The Volokh Conspiracy
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Probation Condition Requiring Defendant to Remove "F Officer Rose" from His Car
From Monday's decision in City of Conneaut v. Wick, decided by the Ohio Court of Appeals, in an opinion by Judge Robert Patton, joined by Judge Mary Jane Trapp:
Appellant, Francis J. Wick ("Wick"), appeals the decision of the Conneaut Municipal Court, sentencing him to five years of unsupervised community control, a fine of $150, payment of court costs, and 30 days of suspended jail time on the condition that he complete an anger management course and remove "defamatory language" from the back of his vehicle….
This case arises from events that occurred on October 27, 2023. Wick was on Conneaut High School property using vulgar and offensive language in the presence of High School staff members and students. Wick admitted to the trial court that he used profanity towards staff and officials that day. Wick was on the property because he had dropped off his daughter but was later told to return and pick her up.
Wick was angry that his daughter had been suspended from school, and there was some confusion about when she was able to return. After shouting profanities at teachers and officials, Wick squealed his tires and left the High School. When Wick arrived at his nearby home, officers were there waiting for him. Wick continued to shout profanities at officers out the windows of his home. On October 30, 2023, Wick again was at Conneaut High School, where Officer Rose was also present, and he shouted profanity at faculty and Officer rose, and again drove off.
Officer Timothy Rose ("Officer Rose") was present during the October 27, 2023, incident. During Sentencing, Officer Rose advised the trial court that sometime after the incident at the High School and Wick's home, he discovered the words "F Officer Rose" written in metal paint pen on the back of Wick's vehicle. Wick stated at sentencing that his daughter had written the statement on a 1996 Ford Explorer that he owned….
Wick entered a plea of no contest to the Aggravated Disorderly Conduct and Disorderly Conduct charges, and [a] Reckless Operation [of a Motor Vehicle] count was dismissed. On the Disorderly Conduct charge, the trial court fined Wick $100. On the Aggravated Disorderly Conduct count, the trial court sentenced Wick to thirty days in jail, suspended, five years of unsupervised community control, and a $150 fine. The trial court further added the conditions that Wick attend anger management treatment and remove the "defamatory" statement regarding Officer Rose from his vehicle. Wick's appeal to this Court only pertains to the sentence imposed for the Aggravated Disorderly Conduct charge….
The appellate court concluded that the trial court used "defamatory language" loosely, meaning "language that is negative in nature directed at a specific person that diminishes their reputation" (rather than in the legal sense, which would require a false factual assertion, absent in "F Officer Rose"). And the court rejected plaintiff's challenge to the constitutionality of the probation condition, on the grounds that it hadn't been properly raised below.
Judge John Eklund dissented:
I believe this case warrants the exercise of our discretion to review this error despite Appellant's failure to object at the trial court.
While a trial court has discretion "in imposing conditions" of community control, that discretion "is not limitless." … To determine whether a community control sanction is an abuse of discretion, a reviewing court must consider whether the sanction: "(1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation." "All three prongs must be satisfied for a reviewing court to find that the trial court did not abuse its discretion." …
First, I fail to see how the community control condition could be reasonably related to rehabilitating Appellant because Appellant was not the one who put the message on the car. The condition has no redemptive value. The question of whether appellant should have such a message on his car is a separate question from whether the court should order its removal. The best that may be said for the condition is that Appellant might learn not to let his daughter write such things on his car. Or, it might teach Appellant to raise his children to respect police officers. But a failure to respect law enforcement (however odious that may be) is not criminal. Appellant's rehabilitation does not require that he respect Officer Rose. In the end, the goal of a community control sanction cannot be to ensure that defendants, like Winston from George Orwell's 1984, "must love Big Brother."
Second, the condition is not related to the crime for which Appellant was convicted. Appellant was convicted for using "vulgar and offensive language in the presence of students" and "staff members" at the Conneaut High School. The message "F Officer Rose" is not vulgar or profane on its face. The condition can only be said to be related to the crime insofar as Appellant's daughter wrote the message, but we do not even know why she did so (although the reference to it in the record seems to indicate it was related to Officer Rose arresting Appellant). I do not believe such a tenuous relationship satisfies [the relationship-to-crime-of-conviction] prong.
Third, the condition does not relate to conduct that is criminal, or reasonably related to Appellant's future criminality. Again, he did not write it, and, as the majority explains, the message is not defamatory in a legal sense. Its mere presence on the car certainly does not rise to the level of disorderly conduct or any other criminal violation. Apparently, it bothers Officer Rose (apparently not enough to have informed the prosecutor or the court of it until sentencing). It bothers me, too. But, the expression of that opinion – disrespectful as it may be – cannot be said to be reasonably related to Appellant's future criminality.
Because the community control sanction fails to satisfy each of the three prongs of the Jones test, I would hold that the trial court abused its discretion by imposing the condition to remove the message "F Officer Rose" from Appellant's car.
