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IN THE SUPREME COIJRT OF OHIO
City of Cincinnati,
Plaintiff-Appellee,
vs.
Joshua K. Katz,
Defendant-Appellant.
On Appeal from the HamiltonCounty Court of Appeals,First Appellate District
Court of AppealsCase No. C-081194
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT JOSHUA K. KATZ
Raymond L. Katz (0073655)15 E. Eighth StreetCincinnati, Ohio 45202(513) 254-4099FaxNo. (513) [email protected]
COUNSEL FOR APPELLANT, JOSHUA K. KATZ
John P. Curp (0064782)City of Cincinnati SolicitorEmest F. McAdams (0024959)City of Cincinnati ProsecutorJennifer Bishop (0014934) (COUNSEL OF RECORD)City of Cincinnati Assistant Prosecutor801 Plum Street, Room 226Cincinnati, Ohio 45202(513) 352-4708Fax No. (513) 352-5217
COUNSEL FOR APPELLEE, CI'1'Y OF CINCINNATI
ORi ^AL
TABLE OF CONTENTS
PM
EXPLANATION OF WHY THIS CASE IS A CASF, OF PUBLIC OR GREATGENERAL INTERES'f AND INVOLVES A SUBS'I'AN"f1ALCONSTI'TUTIONAL QUESTION ............................................................................... 1
STATEMENT OF THE CASE AND FAC1'S ............................................................. 2
ARGUMENT IN SIJPPORT OF PROPOSITIONS OF LAW ........... ......................... 8
Proposition of Law No. I: Where appellant's speech for which liewas an•ested consisted of remarks addressed to police officers,caused no one to express inconvenience, annoyance, or alarm,did not create a risk of hartn, and did not amount to `fighting words,'the appeals court eired in aifirining his conviction fordi sorderl y conduct . ........................................................................................ 8
Proposition of Law No. II: Where appellant did not act recklessly, andneither the trial court or the appeals court made a finding that appellantacted recklessly, and where appellant had a lawful and reasonablepurpose for his conduct, he cannot properly be convicted of disorderlyconduct ander R.C. 2917.11 .......................................................................... 13
CONCLUSION ........................................................................................................... 15
CERTIFICATE OF SERVICE .................................................................................... 16
APPENDIX Appx. Page
Judginent Entry of the Hamilton County Court of Appeals(Sept, 16, 2009) .............................................................................................
EXPI.ANATION OF WIIY THIS CASE IS A CASE OT PUBLIC OR CREAT GENERALINTERESTAND INVOLVESA SUBSTANTIAL CONSTITUTIONAL QUESTION
The case raises a substantial constitutional qucstion because the judgment entry of tbe
court below erroneously affimis a disorderly conduct conviction based on the content of
appellant's protected speech. According to both of the state's police witnesses, appellant's
speech consisted largely of references to case law. Moreover, the speech for which appellant was
arrested was uttered in questioning his continued detention after the conclusion of an assault
investigation, and it was directed at police officers. In addition to these facts, one or both of the
state's police witnesses testified to the following: (1) no one expressed annoyance or alarm due
to appellant's speech; (2) at no time did appellant verbally or plrysically threaten anyone; (3)
none of appellant's words would by their veiy nature have inflicted injury; (4) none of
appellant's speech would have provoked a reasonable police officer to an immediate retaliatory
breach of the peace; (5) appellant eoinplied at all times with the duties and responsibilities of his
concealed cariy license; (6) appellant did not offer any physical resistance when police took the
weapon he was legally entitled to carry, nor did lie resist arrest; and (7) appellant did everything
police officers told him to do from the first moment of their ar-rival on the scene to the tinie of his
arrest. Moreover, appellant's speech and conduct had a lawftil and reasonable pmpose since he
was overseeing the safety of people attending a fratemity party and, after seeking police
assistance to prevent injury to another, he was ordered by a police officer to help clear the crowd.
On this record, the appeals court's judgment entry aflirming appel.lant's conviction for disorderly
conduct comprises an erosion of fundamental constitutional protections for freedom of speech.
And it is at odds with the First District's own precedent.
1
Appellant Joshua Katz did everything he was told to do by police officers--and he was
arrested for it. The case, therefore, also presents an issue regarding wliether a person can assist a
police officer when asked to do so without being imfairly subjected to criminal liability as a
result of such cooperation. And it raises an additional concern about police vindictiveness and its
effect on the public's ability to trust its law enforoement officers.
During the trial, Officer Finley testified that appellant complied fully with the
requirements of his concealed carry license and that appellant was not subject to any weapons
violations. Nevertheless, before the trial, Finley told appellant's counsel that the police would
"come after" Katz's concealed cariy peiviit if lie did not plead as charged.
Moreover, Sergeant Caton gave false testimony, presumably in an eff<rt to depict
appellant as trigger-happy. Caton stated that when his officers confiscated Joshua's weapon, they
found an extra magazine. That testimony was throughly refuted by the certified copies of the
evidence inventory that appellant attached to his sentencing memorandum (which was
specifically referenced by the trial court prior to sentencing). The documents on the record
certified by the Police Property Room persomlel clearly indicated that, at the time of his arrest,
appellant carried only the single magazine inserted in his weapon.
S1iITEMENT OF THE CASE AND FACT.S
Appellant Katz Katz appeals from the judgement entry of the Hamilton County Court of
Appeals, entered September 16, 2009, and affirming his conviction for disorderly conduct under
R.C. 2917.11(A). Appellant was convicted of a 4`-class misdemeanor, the so-called "persistent"
disorderly conduct, following a bench trial in the Hamilton County Municipal Court.
The record shows that on the evening of June 7 through the morning hours of June 8,
2
2008, appellant Katz Katz was supervising an effort to ensure the satety ol'his fellow Alpha
Epsilon Pi fraternity menibers and their guests at a large party being held at the L1EI1 house on
private property near the University of Cinciimati campus on Clifton Avenue. A decorated Navy
veterau who served on a guided missile cruiser and took part in this counh•y's initial military
campaign against the Taliban regime in Afghanistan, appellant had the full confidence of his
fraterruty brethren. They knew that Katz didn't use alcohol or drugs and they looked to him to
oversee safety at fraternity parties in part due to his military experience but also on account of his
maturity and good sense.
On this occasion, Katz was supervising two of his fcatenlity brothers, Jordan McCrate and
Nate Dumtchin (who also eschewed alcohol and drugs), as they endeavored to "make sure
everyone feels safe and everything is safe" at the party. Dutntchin testified about why he and the
other fraternity members relied on appellant's ability to provide that oversight: "Josh has kind of
been a big brother figure to the rest of us in the fraternity **" he's very, very reliable and he's
never steered us in the wrong direction. And lle always tries to look out for what is best for our
organization and the people in our organization."
Shortly after midnight, Katz found it necessary to escort a dn.uik and belligerent young
woman nanied Nyla Pica out of the AEII house. A few minutes later, Katz observed Ms. Pica
getting into a fight with a man on the grounds nearby. Fearing for the woman's satety and
realizing he had no authority to intervene, Katz took Jordan McCrate with him onto Clifton
Avenue and, using a flashlight, they flagged down a police car.
Katz told the ofiicer, Thomas Finley, about the situation he'd witnessed with Ms. Pica
and explained that he and McCrate were non-drinking, drug-free members of the fraternity who
3
provided safety oversight. Katz also told Officer Finley that he was carrying a weapon pursuant
to his valid Ohio license to cany a concealed weapon (CCW). Katz had two reasons for canying
his weapon that night. First, his car was parked six blocks away in a high-crime area. There was
also the remote yet ever-present possibility that someone nright attack his all-Jewish AEII
fraternity. Finley indicated that he was "fine" with Katz's CCW aard he pulled his cruiser into a
driveway near the AEII house.
Finley testified that the fight involving Ms. Pica "is breaking up" as he arrived. But,
seeing that there was a large, um-uly crowd on the grounds (other fi•ater7iity houses in the area
also were hosting parties that night with loud music), Finley testified that he radioed for back-up:
"I put it out on the radio I have a large - - I've got a fight, but there's a large party involved."
Several other police vehicles arrived at the scene a short time later in response to this-Finley's
only-radio call. Among the additional police mlits responding to Finley's call was Finley's
supervisor, Sergeant Patrick Caton.
At about the same time Finley made his call for back-up, he ordered appellant to help him
shut down the AEII party, telling Katz "go aliead and get everybody out of there." Finley testified
that the job he instructed Katz to help him with was "to make sure the kids stay safe." At no time
did Finley retract his order to appellant.
Before Katz could respond to Finley's order to shut down the party, he was confronted by
a friend of Nyla Pica's, a man who accused Katz of having assaulted Ms. Pica. The unidentified
man's approach to appellant was such that Officer Finley instructed him to "get out of
[appellant's] face, step aside." Katz responded to the accusations by Ms. Pica's friend,
exclaiming: "That's not right. I was the one assaulted." Finley said that he told Katz several times
4
to calm down. He also testified that at no time did he observe Katz threaten anyone, either
verbally or physically. Finley decided to investigate these mutual allegations, a process, he said,
that took about ten minutes. "Neither party was injured," Finley testified. "At that point we issued
a referral for both parties. That's our standard policy when no one is injured." Finley then sent
Ms. Pica on her way and the investigation was concluded.
Finley and Katz then began arguing about what Katz should do with his weapon while
assisting Finley in shutting down the party. "I did ask him sometliing in regards to securing [the
weapon] and [appellant] said he didn't live [at the AF1I housc]," Finley stated. The officer also
told the trial court that Katz "was shouting out case law" about guns "that I was very unfamiliar
with." Sergeant Caton also testified that he observed "Mr. Katz yelling at Officer Finley about
some case law with regard to a firearm."
At about this time, Katz noticed a man he'd earlier put out of the AFII house attempting
to re-enter it. Taking a few steps toward where Jordan McCrate was standing, Katz raised his
voice to carry over the crowd noise and told his friend to keep the man out of their fraternity
house. Sergeant Caton testified that he heard Katz yelling: "Get back in the flicking house." But
Caton's testimony conflicts with Finley's on this point since Finley testified that Katz used no
profanity. And Caton sttbsequently acknowledged that, under Cinciimati Police Department
procedures, he was required to make a written record of any obscenities that formed part of the
charge and that he had made no such notation.
Finley instructed Katz to return to where he had been standing because he was being
detained. Katz obeyed Finley's cornnland, but questioned his continued detainment since Finley
had finished his assault investigation that had been the reason for that detaimnent. As Finley
5
testified, Katz "wanted to argue his detainnient time as far as how loug he had been detained and
what my legal right to detain him was." Caton also testified about observing this exchange:
"[T]hen the aigument about how long [appellant] was being detained comes up."
1'he record suggests that Caton's observations of appellant may have been jaundiced.
Shortly after he arrived on the scene, Sergeant Caton was involved in the an-est of an inebriated
young man, a situation that had no connection with appellant. Caton was inforrned by another
officer that Katz was armed before Caton l.eai-ned of Katz's valid CCW. And because Caton did
not speak to Finley at all prior to Katz's arrest, Caton had no idea that Officer Finley had ordered
appellant to assist in clearing the party crowd.
Caton decided to confiscate Katz's weapon. This decision was questioned by another
officer, Sergeant Anderson, wlio noted that Katz had done nothhig illegal, but Caton overruled
him. As Caton acknowledged, Katz did not offer any physical resistance to the confiscation of his
weapon but continued his verbal protests.
Caton had not spoken to Katz at all, but now wislied to address appellant's protestations.
But Caton was standing about 15 feet away from appellant and, given the crowd noise and loud
music, assumed Katz would not be able to hear him from there. So Caton moved to where Katz
was standing (the spot where lie had previously been ordered by Finley to stand). As Caton
approached, Katz said to him: "You made a furtive movement towards me." Reacting to this
comment, Caton immediately ordered Katz's arrest. He did not tell Katz why he had been
arrested nor did he give appellant any Miranda warnings.
The record contains no credible, uncontradieted evidence that appellant's conduct caused
crowd control problems. At trial, Caton speculated that appellant's speech caused people to come
6
out of the AEII house. But Nate Dumtehin testified that, once the police arrived, the fraternity
niembers shut their party down and asked everyone to leave their residence. Dumtchin also
testified that he was no farther than ten feet from appellant at any time and that he could not hear
anything Katz said over the crowd noise. The court of appeals' judgment entzy cites Caton's claim
that "officers ... had to basically surround us as we were dealing with Mr. Katz and contain thc
crowd and push them back up on the sidewalk." But Caton himself contradicted this assertion
when he described the officers' actions as "almost a defensive posture starting to line up and hold
the crowd back. It wa,sn't like we had foa7ned some kind of riot line. It was that they were just
containing people coming out that might interfere with the investigation" [emphasis added]. The
investigation to which Caton refers is Finley's assault investigation. As Finley testified, however,
that investigation had been coinpleted prior to appellant's arrest. Caton's testirnony about
concerns with the crowd also is contradicted by Officer Finley, who testified that--even before he
had 6nished his assault investigation -"the crowd was dispersing on its own."
The record contains many admissions by the state's witnesses signifying that the state
cannot nieet its burden of proof in this matter. Caton acknowledged that no one expressed
annoyance or alarm as a result of Katz's speech, and that Katz's words were not such as by their
very nature were likely to inflict injury. Caton also acknowledged that, except for the comment
directed at Jordan McCrate to keep someone out of the fraternity house, all of the speech for
which Katz was arrested was directed at police officers. Those police officers, Caton agreed,
would not likely be provoked to an immediate retaliatory breach of the peace by anything Katz
said.
Contradicting his own earlier assertion that no one expressed alarm, Caton said he was
7
alarmed by Katz's "furtive movement" comment because "I recognized that comment as part of a
threat assessment by somebody who might be carrying a fireaim." But when the trial court then
asked if appellant still had his firearm when he made the remark, Caton admitted, "No, he did not,
your Honor."
ARGUMENT IN SUPPORI' OF PROPOSITIONS OF LAW
Proposition of Law No. I: Where appellant's speech for which he wasarrested consisted of remarks addressed to police officers, caused noone to express inconvenience, annoyance, or alarm, did not create arisk of harm, and did not amount to `fighting words,' the appeals courterred in affirming his conviction for disorderly conduct.
The record of this matter does not contain one word of proof that anyone was
inconvenienced by anything appellant Joshua Katz did or said. And when Sergeant Caton, the
state's representative in this matter, stated and then confirmed that not a single person expressed
annoyance or alarm as a result of appellant's remarks, his admission meant the state could not
show appellant violated even the first prong of Ohio's disorderly conduct statute.
R.C. § 2911.17(A) reads as follows:
(A) No person shall recklessly cause inconvenience, annoyance, or alat-m toanother by doing any of the following:(1) Engaging in fighting, in tlireatening harm to persons or property, or in violent
or turbulent behavior;(2) Making unreasonable noise or an offensively coarse utterance, gesture, ordisplay or communicating unwarranted and grossly abusive langaage to anyperson;(3) Insulting, taunting, or challenging another, under circumstances in which thatconduct is likely to provoke a violent response;(4) Hnidering or preventing the movement of persons on a public street, road,highway, or right-oi way, or to, from, within, or upon public or private property, soas to interfere with the rights of others, and by any act that serves no lawful andreasonable purpose of the offender;(5) Creating a condition that is physically offensive to persons or that presents arisk of physicalliann to persons or property, by any act that serves no lawful and
8
reasonable purpose o f the offender.'
Appellant's references to case law in protest of his continued detention cannot accurately
be described as unreasonable noise when Katz was being detained even after Officer Finley had
completed his assault investigation. It is axiomatic that "the First Amendment gives considerable
latitude to citizens to express their views about the police and their activities."' In qnestioning his
confirnted detainment and/or the seizure of his lawfiilly-earried weapon, Katz was merely
exercising "[t]he freedom of individuals verbally to oppose or challenge police action without
thereby risking arrest [, a right that] is one of the principal characteristics by wliich we distinguish
a free nation from a police state.i3 As the U.S. supreme court has said," [s]urely one is not to be
punished for nonprovocatively voicing his objection to what he obviously felt was a highly
questionable detainment by a police officer.""
Moreover, Sergeant Caton's contradictory and evasive speculations about whether the
crowd was responding to Katz's speech never amounted to a clear assertion that appellant's
conduct had created a risk of harm.l'he only testimony representing the perspective of the crowd
was that provided by appellant's witnesses, Jordan McCrate and Nate Dumtchin. And it was
Dumtehin's uncontradicted testimony that no one in the crowd could liear what Katz was saying,
although they were curious about the police presence. In other words, it didn't matter what Katz
said because no one in the crowd could hear him over the din and loud music, and the only thing
'R.C. ys 291_ l .17(A) (Baldwiil's, 2Q08).
2 Kaylor v. Rankin (2005), 356 F. Supp.2d 839, 847 (6th Cir., N.D. Ohio).
3 Houston v, I-Iill (1987), 482 U.S. 451, 462-63, 107 S.Ct. 2502, 96 L.Ed.2d 398.
4 Norwell v. Cincinnati (1973), 414 U.S. 14, 16, 94 S.Ct. 187, 38 LEd.2d 170.
9
attracting the crowd's attention was the gathering of officers and police vehicles on Clifton
Avenue right in front of the fraternity house. Appellant was not responsible for any of these
circumstances. Officer Caton's call for back-up was placed before he initiated his assault
investigation, and it was based on his appraisal of the crowd conditions upon his arrival. This is
the only call reported by Finley in his testimony and it had nothing to do with appellant.
There were no "fighting words"
In any case, no reasoned analysis of appellant's speech, where he was quoting case law
and questioning the length of his detention as well as the confiscafion of his lawftilly carried
weapon, could meet the standard set out by this Court in State v. Hoffman:
A person may not be punished under [Ohio's disorderly conduct statute] for"recklessly caus(ing) inconvenience, annoyance, or alarm to another," bymaking an "offensively coarse utterance" or "comtnunicating unwarrantedand grossly abusive language to any person," unless the words spoken arelikely, by their very utterance, to inflict injury or provolze the averageperson to an immediate retaliatory breach of the peace.s
Sergeant Caton explicitly acknowledged that Katz's words were not likely, by their very utterance,
to inflict injmy. And he rurther acknowledged that Katz's words would not be likely to provoke
an immediate retaliatory breach of the peace by anyone in the crowd or by one of his police
officers.
The latter admission is significant because of the standard adopted by the First District
court of appeals in State v. Sansalone,b a case in which the Hamilton County appeals court
sState v. Iloffman (1979), 57 Ohio St.2d 129, 387 N.E.2d 239 (paragraph 1 of the
syllabus).
6 State v. Sansalone (1991), 71 Ohio App.3d 284, 593 N.E.2d 390 (First District,
Hamilton County).
10
reversed the disorderly conduct conviction of a woman who had called a police officer "a real
asshole," refi,ised to sign her driving citation, and exhibited other iruculent behavior. 1'he
Sansalone court adopted an objective test from federal case law that asked "whether, under the
circuinstances, it is probable that a reasonable police officer would find the accused's language
and conduct annoying or alarming and would be provoked to want to respond violently."' Had the
appeals court applied its Sansalone analysis to the facts of the case suh judice, it would have
found, as it did then, that "the record is devoid of any indicia that any reasouable person would
have found appellant's language alarming or annoying so as to provoke the immediate violent
retaliatory breach of the peace required by State v. HofJ'man."8
There was nothing provocative or sinister about Katz's joking remark to Caton: "You
made a fur6ve movernent at me." Katz had not moved from the spot where Finley told him to
stand, he was surrounded by police officers, and he had peacefiilly suirendered his weapon. Not
even the trial court could swallow Caton's absiu•d contention that he "recognized that cornment as
part of a threat assessment by somebody who might be carrying a firearm." Besides, "[w]hen
addressed to a police officer, words that might be `fighting words' and thus outside the First
Amendment if spoken to a private citizen enjoy First Amendmetit protection."9
In addition to being at odds with its own disorderly conduct jurisprudence, the ruling of
the Hamilton County appeals court in this matter clearly conflicts with decisions by other Ohio
courts. In State v. Fort, for example, the Mahoning County appeals court reversed the disorderly
' Icl at 286.
a ld.
9 Kaylor v. Rankin, supra, 356 F. Supp.2d at 848.
11
conduct conviction of a man when it found "no evidence exists of inconvenience, annoyance, or
alarm to another person"--even though the court found "[e]vidence exists on the record that
appellant engaged in turbulent behavior."10 In State v. Smith, the A4ontgomeiy County appeals
court reversed the disorderly conduct conviction of a man who confronted police after being
detained and released by them while "customers ot' nearby establislunents stopped to watch the
scene unfold." " The record in Smitli closely resembles that of the case at bar:
The state presented testimony from two police officers establishing that Smith wasrepeatedly warned to stop yelling, that he failed to do so, and that his shoutingdrew a crowd. But the prosecution failed to slzow that Smith recklessly causedan other inconvenience, annoyance, or alarm based upon his yelling. There was notestimony from any of the members o.Fthe crowd, and one of the officers testifiedthat no one complained to him aboLit Smith's noise level. Furthermore, none of theofficers testified that based on his unreasonable noise, he felt inconvenienced,annoyed, or alarmed. While under some situations, it might be reasonable to inferthat an individual's yelling in an outdoor, public place may cause anotherinconvenience, annoyanee, or alarm, we conclude that this is not a reasonableinference when the individual is an officer who must handle rowdy individuals ona daily basis. If the police officers were annoyed, it seems rnore likely, based uponthe evidence in this record, that they were annoyed because Smith refused to fol1owtheir direction to get in his car and leave, not that they wcre annoyed at theloudness of his remarlcs."
The cogent analysis of the Smith court is highly applicable to the instant matter (except that
appellant's witnesses Dumtehin and McCrate did provide exculpatory testimony fi•om "members
of the crowd"). Clearly, Caton and Finley became exasperated with Katz, not because his speech
created a risk of harm, but rather because his questioning of their judgment and their authority got
under their skin.
° State v. Fort, 2003-Ohio-1075 at 1123 (Seventh District, Mahoning County).
" State v. Smith, 2002-Ohio-5994 at ^5 (Second District, Montgomery County).
^ !d. at ¶15.
12
The judgment entry of the court below contains the empty pronouncement "words that
create a risk of imminent violence are not protected specch," but it does not explain why or if
appellant's words are outside of the First Amendment. All the appeals had to do to get this case
right was to look to any of its own correct applications of Hoffmtm, such as the one in which it
held: "`[Y]elling and screaming' is not punishable as a criminal act unless the words spoken
amount to fighting words.iL3 1'he fact that Caton's arrest of appellant was premised on Katz's
oblique reference to a frequently-used phrase from the lexicon of search and seizure case law
slrows how impoverished and desperate was the state's attempt to establish the existence of
lighting words in this matter. There were none. And witbout them, there was no disorderly
conduct.
Pronosition of Law No. II: Where appellant did not act reclrlcssly, andneither the trial court or the appeals court made a finding thatappellant acted recldessly, and where appellant had a lawful andreasonable purpose for his conduct, he cannot properly be convicted ofdisorderly conduct under R.C. 2917.11.
Even if could have been shown that appellant uttered fighting words causing a risk of
harm, he still would not be guilty of disorderly conduct absent proof beyond a reasonable doubt
that his conduct was reckless and that he lacked a reasonable and lawful purpose. But the trial
court made no such findings and the appeals court properly declined to invent them. The trial
record is, in fact, devoid of any substantial factual findings and the judgment entry appealed from
mirrors it in that regard. Instead, the appeals court rcferences two of its own past decisions, Stale
'3 State v. Btarnes, 2006-Ohio-1748 at ¶9 (First District, Ilamilton County), referencingState v. Hoffman (op. cit.), 57 Ohio St.2d 129.
13
v. Fant14 and State v. Callahan,l s in support of its contention "that there was sufficient evidence to
support a conviction for disorderly conduct." But the facts in Fant and Callahan differ
dramatically from the record in the case at bar. Katz's conduct bears no resemblance to the angry
abortion protestor in Callahan who screanred insults at a police officer with purpose to incite a
crowd that had almost been hit by an autonrobile. Katz's purpose, by contrast, was to keep people
safe.
In Fant, the appellant was arrested after he twice confronted and harassed police officers
while they were struggling to handcuff an individual Por whom there was ati outstanding felony
warrant.'L Such circumstauces enabled the Fant court to find "credible evidence in the record ...
which supports the trial court's conclusion that the defendant acted recklessly as defined in R.C.
2901.22(C)."" The Fant court also held there was "ample evidence to justify a finding that the
defendant's persistent confrontations with the officers had no reasonable and lawfiil purpose,il$
But there is no finding by the trial court or the appeals court that Joshua Katz acted recklessly, nor
could there be. "A person acts recklessly when, with heedless indifference to the consequences,
he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely
14 State v. Fant (1992), 79 Ohio App.3d 458, 607 N.E.2d 548 (First District, lIainiltonCounty).
" S State v. Callahan ( 1989), 48 Ohio App.3d 306, 549 N.E.2d 1230 (First District,?Iamilton County).
16 Fant, supra, at 460.
" Id. at 461.
181d.
14
to be of a certain nature.s19 Had Joshua been heedless of the consequences of his conduct, he
would not have sought police assistance to rescue Nyla Pica from the consequences of her
reckless behavior. And Joshua obeyed every command the police gave. Indeed, the record shows
that Joshua acted responsibly and with true concern for the well-being of others in a manner
consistent with his character for sober, responsible behavior that was also established by credible
evidence.
Appellant had a lawful and reasonable purpose
Appellant was not responsible for producing the crowd that met police officers upon their
arrival at the fi•atemity house, nor did he do anything to cause the crowd to become more
dangerous. On the contrary, Joshua did his best before and after the police aixived to ensure the
safety of persons in that crowd. He also did his best to comply with Officer Finley's conflicting
instructions--first ordering Joshua to "go ahead and get everybody out of there" and then also
instructing him that he was detained for the assatilt investigafion. 1'herefore, appellant at all times
had a lawful and reasonable purpose for his conduct and for his speech.
CONCLUSION
For all the reasons mentioned above, appellant requests that this Court accept jurisdiction
in this case so that the important issues represented will be reviewed on the merits.
CR;e,sp/e fnlly submitted,
RAymond L. KatzCOUNSEL FOR APPELLANT,JOSIIUA K. KATZ
19 Stote v. Conzpton (2003), 153 Ohio App.3d 512, 519 794 N.E.2d 771, 776 (First
District, Hamilton County), citing R.C. 2901.22(C).
15
CERTIFICATE OF SERVICE
I certify that a copy of this Memorandum of Jurisdiction was sent by ordinary IJ.S. mail tocounsel for appellee, John P. Curp, City of Cincinnati Solicitor, Brnest F. McAdams, City ofCincinnati Prosecutor, and Jennifer Bishop, City of Cincinnati Assistant Prosecutor the Office ofthe City of Cincinnati Prosecuting Attorney, 80lPlum Street, Roo 26, ' ncinnati, Ohio 45202on October 28, 2009.
Rayinond L. Katz
COUNSEL FOR APPELLANT,JOSHIJA K. KAT7,
16
APPENDIX
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF 01110, APPEAL NO. C-o8i194TRIAL NO, o8CRB-19676
Plaintiff-Appellee,
v3.
JOSHUA K. KATZ,
Defendant-Appellant.
EN^^REDSEP 1 6:2009
JUDGMENTENTRY.
We consider this appeal on the accelerated calendar, and this jtidgment entry is
not an opinion of the court.'
Following a bench trial, defendant-appellant Joshua Katz was found guilty of
disorderly conduct. The trial court sentenced him to a$2ao fine, plus costs. This
appeal followed.
Around midnight one evening, Katz flagged down Cincinnati Police Officer
Thomas Findlay as Findlay was driving by Katz's fraternity house. The fraternity was
hosting a large party, and Katz asked Findlay for help in escorting a woman from the
fraternity-house grounds. The woman, however, told Findlay that Katz ltad assaulted
her. As Findlay attempted to assess the situation, Katz interrupted him several times.
Findlay testified that Katz was acting in an agitated manner, and that he had to
repeatedly ask Katz to calm down. But Katz continued to interrupt Findlay's
I See S.Ct.R.Rep.dp. 3(A), App.R. ii.i(E), and Loc.R. 12. NEEIk1II IILi ifjl
I
OHIO F[RST DISTRICT COURT OF APPEALS
investigation, screaming that the woman was not telling the truth.
Cincinnati Police Sergeant Patrick Caton arrived at the scene after Findlay.
Caton testified that there were approximately 200 to 300 partygoers present, but
that his attention was immediately drawn to Katz. He heard Katz shouting "[G]o
back in the house! Go back in the house! Go back in the fucking house!" He also
heard Katz, who had a permit to carry a concealed weapon, arguing with several
officers who had taken Katz's gun from him. Caton saw three police officers telling
Katz to calm down and then heard Katz shout to one of the officers, "You can't take
my gun! You can't take my gun!" As Caton approached Katz to inform him that the
police could, indeed, take his weapon, Katz screamed to a bystander, "fG)et back in
the fucking house!" He also screamed at Caton, "You're making furtive movements
towards me!"
. Caton testified that, as Katz was yelling, niore and more people started
gathering around him. According to Caton, many of the bystanders appeared "highly
intoxicated," including a nurnber of Katz's fraternity brothers who were sholving
support for Katz. Four or five police officers had to stand between Katz and the
crowd to help keep order. Caton testified that these officers had to "basically
surround us [the officers] as we were dealing with Mr. Katz a'
and push them back up the sidewalk."
Based on these events, Katz was arrested for disorderly c
Katz called two of his fraternity brothers, Jordan
i^ENEREDSEP 1 6 2009
duct.
c rae an at an
Dur,ntschin, to testify in his defense at trial. Both witnesses had been at the party.
McCrate testified that Katz had not been disruptive. But McCrate also admitted that
he had not been outside the entire time that the police had been there. Dumtschin
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01110 FIRST DISTRICT COURT OF APPEALS
testified that it had been too noisy to hear much of anything that Katz had been
saying.
In his sole assignment of error challenging his corrviction, Katz presents three
arguments: (i) that the state failed to establish the elements of disorderly conduct
beyond a reasonable doubt, (2) that his conviction was against the manifest weight of
the evidence, and (3) that the trial court abused its discretion in sentencing him.
None of these arguments has merit.
Katz was convicted of violating R.C. 2917.ti(A)(5), which provides, "No
person shall recklessly cause inconvenience, annoyance, or alarm to another by * * *
[c]reating a condition **# that presents a risk of physical harm to persons or
property, by any act that serves no lawful and reasonable purpose of the offender."
The state proved these elements beyond a reasonable doubt. Katz had been
agitated from the time that police had arrived. He had been warned multiple times
to calm down. As Katz screamed about his gun, more people-many of them highly
intoxicated-gathered closer to Katz to see what was happening. Some were his
friends. Four or five police officers had to form a barrier between Katz and the crowd
and had to push the crowd back and away from Katz. Members of the crowd were
supportive of Katz. Viewing this evidence in a light most favorable to the state,2 we
hold that there was sufficient evidence to support a conviction for disorderly
conduct.3 -_---•-r'""
EN'^^i?g4Q^
^D ^' Jt.ta 1
2 State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.' Cf SYate v. Funt (1992), 79 Ohio App.3d 458, 607 N.r.2d 548; State v. Cullahan (1989), 48 Ohio App.3d306, 549 N.E.2d 1230.
3
OHIO FIRST DISTRLCT COURT OF APPEALS
Katz contends that he was punished for speaking, presumably in violation of
his First Amendment rights. But words that create a risk of imminent violence are
not protected speech.4
In sum, Katz's conviction was supported by sufficient evidence.
His conviction was also not against the weight of the evidence. While Katz's
witnesses testified that Katz had not been disruptive, there is nothing in the record to
suggest that the trial court "so lost its way" in choosing to believe the state's version
of the events that a new trial would be warranted.5
Finally, we hold that the trial court did not abuse its discretion in sentencing
Katz. There is no indication in the record that the court failed to consider the
applicable statutory sentencing factors, and the court imposed a sentence within the
statutory range.6
We therefore overrule Katz's assignment of error.
The judgment of the trial court is affirmed.
A certified copy of this judgment entry is the mandate, which shall be sent to
the trial court under App.R. 27. Costs shall be taxed under App.R. 24.
HENDON, P.J., SII1vDERmANN AND CUNNINGHANt, JJ.
To the Clerk:
Enter upon the Journal of th, C]rt on September 16, aeoq -------- " ^
per order of the Court ENI'ERED IPresiding Judge 4. SEP l 6 2009
^ l° See State v. Moj)`man (1979), 57 Ohio St.2d 129, 387 N.E,2d 239; Fant, supra; Callahan, supra.5 State v. Thompkrns, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541; State v. Martin (1983), 20
Ohio App.3d 172, 175, 485 N,E.2d 717.'SeeState v. Nelson, 172 Ohio App.3d 419, 2007-Ohio-3459, 875 N.E.2d 137; R.C. 2929.28.
4
