lazor posted appellant's photograph on a "private Facebook community for women." The Facebook group was created for women to post photographs of men and for other women in the group to provide any information, including "red flags," they may have on the individual depicted.

Lazor posted appellant's photograph on May 20, 2023. Several women in the private Facebook group reported negative interactions with appellant, and some indicated he was hostile and dangerous. Upon receiving this information, Lazor blocked appellant on Hinge and Facebook. Appellant then found Lazor on Instagram on May or May 22, 2023, even though Lazor had never provided appellant her Instagram name or handle. Upon finding Lazor on Instagram, appellant messaged her and called her out for blocking him on Hinge and Facebook. Lazor did not respond to appellant's message and instead instantly blocked him on Instagram.

On June 7, 2023, Lazor received a message on Facebook from Tatiana Koblinski. It is undisputed that the Tatiana Koblinski Facebook account was a fake Facebook account appellant had created and which he used to message Lazor. Using that Facebook account, appellant messaged Lazor, claiming that the information she had received from the private Facebook group was not true. Appellant also used the fake Facebook account to "text yell" at Lazor for blocking him on other social media platforms.

Appellant's messages began on the morning of June 7, 2023, and continued into the early morning hours of June 8, 2023. Appellant called Lazor on Facebook at 12:a.m. on June 8, 2023, and last messaged her at 2:a.m. on June 8, 2023. Lazor did not respond to appellant's numerous messages or his call. Sometime on June 8, 2023, Lazor eventually told appellant to stop contacting her or she would call the police. On June 15, 2023, Lazor was served with a defamation lawsuit appellant had filed in Hamilton County. A few days later, Lazor received a cease-and-desist letter appellant had mailed on June 8, 2023.

On June 20, 2023, Lazor petitioned the trial court for and was granted an ex parte civil stalking protection order ("CSPO"). On July 5, 2023, the matter proceeded to a full hearing before a magistrate. Both parties testified. Lazor admitted that appellant had never threatened her. She testified to the effect appellant's conduct had on her, stating she was not sleeping well, she had trouble focusing at work, she feared for her safety because appellant knew where she lives, and she was terrified of being contacted via other fake accounts, including from appellant. Lazor further testified that the incident caused her to change her behavior because she is now reluctant to respond to people reaching out to her online unsolicited.

Appellant testified he never made implicit or explicit threats to Lazor and simply asked that she take down the photograph she had posted on the private Facebook group page. Appellant testified that Lazor did not tell him to stop contacting her until he messaged her on the fake Facebook account. Prior to that time, Lazor had concocted a story about her sister's cancer diagnosis, and whether Lazor had blocked him on Facebook or had deleted her Facebook account due to her sister's "illness," he reached out to her on Instagram out of concern. Appellant denied stalking Lazor and testified he did not have any intent to cause her harm or mental distress.

On July 12, 2023, the [trial court] issued a decision granting Lazor a one-year CSPO and prohibiting appellant from possessing, using, carrying, or obtaining any deadly weapon for the duration of the order….

The court held that the order was justified:

A petition for a CSPO is governed by R.C. 2903.214. It requires the petitioner to establish by a preponderance of the evidence that the respondent engaged in conduct constituting menacing by stalking. "When assessing whether a civil stalking protection order should have been issued, the reviewing court must determine whether there was sufficient credible evidence to prove by a preponderance of the evidence that the petitioner was entitled to relief." …

Menacing by stalking is defined as "engaging in a pattern of conduct [that] knowingly cause[s] another person to believe that the offender will cause physical harm to the other person * * * or cause mental distress to the other person[.]"In determining whether to grant a CSPO, the trial court must view the actions with respect to their effect on the petitioner….

Upon reviewing the record, we find that the evidence presented was sufficient to establish that appellant knowingly engaged in a pattern of conduct that would cause Lazor mental distress. During the hearing, Lazor testified that after she blocked appellant on Hinge and Facebook on May 20, 2023, and on Instagram the following day, thereby taking significant steps to ensure appellant could not contact her, he subsequently used a fake Facebook account to message her multiple times and call her once throughout June 7, 2023, through the early morning hours of June 8, 2023. Lazor testified that while the fake Facebook account ostensibly belonged to a woman, she knew the messages and Facebook call came from appellant. Lazor testified that appellant used the fake Facebook account to "text yell" and confront her about her post.

While appellant testified he did not know Lazor had blocked him on Hinge prior to contacting her on Instagram, he admitted he knew he could not contact her on Facebook because he had either been blocked or Lazor had deleted her Facebook account. Appellant did not rebut Lazor's testimony that his Instagram message confronted her about blocking him. Appellant claimed that all his contacts on social media platforms were either regarding dating and well-being checks on Lazor given her sister's "illness" or to request that she remove her post from the private Facebook group. Appellant admitted he knew Lazor had blocked him on Facebook and Instagram prior to utilizing the fake Facebook account. Appellant claimed the fake Facebook account was an old account he had created for private investigation purposes.

It is not unusual for a trial court to hear conflicting testimony from two different parties. While we acknowledge appellant's testimony explaining or denying his conduct, it was up to the trial court to determine the weight and credibility to afford Lazor's version of the events versus appellant's version. "A trier of fact is free to believe all, part, or none of the testimony of each witness." … Upon review of the record, we decline to substitute our judgment for that of the trial court. Appellant had knowledge he had been blocked on several social media platforms and knowingly used a fake Facebook account to contact Lazor and "text yell" and confront her about her post.

We further find that the evidence presented was sufficient to establish that appellant's actions caused Lazor mental distress. Contrary to appellant's assertion, the trial court's finding that Lazor suffered mental distress was not solely based upon her testimony that she had trouble focusing at work and was not sleeping well. In addition to this testimony, Lazor also testified that she is scared for her safety as appellant knows where she lives, and is terrified of being contacted via other fake social media accounts, including from appellant. Lazor further testified to changing her behavior on how she communicates with others online as she is more apprehensive to respond.

But the court concluded that the prohibition on possessing weapons was unjustified:

Pursuant to [18] U.S.C. 922(g)(8), it is unlawful for any person "who is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner" to possess any firearm or ammunition….

We find that the trial court erred in including the firearm restriction in the CSPO against appellant. It is undisputed that the parties have never met in person and that the only personal contact between them occurred during the full hearing. Under any definition of the term, Lazor is not and never was an "intimate partner" of appellant. Therefore, [18] U.S.C. 922(g)(8) does not apply and does not support the imposition of the firearm restriction.

We further find that the evidence in the record does not support the imposition of the firearm restriction under R.C. 2903.214(E)(1). No evidence was presented that appellant used or threatened to use a weapon to cause mental distress to Lazor. No evidence was presented that appellant even owned a firearm. The firearm restriction therefore does not bear a sufficient nexus to the conduct the trial court was attempting to prevent.

Comments

[OtisAH]

Meh, what’s one woman’s safety when compared against the god-given individual right to own an arsenal under almost any condition? Besides, they’ve only met the once, and I’m sure he’s learned his lesson, so obviously he will never pursue this woman any further. That’s just logic.

[Rossami]

According to the facts presented above, they never met in person at all. All interactions were online. And while less than civil, even this court concluded that there were no threats to the woman's safety at all.

But sure, let's eviscerate enumerated rights on the basis of paranoid conspiracy theories. Nothing could possibly go wrong with that logic.

[Dilan Esper]

It's not an enumerated right issue. I am not at all convinced that stalkers, even online stalkers, have the right to keep arms. But it doesn't matter, because that federal statute applies only to intimate partners, and an online stalker is not an intimate partner. No 2nd Amendment analysis needed.

[Brett Bellmore]

"I am not at all convinced that stalkers, even online stalkers, have the right to keep arms. "

Are you talking here of people criminally convicted of felony stalking? Because this guy wasn't.

[Dilan Esper]

I'm talking about people who are not law abiding citizens and are thus outside the community of the "people" who Scalia said were covered by the 2A. The test was whether they were law abiding, not whether there is a criminal conviction (and certainly not a felony conviction-- I don't know WHERE you got that from).

[Brett Bellmore]

“The test was whether they were law abiding, not whether there is a criminal conviction (and certainly not a felony conviction.”

But, what’s your test for who the test is satisfied by?

The government needs a procedure for determining that somebody isn’t law abiding. I’d argue that procedure is, just exactly, convicting them of a crime.

[Dilan Esper]

Here's my basic view. The moment someone commits a crime involving violence (and stalking qualifies-- stalkers are dangerous), that's when you forfeit your right. However, there's a separate due process issue of how it will be determined that you forfeited your right.

Substantively, I think the legislatures can say stalkers can't have weapons and then institute a process for proving the stalking charge, similar to how domestic violence is handled. But the problem here is Congress didn't do this and non-intimate partner stalkers are not covered.

[Brett Bellmore]

"But the problem here is Congress didn’t do this and non-intimate partner stalkers are not covered."

This gets our basic constitutional structure backwards. Remember, we have a federal government of enumerated powers, while, as underscored by the 10th amendment, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Any topic you might name at random, unless the federal Constitution assigns Congress authority over it, is entirely a state concern. In particular, the federal government lacks the "general police power", outside of DC and land purchased within a state with the permission of a state legislature.

So, the problem here isn't that Congress didn't enact a law disarming non-intimate partner stalkers. The problem, constitutionally, is that they DID enact a law disarming intimate partner stalkers, and they had no constitutional authority to do so.

You should be directing your complaint to state legislatures, not Congress.

But, of course, the state legislatures don't have an entirely free hand here, either; "nor prohibited by it to the States". Here we're talking about a law that would deprive people of a fundamental civil liberty. That it might be a civil liberty you don't approve of is irrelevant, civil liberties are not lightly taken away from people.

So, yes, a felony conviction.

[John F. Carr]

Does "knowingly" mean knowing of the consequences of the conduct, or knowing that the person seeking the restraining order will learn of the conduct? He knew he was contacting her. The evidence does not appear sufficient to me to prove he knew he was causing mental distress.

[post hoc ergo propter hoc]

(B) A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact. https://codes.ohio.gov/ohio-revised-code/section-2901.22

the above is pretty straightforward, but to add, it's conduct plus results, so it means his contacting her through fake account after (knowing) he was blocked (conduct) would likely scare her and it did in fact scare her (results). misdemeanors are usually only one or other, conduct or results, but more serious ones are both.

[SRG2]

The nearest one can get, I think, is to penalise the violation of a restraining order as a felony that among other things will result in loss of the right KBA.

[ReaderY]

Agree this result is straightforward, the conduct clearly fell outside the statute’s plain terms, so there is no need to consider what the 2nd Amendment requires.

[Rev. Arthur L. Kirkland]

This blog has some strange fixations . . . unless the target audience members (or the operators) are awkward adolescent boys of all ages.

[Brett Bellmore]

Wrong place

[Longtobefree]

"private Facebook community for women."

Sexist AND transphobic. How can the book of faces allow this hateful and dangerous activity?

[mulched]

"...she is now reluctant to respond to people reaching out to her online unsolicited."

It's a bad way to learn it, but it is a good thing to learn.

[theobromophile]

Mental distress is hard to explain or quantify. I dated someone in college (who went to a different college) who was a controlling SOB during the few months we dated and stalked me after I broke up with him. Endless "wellness checks" (he stated that he would drive to my campus and my dorm room to check on me if I stopped responding to his messages because "maybe your dorm blew up"), endless fake accounts, fake accounts to talk to my roommate, calls after calls, and threats to show up if I didn't keep picking up the phone. A year later, he showed up at a dance at a downtown hotel to see if I was there. Horrifyingly, when I ran into him at a political event over ten years after breaking up with him, he continued to harass and follow me.

The brain is on constant high alert. It's hard to live for weeks or months, wondering when the next shoe will drop. Lack of contact is an excuse for them to reach out (concern!), and of course any bare minimum contact is an excuse to engage, clarify, "I thought when you messaged me tell you to leave me alone that you meant messaging was okay." From a mental perspective, you never feel safe, and the places you are supposed to feel safe (home) is a place that feels riddled with threats. Our brains really don't do well with that....

[jdgalt1]

Some people "don't feel safe" for irrational and/or pathological reasons. (I am not so asserting for this particular case.) Therefore due process ought to be read as giving the target of a proposed restraint order the right to a hearing before the order is given, or at least before any enforcement of it can take place. Otherwise all disputes end up effectively won by the party who is the more outrageous Karen.

[theobromophile]

You missed the point. The plaintiff is talking about things like feeling unsafe interacting with new people online. That's because it actually hard to describe the psychological impact (to a reasonable person) of a relentless stalking campaign.