Peace

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CURTIS PEACE,

:

Plaintiff,

Case No. 2:24-cv-4237

v. Chief Judge Sarah D. Morrison

Magistrate Judge Chelsey M.

Vascura

WALTER CARTER, JR., et al.,

:

Defendants.

OPINION AND ORDER

Curtis Peace brings this action against The Ohio State University President

Walter Carter, Jr. and several OSU police officers for alleged violations of federal

and state law arising from his arrest on OSU’s campus. This matter is before the

Court on Defendants’ Motion to Dismiss. (ECF No. 17.)

For the reasons below, Defendants’ Motion is GRANTED in part and

DENIED in part.

I. BACKGROUND

The following background draws from the allegations in the Complaint; all

well-pleaded factual allegations in the Complaint are considered as true for

purposes of the Motion to Dismiss. See Gavitt v. Born, 835 F.3d 623, 639–40 (6th

Cir. 2016).

On the morning of April 25, 2024, protestors against Israel’s actions in Gaza

and OSU’s involvement with Israel gathered at the South Oval (a space on OSU’s

campus in front of the student union) and set up camping equipment. (Am. Compl.,

ECF No. 15, ¶¶ 16, 20.) At approximately 9:30 a.m., OSU police ordered that all

camping equipment be removed from the South Oval and the protesters complied.

(Id. ¶¶ 21, 23.) Subsequently, OSU Police Division Deputy Chiefs Eric Whiteside

and Dennis Jeffrey determined that the protest violated OSU’s University Space

Rules (“USR”) because it was a continuation of an event that had improper tents.

(Id. ¶ 24.) Later that evening, another group of protestors attempted to construct

encampments on the South Oval. (Id. ¶ 48.)

A. The University Space Rules

The USR provide that the “[u]se of University space is reserved for the direct

and indirect support of the University’s teaching, research, and service missions,

the University’s administrative functions, and students’ campus-life activities,” with

access or use limited “as may be necessary to provide for the orderly conduct of”

those University functions. (Id. ¶ 55.) The USR permit large-scale events to be

registered by student organizations and others, including non-affiliates, but OSU

“may require reasonable time, place and manner limitations be placed on usage to

ensure that the usage does not disrupt the University’s mission, administrative

functions, or other campus-life activities.” (Id. ¶ 56.) OSU preserves “its sole

discretion and subject to change based upon the operational needs of the

University” to designate closed spaces. (Id. ¶ 57.)

Under ¶ D.5 of the USR, “Equipment, Signs and Structures” may not be

“attached or affixed” without prior approval, while ¶ D.6 prohibits setting up “tents

or other temporary structures requiring staking” without prior approval and subject

to size restrictions and Ohio Department of Commerce permitting. (Id. ¶ 60.)

Per ¶ F of the USR, disruption “in any form” of “University business” is

forbidden, and, “[w]hen enforcing these rules, an official or employee authorized to

maintain order on the campus or facility should make a reasonable attempt to warn

and advise registered student organizations, students, faculty, staff and non-

affiliates to cease the prohibited conduct or activity before citing and/or arresting

the individual for violation of these rules, except where the conduct violating these

rules reasonably appears to create a threat to or endanger health, safety or

property.” (Id. ¶ 61.)

B. Mr. Peace’s Arrest

Mr. Peace graduated from OSU in 2021. (Id. ¶ 7.) He arrived at the South

Oval at approximately 9:57 a.m. on April 25, 2024, and joined with protestors who

were expressing their criticism of OSU and Israel in a peaceful and nondisruptive

manner. (Id. ¶ 22.) By the time he arrived, protesters had already begun to tear

down the encampment; they finished within a few minutes of his arrival. (Id. ¶ 23.)

Within ten minutes of Mr. Peace’s arrival, OSU police officers, including

Deputy Chief Whiteside, approached the protesters with whom Mr. Peace was

standing. (Id. ¶ 25.) While Mr. Peace filmed, Deputy Chief Whiteside told them that

the University had determined that their protest was a continuation of an event

that had violated the USR by having tents and that the protestors needed to

disperse. (Id. ¶ 26.) At no point did Deputy Chief Whiteside tell them to leave the

OSU campus or the South Oval. (Id. ¶¶ 27, 28.) The protestors dispersed and people

not involved in the protest continued to use the South Oval as normal. (Id. ¶¶ 30,

31.)

Mr. Peace walked approximately 150 feet to the south of the original

encampment site where he began filming an “arrest squad” of OSU officers under

the command of Lt. Alan Horujko. (Id. ¶¶ 32–34.) Around 10:17 a.m., while Mr.

Peace was filming, Lt. Horujko directed two members of the arrest squad to arrest

Mr. Peace for criminal trespassing. (Id. ¶¶ 34–36.)

Mr. Peace was detained for the rest of the day, incarcerated, and released on

bond that evening. (Id. ¶¶ 38.) He was charged with criminal trespassing in a

complaint signed by Detective Susan Liu but the charge was later dismissed

unconditionally. (Id. ¶ 40.)

Because of his arrest, Mr. Peace was fired from his job as a contractor for a

delivery service and his application to work for another delivery service was denied.

(Id. ¶ 42.) Mr. Peace intends to peacefully protest on OSU’s campus again. (Id. ¶ 7.)

C. President Carter’s Communications

On April 29, 2024, President Carter emailed the campus community about

the April 25, 2024 arrests; in that email, he explained that the protestors involved

in creating an encampment had been repeatedly notified throughout the day that

they were in violation of the USR. (Am. Compl. ¶¶ 44–45, 47–49.) His email stated,

among other things, that “I take my responsibilities very seriously and am

accountable for outcomes. Arrests are not an action that I or any member of the

administration take lightly.” (Id. ¶ 44.)

D. The May 2024 Protests

On May 1, 2024, OSU permitted, without any arrests, more than 700

protesters on the South Oval who were chanting slogans, engaging in Muslim

prayers, and waving Palestinian flags or posters. (Am. Compl. ¶ 64.)

II. STANDARD OF REVIEW

Defendants move to dismiss Mr. Peace’s Claims under Rules 12(b)(1) and

12(b)(6).

Before a court may determine whether a plaintiff has failed to state a claim

upon which relief may be granted, it must first find that it has subject matter

jurisdiction. Mitchell v. BMI Fed. Credit Union, 374 F. Supp. 3d 664, 666–67 (S.D.

Ohio 2019) (Marbley, J.) (citation omitted). Rule 12(b)(1) provides that the

defendant may move to dismiss based on a “lack of subject-matter jurisdiction.” Fed.

R. Civ. P. 12(b)(1). The standard of review of a motion to dismiss for lack of subject

matter jurisdiction depends on whether the defendant makes a facial or factual

challenge. Gentek Bldg. Prod., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th

Cir. 2007). Only a facial attack, which “questions merely the sufficiency of the

pleading,” is present here. Id. (citing Ohio Nat’l Life Ins. Co. v. United States, 922

F.2d 320, 325 (6th Cir. 1990)). A facial attack requires the district court to “take[ ]

the allegations in the complaint as true.” Id. The plaintiff has the burden of proving

jurisdiction when subject matter jurisdiction is challenged. Rogers v. Stratton

Indus., 798 F.2d 913, 915 (6th Cir. 1986).

A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon

which relief can be granted “is a test of the plaintiff’s cause of action as stated in the

complaint, not a challenge to the plaintiff's factual allegations.” Golden v. City of

Columbus, 404 F.3d 950, 958–59 (6th Cir. 2005). Federal Rule of Civil Procedure

8(a) requires a plaintiff to plead each claim with sufficient specificity to “give the

defendant fair notice of what the claim is and the grounds upon which it rests.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal alteration and quotations

omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed

if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

The Supreme Court has explained:

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. The

plausibility standard is not akin to a probability requirement, but it

asks for more than a sheer possibility that a defendant has acted

unlawfully. Where a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations

omitted). The complaint need not contain detailed factual allegations, but it must

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Id. (citing Twombly, 550 U.S. at 555). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. In reviewing a motion to dismiss, the Court “construe[s] the complaint

in the light most favorable to the plaintiff[.]” DirecTV, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007).

III. ANALYSIS

Mr. Peace asserts six claims for declaratory, injunctive, and monetary relief:

false arrest under Ohio law and the Fourth Amendment (Claims 1 and 2,

respectively), malicious prosecution under Ohio law and the Fourth Amendment

(Claims 3 and 4, respectively), an as-applied First Amendment challenge to the

USR (Claim 5), and First Amendment retaliatory arrest (Claim 6). His

constitutional claims are brought pursuant to 42 U.S.C. § 1983. Defendants move to

dismiss all of his claims.

A. Mr. Peace lacks Article III standing to seek declaratory or

injunctive relief.1

Mr. Peace seeks declaratory and injunctive relief, including an injunction

prohibiting Defendants from enforcing the USR to close the South Oval at

Defendants’ discretion. (Am. Compl., PAGEID # 133.) The Court finds he lacks

Article III standing for this relief.

1 Although neither party has briefed Article III standing, both have briefed

whether Mr. Peace satisfies the Ex parte Young exception to Eleventh Amendment

immunity as to his claims for prospective relief, including the requirement that he

allege an ongoing or imminent violation of his rights. “[A]t the point that a

threatened injury becomes sufficiently imminent and particularized to confer

Article III standing, that threat of enforcement also becomes sufficient to satisfy

this element of Ex parte Young.” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1047

(6th Cir. 2015). Thus, in its sua sponte Article III standing analysis, the Court will

consider the parties’ arguments on the imminent or ongoing injury element of the

Ex parte Young exception.

Pursuant to Article III of the United States Constitution, standing is

necessary to the exercise of jurisdiction and “determin[es] the power of the court to

entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). “Once standing

concerns arise—whether raised by defendants, or sua sponte by the Court in

meeting its obligation to ensure its own jurisdiction—[p]laintiffs carry the burden to

establish that standing requirements are met.” Solis v. Emery Fed. Credit Union,

459 F. Supp. 3d 981, 988 (S.D. Ohio 2020) (Cole, J.) (citing Spokeo, Inc. v. Robins,

578 U.S. 330, 337–39 (2016)).

Injury is “the ‘[f]irst and foremost’ of standing’s three elements.” Spokeo, 578

U.S. at 338 (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 103 (1998)).

“To establish injury in fact, a plaintiff must show that he or she suffered ‘an

invasion of a legally protected interest’ that is ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 339 (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992). “The threat of future harm can satisfy

this requirement as long as there is a ‘substantial risk’ that the harm will occur” but

“‘[a]llegations of possible future injury’ are not sufficient.” Kanuszewski v. Mich.

Dep’t of Health & Hum. Servs., 927 F.3d 396, 405 (6th Cir. 2019) (quoting Clapper v.

Amnesty Int’l, 568 U.S. 398, 409, 414 n.5 (2013)).

‘“[A] plaintiff must demonstrate standing for each claim he seeks to press and

for each form of relief that is sought.”’ Town of Chester v. Laroe Estates, Inc., 581

U.S. 433, 439 (2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734

(2008)). “[T]he type of harm alleged impacts the available relief.” Simpson-Vlach v.

Michigan Dep’t of Educ., No. 22-1724, 2023 WL 3347497, at *4 (6th Cir. May 10,

2023) (citing TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021)); Kanuszewski,

927 F.3d at 406). “While allegations of past injury permit a plaintiff to seek

compensatory relief, allegations of ongoing or future harm permit a plaintiff to seek

declaratory or injunctive relief.” Id. (citing Kanuszewski, 927 F.3d at 406; City of

Los Angeles v. Lyons, 461 U.S. 95, 106 (1983)).

Mr. Peace has failed to plead ongoing or a threat of future harm to him

flowing from Defendants’ enforcement of the USR. Although he says that he intends

to participate in future protests on the South Oval, he lacks a reasonable fear of

future arrest because he alleges that Defendants have since permitted large and

expressive protests on the South Oval without any arrests.

Mr. Peace argues that Defendants’ likelihood of quelling future peaceful

protests is “hardly speculative,” citing general pressure on university leaders from

executive orders, press statements, and congressional investigations. (Pl.’s Resp.

ECF No. 18, PAGEID # 181–83.) But he fails to explain how this pressure increases

the likelihood of Defendants enforcing the USR against his expressive activity on

the South Oval in the future, especially where Defendants have since allowed

protests on the South Oval without incident.

Since Mr. Peace has failed to sufficiently allege an ongoing or future injury,

he lacks standing to seek injunctive or declaratory relief.

Accordingly, his Claims are DISMISSED to the extent that he seeks

declaratory and injunctive relief.

B. Eleventh Amendment immunity bars Mr. Peace’s Claims

against Defendants in their official capacities.

“Eleventh Amendment immunity ‘bars all suits, whether for injunctive,

declaratory or monetary relief, against the state and its departments, by citizens of

another state, foreigners or its own citizens.”’ McCormick v. Miami Univ., 693 F.3d

654, 661 (6th Cir. 2012) (quoting Thiokol Corp. v. Dep’t of Treasury, 987 F.2d 376,

381 (6th Cir. 1993)). This immunity extends to claims filed against state officers or

employees in their official capacities, as those suits are “‘no different from a suit

against the State itself.’” Doe v. Ohio State Univ., 219 F. Supp. 3d 645, 654 (S.D.

Ohio 2016) (Graham, J.) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989)). “A suit against OSU is the same as a suit against Ohio because OSU, like

Ohio’s other public universities, qualifies as an arm of the state.” Id. (citing Johnson

v. Univ. of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000)). Defendants, as OSU

officials and employees, are thus immune to Mr. Peace’s Claims in their official

capacities.

Mr. Peace does not dispute that Eleventh Amendment immunity applies to

Defendants, but argues that the Ex parte Young exception to such immunity allows

him to bring his claims for prospective injunctive relief against them in their official

capacities. As discussed above, however, he lacks standing to seek such relief.

Accordingly, Mr. Peace’s Claims against Defendants in their official

capacities are DISMISSED.

C. The Court lacks jurisdiction over Mr. Peace’s state-law claims

(Claims 1 and 3).

Defendants argue that they are also immune in their individual capacities

under Ohio Rev. Code. § 2743.02(F) and Ohio Rev. Code § 9.86 from Claims 1 and 3.

Ohio law grants civil immunity to state officers and employees in their

individual capacities unless the officer’s or employee’s actions were “manifestly

outside the scope of his employment or official responsibilities” or “with malicious

purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code § 9.86.

Ohio law mandates that the determination of whether a state employee was acting

within the scope of his employment is exclusively the province of the Ohio Court of

Claims. Ohio Rev. Code. § 2743.02(F).

“Under Ohio law, then, state employees may not be sued unless and until it

has been determined by the Court of Claims that they are not entitled to

immunity.” Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989). In other words, a

federal court may not exercise pendent jurisdiction over state claims regarding the

individual liability of an “Ohio state employee . . . unless and until the Ohio Court of

Claims determines he is not entitled to immunity.” Powell v. Morris, 184 F.R.D.

591, 596–97 (S.D. Ohio 1998) (Marbley, J.). The Court thus lacks jurisdiction over

Claims 1 and 3 against Defendants in their individual capacities.

Accordingly, Claims 1 and 3 against Defendants in their individual capacities

are DISMISSED.

D. Mr. Peace’s § 1983 Claims (Claims 2, 4, 5, and 6)

1. Mr. Peace’s Complaint fails to plead the personal

involvement of certain Defendants for certain claims.

Defendants argue that Mr. Peace failed to plead the requisite personal

involvement of certain Defendants for some or all of his § 1983 Claims (Claims 2, 4,

5, and 6).

To hold an individual defendant liable under § 1983, a plaintiff must allege

“personal involvement” in the alleged unconstitutional conduct. See Grinter v.

Knight, 532 F.3d 567, 575 (6th Cir. 2008) (personal involvement is required for

personal liability). Section 1983 does not “incorporate doctrines of vicarious

liability[,]” so a defendant is not automatically liable for the acts of those they

supervise. Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). Rather, to incur

liability, a defendant must have directly participated in or encouraged an

unconstitutional act. Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir.

2012). Conclusory allegations of unconstitutional conduct are insufficient to state a

§ 1983 claim; a complaint must contain either direct or inferential factual

allegations as to each individual defendant.

a) President Carter

Defendants argue Mr. Peace failed to plead the requisite personal

involvement of President Carter for his § 1983 claims.

Mr. Peace’s only relevant allegation about President Carter is that he sent a

campus-wide email critical of the encampment that protestors set up at the South

Oval. This is insufficient to establish that President Carter took any action to cause

or implicitly approve of the alleged unlawful conduct towards Mr. Peace.

Mr. Peace attempts to liken this case to Cooperrider v. Woods, 127 F.4th

1019, 1039 (6th Cir. 2025). There, the plaintiffs were allowed to proceed on a First

Amendment retaliation claim because the complaint contained well-pled factual

allegations that the defendants had “directly addressed the speech of Plaintiffs” in

public statements and in internal e-mails suggesting “a concerted effort to deprive

[the plaintiffs] of their alcohol licenses[.]” Id. at 1038–39. But he has not alleged

that President Carter made any statements directly addressing Mr. Peace’s

expressive conduct, nor has he alleged facts suggesting President Carter approved,

authorized, or knowingly acquiesced to the alleged violation of Mr. Peace’s

constitutional rights.

Accordingly, Claims 2, 4, 5, and 6 against President Carter in his individual

capacity are DISMISSED.

b) Detective Liu

Defendants also argue Mr. Peace failed to plead the requisite personal

involvement of Detective Liu.

The only allegation about Detective Liu is that she signed the complaint

instituting criminal trespass charges against Mr. Peace after other officers arrested

him. And as to Mr. Peace’s malicious prosecution claim, he does not allege that

Detective Liu had any role in the decision to prosecute him or that the criminal

complaint contained false information. “[A] police officer cannot be liable for Fourth

Amendment malicious prosecution when [s]he did not make the decision to bring

charges, as long as the information [s]he submitted to the prosecutor is truthful.”

Kinkus v. Vill. of Yorkville, Ohio, 289 F. App’x 86, 91 (6th Cir. 2008); cf. Sykes v.

Anderson, 625 F.3d 294, 317 (6th Cir. 2010). Thus, Mr. Peace fails to allege the

requisite personal involvement by Detective Liu.

Claims 2, 4, 5, and 6 against Detective Liu in her individual capacity are

DISMISSED.

c) Lt. Horujko and Deputy Chiefs Jeffrey and

Whiteside

Finally, Defendants argue Mr. Peace failed to sufficiently plead the personal

involvement of Lt. Horujko and Deputy Chiefs Jeffrey and Whiteside for Claim 4.

Mr. Peace does not allege that any of the three officers made the decision to

prosecute him or made ‘“knowing misstatements ... to the prosecutor”’ or exerted

‘“pressure or influence, over an individual who [] made the decision to prosecute[.]”

Sykes, 625 F.3d at 316 (citation omitted). Thus, Mr. Peace failed to allege the

requisite personal involvement for Claim 4 as to Lt. Horujko and Deputy Chiefs

Jeffrey and Whiteside.

It is not clear whether Defendants are challenging the sufficiency of Mr.

Peace’s Amended Complaint as to the personal involvement of Lt. Horujko and

Deputy Chiefs Jeffrey and Whiteside for Claims 2, 5, and 6. (See Defs.’ Mot.,

PAGEID # 146–47; Defs.’ Reply, PAGEID # 193.) To the extent Defendants’ filings

could be construed to raise such a challenge, Mr. Peace sufficiency pleaded that Lt.

Horujko and Deputy Chiefs Jeffrey and Whiteside “implicitly authorized, approved

or knowingly acquiesced” in the alleged unconstitutional conduct giving rise to these

three Claims. Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015) (citation

omitted). He alleges that Deputy Chiefs Jeffrey and Whiteside determined that the

protestors who remained near the morning encampment site (including Mr. Peace)

were violating the USR, that Deputy Chief Whiteside told Mr. Peace and the other

protestors to disperse, and that Lt. Horujko directed the OSU officers to arrest Mr.

Peace.

Claim 4 is DISMISSED against Lt. Horujko and Deputy Chiefs Jeffrey and

Whiteside in their individual capacities.

2. Mr. Peace sufficiently alleged facts in support Claims 2, 5,

and 6 as to Lt. Horujko and Deputy Chiefs Jeffrey and

Whiteside.

a) Claim 2: Fourth Amendment False Arrest

To succeed on a wrongful arrest claim under § 1983, a plaintiff must prove

that the police lacked probable cause. Fridley v. Horrighs, 291 F.3d 867, 872 (6th

Cir. 2002) (citing Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999)). “A police

officer determines the existence of probable cause by examining the facts and

circumstances within his knowledge that are sufficient to inform “a prudent person,

or one of reasonable caution,” that the suspect “has committed, is committing, or is

about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). A

probable-cause determination is based on the “totality of the circumstances” and

must consider “both the inculpatory and exculpatory evidence.” Gardenhire v.

Schubert, 205 F.3d 303, 318 (6th Cir. 2000). The determination must include “ ‘facts

and circumstances establishing a statutorily legitimated affirmative justification for

the suspected criminal act.’ ” Fridley, 291 F.3d at 873 (quoting Painter, 185 F.3d at

570). Only if “a reasonable police officer would conclusively know that an

investigative target’s behavior is protected by a legally cognizable affirmative

defense” does the officer lack a legal foundation for arrest. Id. (citing Painter, 185

F.3d at 571 n.21). “In general, the existence of probable cause in a § 1983 action

presents a jury question, unless there is only one reasonable determination

possible.” Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995).

Mr. Peace was arrested for criminal trespass. “In Ohio, an individual

commits criminal trespass by ‘[k]nowingly enter[ing] or remain[ing] on the land or

premises of another’ absent ‘privilege to do so.”’ Logsdon v. Hains, 492 F.3d 334, 341

(6th Cir. 2007) (quoting Ohio Rev. Code § 2911.21(A)(1)). A “privilege” is “an

immunity, license, or right conferred by law, bestowed by express or implied grant,

arising out of status, position, office, or relationship, or growing out of necessity.”

Ohio Rev. Code § 2901.01(A)(12). Generally, a person has a privilege to enter and be

upon the public areas of public property but a public official or agency that owns or

controls public property can revoke that general privilege. Cleveland v. Dickerson,

60 N.E.3d 686, 691 (Ohio Ct. App. 2016). Even so, in the context of public property,

“a criminal trespass may be inappropriate where, subject to certain time, place, and

manner of use restrictions, the defendant is lawfully exercising his or her First

Amendment rights to free speech and peaceful assembly.” Id. at 692.

Defendants argue that the arresting OSU officers had probable cause to

arrest Mr. Peace for criminal trespass because “(1) law enforcement officers asked

[him] to vacate the area near the planned encampment site and (2) [he] was

arrested thereafter while still in the area.” (Defs.’ Mot., PAGEID # 147.)

But, according to the Amended Complaint, Deputy Chief Whiteside only told the

protestors at the morning encampment site (including Mr. Peace) to “disperse” and

“and did not at any time tell them they needed to leave the Ohio State Campus or

the South Oval.” (Am. Compl. ¶ 27.) Mr. Peace alleges he was arrested

approximately 150 feet away from the encampment site and there are no allegations

that OSU officers told him to leave after his dispersal from the morning

encampment site. While the evidence may subsequently reveal Defendants’ factual

arguments, Mr. Peace has sufficiently pleaded facts suggesting that the OSU

officers lacked probable cause to arrest him.

Accordingly, Defendants’ Motion is DENIED as to Claim 2 against Lt.

Horujko and Deputy Chiefs Jeffrey and Whiteside in their individual capacities.

b) Claim 5: First Amendment As-Applied Challenge to

the USR

Mr. Peace alleges Lt. Horujko and Deputy Chiefs Jeffrey and Whiteside

violated his First Amendment free speech rights when they invoked the USR to

close the South Oval to his expressive and associational conduct.2 The viability of a

2 Mr. Peace also argues the USR function as a “prior restraint” because “[a]s

applied, the USR grants sole and total discretion to OSU to declare peaceful and

nondisruptive expressive and associational activity off limits on the South Oval.”

(Am. Compl. ¶ 63.) But “a prior restraint is an administrative or judicial order that

First Amendment claim depends on three inquiries: (1) whether the speech is

protected; (2) “the nature of the forum” in which the speech occurs; and (3) whether

the government’s restriction on speech satisfies the relevant forum’s associated

constitutional standard. Hartman v. Thompson, 931 F.3d 471, 478 (6th Cir. 2019)

(citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985);

S.H.A.R.K. v. Metro Parks Serving Summit Cty., 499 F.3d 553, 559 (6th Cir. 2007)).

Defendants challenge the sufficiency of Mr. Peace’s pleadings only as to the first

inquiry. (See Reply, PAGEID # 193.)

“[T]he First Amendment rights of speech and association extend to the

campuses of state universities.” Kincaid v. Gibson, 236 F.3d 342, 347 (6th Cir. 2001)

(quoting Widmar v. Vincent, 454 U.S. 263, 268–69 (1981)). Even though the

Supreme Court and Sixth Circuit have not determined whether the public enjoys a

First Amendment right to record police activities in public places, “[s]even circuit

courts have held the public has some right to film police.” Freeman v. Spoljaric, 667

F. Supp. 3d 636, 661 (S.D. Ohio 2023) (Cole, J.) (collecting cases). Based on the body

of persuasive authority, this Court “agree[d] that the First Amendment protects the

public’s right to film police and other government agents subject to reasonable

restrictions.” Id.

forbids protected speech in advance. An action taken after the speech is expressed,

like a punishment for disfavored speech, is not a prior restraint.” Novak v. City of

Parma, 932 F.3d 421, 432 (6th Cir. 2019) (cleaned up) (citing Alexander v. United

States, 509 U.S. 544, 550 (1993)). To this extent, the Claim is DISMISSED.

Defendants provide no basis to find as a matter of law that Mr. Peace’s

alleged conduct filming OSU police officers on the South Oval does not enjoy First

Amendment protection. Instead, they argue that “there is no First Amendment

right to set up an encampment on public property.” (Defs.’ Reply, PAGEID # 193

(citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 297–98 (1984).) That

is not what Mr. Peace alleges occurred. He alleges that he was merely standing with

the protestors at the morning encampment site. He claims that the original

encampment was taken down shortly after his arrival and that he and the other

protestors dispersed when ordered to do so by OSU police. He was standing 150 feet

away from the original encampment site at the time of his arrest. While a second

encampment was attempted later that evening, that second encampment did not

begin until well after his arrest. Assuming these allegations are true, whether the

First Amendment provides a right to set up encampments is immaterial to Mr.

Peace’s conduct.

The Court DENIES Defendants’ Motion as to Claim 5 against Lt. Horujko

and Deputy Chiefs Jeffrey and Whiteside in their individual capacities.

c) Claim 6: First Amendment Retaliatory Arrest

A plaintiff alleging First Amendment retaliation must show that (1) he

engaged in a constitutionally protected activity; (2) the officers’ adverse actions

caused him to suffer an injury that would likely chill a person of ordinary firmness

from continuing that activity, and (3) the officers were motivated, at least in part,

by his exercise of his constitutional rights. Novak v. City of Parma, 932 F.3d 421,

427 (6th Cir. 2019). Further, “to bring a First Amendment retaliatory arrest claim,

a plaintiff must generally show that there was no probable cause for the arrest.” Id.

at 430. Defendants argue Claim 6 fails because Mr. Peace’s conduct was not

constitutionally protected and the OSU officers had probable cause to arrest him.

For the reasons discussed above on Claims 2 and 5, the Court likewise finds Mr.

Peace has stated Claim 6.

Accordingly, Defendants’ Motion is DENIED as to Claim 6 against Lt.

Horujko and Deputy Chiefs Jeffrey and Whiteside in their individual capacities.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion (ECF No. 17) is

DENIED as to Claims 2, 5, and 6 against Lt. Horujko and Deputy Chiefs Jeffrey

and Whiteside in their individual capacities. In all other respects, the Motion is

GRANTED.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON, CHIEF JUDGE

UNITED STATES DISTRICT COURT