Government Official's Attempt to Use an Anti-Stalking Order Against a Citizen

I've written about some other such cases in my Overbroad Injunctions article; this case involves a somewhat different set of facts than the ones I discussed there, but I thought it worth noting as well. (I agree that some citizen behavior related to officials—such as violence or true threats of crime—should indeed be enjoinable and even criminally punishable; but, unsurprisingly, protective order statutes that aren't limited to violence or true threats are sometimes used to target behavior that isn't violence or true threats.)

From Frenchko v. Shook, decided Monday by Ohio Court of Appeals Judge Eugene Lucci, joined by Judges Mary Jane Trapp and Robert Patton; note that the opinion is long, and this excerpt necessarily omits some details about Shook's background (and alleged past mental health problems):

On November 14, 2023, {Niki (Michele Nicole)} Frenchko, a Trumbull County Commissioner, filed a petition requesting the trial court to issue a CSPO {Civil Stalking Protection Order} against appellee, Shawn Shook, a resident of Warren Township in Trumbull County, Ohio, who frequently attends the commissioners' meetings.

The trial court denied the CSPO request, and the Court of Appeals affirmed that decision. Here's an excerpt from Frenchko's factual allegations:

Frenchko provided evidence pertaining to Shook's behavior and comments at commissioners' meetings and other events during this time period. Frenchko introduced into evidence video of portions of the commissioner's meetings at which Shook made comments after the public was invited to speak on matters "for the good of Trumbull County."

In his comments, Shook questioned Frenchko as to her mental health; maintained that her behavior of "playing with [her] hair, taking [her] glasses on and off, shuffling [her] papers, [and] scraping out [her] fingernails" were "games" and part of her "playbook"; maintained that Frenchko had criticized others for not coming to work or not parking in the correct locations, when Frenchko herself did not come to work and parked in designated handicapped spaces. During these comments, Shook made references to Frenchko's attendance at events outside of the commissioners' meetings.

During her testimony, Frenchko maintained that Shook's comments at the commissioners' meetings were unrelated to county business, and she believed Shook's intent was to intimidate her and to demonstrate to her that he was tracking her whereabouts. Further, Frenchko maintained that Shook obtained some of the information related to her location from her personal Facebook page, which she had blocked him from viewing.

However, Shook maintained that his comments were related to Frenchko's use of the handicapped parking spaces and her failure to attend workshops or training that had been scheduled for the commissioners. Specifically, Shook referenced Frenchko dancing at a festival in support of his position that it was unnecessary for Frenchko to utilize handicapped parking spaces. Shook acknowledged that he had multiple Facebook accounts, and he was able to view Frenchko's public posts on her personal page using a different account than the one Frenchko had blocked. He also acknowledged that much of his information as to Frenchko's whereabouts was available from groups and other individuals on Facebook.

In a video of a portion of the commissioners' meeting held on November 15, 2023, the day after Frenchko filed her petition for a CSPO, but prior to the issuance of the ex parte order, Shook placed a sign on the dais in front of Frenchko's phone, which was recording the audience while the commissioners exited the room to go into executive session. The sign blocked the video recording until Frenchko removed it.

In addition to the evidence regarding Shook's comments and conduct at the commissioners' meetings, evidence was presented as to two other functions at which Frenchko and Shook were both present—a county GOP petition signing event and a Warren City Council meeting.

With respect to the GOP event, Shook arrived at the event approximately one to two hours prior to Frenchko. Frenchko maintained that when she arrived at the event, Shook "lurk[ed]" wherever she went and stared at her; although other evidence indicated that Shook remained standing or sitting behind the county GOP secretary. A witness for Frenchko who had attended the event with her maintained that Shook was the only member of the public that she observed remaining in a singular location during the event. Frenchko's witness testified that, although other individuals were taking photographs during the event, the county GOP chairperson informed Frenchko that she needed to stop photographing or leave.

Thereafter, the GOP secretary called police officers at the direction of the chairperson, and, after the secretary indicated that the officers were on their way, Frenchko walked to the parking lot. Frenchko testified that she was unaware whether Shook remained at the event after she left, and she acknowledged that she had no evidence indicating that Shook was aware in advance of his arrival that she would be present at the event. However, Frenchko maintained that a reasonable person would have assumed she would be present.

With respect to the Warren City Council meeting, Frenchko testified that she was present at the council meeting held on November 8, 2023, and Shook was also present at the meeting, although he was not a resident of the city. Shook did not speak at the meeting, and Frenchko testified that she believed he was there for no reason other than to follow and intimidate her. After the meeting, Frenchko waited for Shook to leave the meeting before her, but, as she was exiting the building, she observed Shook speaking to another individual outside of his car, which was parked across from Frenchko's car.

Frenchko asked an officer to accompany her, and the officer agreed to observe from outside the building's door until she left. Frenchko walked to her car, but she maintained that she waited outside of her car door because she wanted Shook to leave prior to her. When the individual with whom Shook had been speaking walked away from him, that individual then stopped to speak to Frenchko, and Shook entered his car. Frenchko maintained that Shook then drove slowly through the parking lot and exited. Due to her concern regarding Shook's behavior, Frenchko took an alternate route home.

During Shook's testimony, he maintained that he attended the November 8, 2023 council meeting because he planned to speak regarding pay raises. However, Shook was unaware that he was required to complete certain paperwork and to be a city resident in order to comment. Shook provided the paperwork that must be completed to be able to speak at a Warren City Council meeting as an exhibit. Further, Shook called a witness who had been present at a Warren City Council meeting which Shook attended prior to the November 8, 2023 meeting. This witness testified that Frenchko was not present at this prior meeting.

And the court of appeals' analysis:

Based on the above evidence, following the full hearing, the trial court determined that Frenchko failed to meet her burden of demonstrating by a preponderance of the evidence that Shook engaged in the type of conduct proscribed by the menacing by stalking statute. Within its findings of fact and conclusions of law, the trial court noted the lack of civility currently present in political discourse and advised Shook to not engage in behavior that could be considered menacing by stalking.

However, the trial court specifically noted Frenchko had failed to prove in this case that Shook "stepped over the line" from engaging in political discourse to menacing by stalking. The court noted that Shook had not approached or threatened Frenchko, the parties were present at public events, and there was no evidence of Shook following Frenchko to ascertain her whereabouts.

After our review, we cannot say the evidence weighed heavily in support of finding that Shook, by engaging in the conduct described above in the latter half of 2023, knowingly caused Frenchko's fear of physical harm or mental distress. Thus, the trial court's denial of the CSPO was not against the manifest weight of the evidence….

Here's the relevant excerpt from the Ohio menacing-by-stalking statute:

(A)(1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or a family or household member of the other person or cause mental distress to the other person or a family or household member of the other person….

"Pattern of conduct" means two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents, or two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents, directed at one or more persons employed by or belonging to the same corporation, association, or other organization….

["[M]ental distress" means any of the following:]

(a) Any mental illness or condition that involves some temporary substantial incapacity;

(b) Any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services.

Comments

[ReaderY]

I see two issues here.

First, I wouldn’t see the entirety of Mr. Shook’s behavior as protected by the First Amendment. A significant portion of it involves conduct, not speech. Mr. Shook basically hung around Mr. Frenchko a lot, gathering information about her.

Information-gathering simply isn’t a fully-protected activity. Mr. Shook is not entitled to install a camera in Ms. Frenchko’s shower, for example, to gather information about her. Lower-technology versions of doing so have been considered conduct, not speech, for a very long time. People are just not entitled to gather information in ways that unduly intrude on or interfere with others. And the boundaries of legitimate vs. illegitimate information gathering are not, I think, to be entirely set by federal judges interpreting the constitution serenely above and independent of the wants and needs and doings of general society.

Second, whenever people get upset when other people do things, there is always a question whether A upset B, or whether B got upset about A. Are black people sitting in the front of the bus an intrusion on white people’s legitimate expectation of and right to safe spaces that makes them justifiably uncomfortable? Or is white people’s discomfort when black people go outside customary boundaries unwarranted bigotry? One can always look at things from either perspective.

In our society, at least a significant portion of women tend to feel uncomfortable when men who behave in ways they perceive as creepy hang around them a lot and pay them a lot of attention, and do things like follow them, stare at them, gather information about them. Are women simply being bigots by doing this? Is their discomfort the same discomfort as the discomfort white people feel when black people sit in the front of the bus? Because objectively, so far as physics and physiology and neural psychology is concerned, it IS the same discomfort. It is context and culture that decides who (if anyone) should be considered in the right and who in the wrong.

So portraying a case like this as a government official attempting to abuse law to prevent an amateur journalist’s legitimate information -gathering efforts about government workings doesn’t strike me as the entirety of the story. Ms. Frenchko’s point of view – this guy is a creep who keeps following me out of some sort of perverted interest in me that seeks to intimidate and control me – strikes me as not necessarily entirely wrong.

More fundamentally, it is not clear to me that in cases like this, whose view should prevail ought to be decided entirely by federal judges, or male law professors, applying legal precedents and case law to derive and attribute stereotypical motives to either Mr. Shook or Ms. Frenchko that may quite well have nothing whatsoever to do with either’s real motivation or concerns. Or what’s really going on, from either’s point of view, in a case like this.

This is not to say Ms. Frenchko is wholly in the right here. But I wouldn’t assume Mr. Shook is, either.

[Rossami]

re: "Mr. Shook basically hung around M[s]. Frenchko a lot, gathering information about her."

So, did what journalists everywhere do all the time. And you don't think that has any First Amendment implications?

And that's before you consider that that's what Frenchko alleges Shook did - an allegation that the court said she failed to prove.

Your counter-examples all involve surveillance of places where you have a reasonable expectation of privacy. Government meetings, public events and your public facebook page are not those places.

To your other hypothetical, if you get creeped out when a man looks at you a particular way but do not get creeped out when a woman looks at you the same way, yes that's a 'you' problem. Ditto when you get creeped out because it's an unattractive guy but not when it's Brad Pitt doing the same thing. It's your bigotry so get over it. But if you can't get over it, you certainly don't get to use the overwhelming coercive power of government to enforce your bigotry.

[ReaderY]

I’ll just briefly point out I said Ms. Frenchko’s “point of view” “is not necessarily entirely wrong” There’s a lot of gray between completely endorsing her perspective and completely endorsing Mr. Shook’s perspective that Ms. Frenchko intentionally trumped up bogus charges to prevent a journalist from finding out the truth about government doings.

And because I read Professor Volokh’s choice of title to this post as taking entirely Mr. Shook’s point of view, I feel entitled to admonish him, as a long-term commentator on his blog, to be a bit more neutral and circumspect about who’s right and who’s wrong in these cases.

Doubtless the Ms. Frenchko’s of this world might think that his blog tends to attract a certain share of creeps and their lawyers, folks (like you) who have no problem saying that women who treat creeps approaching them differently from Brad Pitt approaching them are committing discrimination that ought to be prohibited by law.

Perhaps they’re right. Perhaps nobody should be allowed to act on their body’s instinctive sense of wrongness and danger. Perhaps all such instinctive feelings represent bigotry. Perhaps fairness and rights really mean that we all have to be forced to go through life feeling helpless and miserable.

[Drewski]

Well, this wasn't a First Amendment case; it was resolved by the statute that required fear of physical harm or actual mental distress (as defined). I agree with you that 1A is underprotective of normal people just going about their business sometimes, but this case isn't the one to demonstrate that.

[TwelveInchPianist]

"Information-gathering simply isn’t a fully-protected activity. Mr. Shook is not entitled to install a camera in Ms. Frenchko’s shower, for example, to gather information about her."

Huh? He's not entitled to enter her shower to express his opinion about her or put up posters in her shower either.

He's not allowed to enter her shower to practice his religion, or his right of intimate association.

The fact that he can't do a certain thing in her shower doesn't mean that the activity isn't protected, it means that it's her shower.

[Stephen Lathrop]

Stop treating the Court as the nation's ultimate policy maker and the proliferation of opinions will recede.

[GrahamSchiff]

There are two ongoing cases in federal habeas right now, regarding government officials using stalking laws to silence citizens.

In Washington state/9th Circuit there is Eggum v. Holbrook, where a man was given a total of 20 years for writing letters to prosecutors that talked about releasing a porn tape against someone's will, statements which were legal. The state courts rigged everything against him, and the District affirmed:https://casetext.com/case/eggum-v-holbrook-2

The state is still trying to overcome free speech, as a means of retaliation:
https://www.youtube.com/watch?v=DX7GCntfCj4

[Greenspa]

Nice to hear this

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