Preparing to Protect the Township in the Event of Civil Unrest
by Marc A. Fishel and David A. Riepenhoff
In the past eighteen months, we have witnessed several examples of peaceful, and not so peaceful, protests throughout the country. There are numerous practical, legal, and political considerations relating to these protests. At times, protesters have engaged in lawful behavior protected by the First Amendment and in other situations the protests have turned into riots, endangering life and property. In many situations, our perception on whether something is a lawful protest or riot depends on our perspective. This article does not attempt to address these complicated issues. Rather, this article focuses on the questions about how townships can best be prepared in the event of a civil disturbance, regardless of the cause or motivation.
First Amendment Rights to Assembly and Free Speech
Township citizens have a First Amendment right to free speech and expression, including peaceful protests and demonstrations. This right is one of the bedrocks of our American democracy. With few exceptions, this right is not dependent on the reason for the protest or the viewpoint of the protestors. But, sometimes even peaceful protests and demonstrations mutate into violent outbursts, whether due to a criminal influence or raw, unrestrained emotion. All levels of government potentially face dueling interests in these situations, both protecting citizens’ constitutional rights and protecting life and property. The question is where government can draw the line and what can be done to protect the township during civil unrest. Is your township prepared in the event of a civil disturbance?
Civil Unrest Costs Local Governments
Events of the past year have shown that civil unrest can disrupt government operations, result in property damage, and even cause personal injury and death. The Insurance Information Institute recently estimated that protests and riots across the U.S. after the death of George Floyd in Minneapolis on May 26, 2020 resulted in more than $1 billion in insured losses. It was reported in the Spring, 2021 that federal prosecutors estimated the property damage caused by trespassers in the U.S. Capitol on January 6, 2021 was nearly $1.5 million, and this did not account for the disruption to government operations, increased security measures and damage to artifacts in the Capitol Building. Local governments can expect to expend many more dollars on increased law enforcement and first responder presence, overtime, and other costs.
Civil unrest is also likely to have an emotional toll on township personnel. According to a February 2021 American Psychological Association survey, 74% of adults reported that political unrest was a significant source of stress in their lives. 66% of respondents in the same survey also reported that the U.S. Capitol breach was a significant source of stress.
“The Readiness is All”
The American Planning Association has stated that there is no one-size-fits-all security plan. Still, townships should have a plan to address emergencies. Townships should consult with local police, fire and EMS and other stakeholders, as well as state and federal agency resources, for assistance in conducting a threat assessment and plan to protect township personnel, property and continuity of operations. A county emergency management agency likely can provide resources as well. A plan should be reduced to writing and communicated to all personnel. In fact, simply having contingency plans will allow for better responses in the event of civil unrest. Even a basic plan will allow township officials to know who will be responsible for which activities instead of scrambling to put a team together or developing a response after reaching a crisis point.
A component of a plan should include communication. How will employees get instructions on what they are to do in the event of public unrest? How can township officials contact employees in a crisis so they can respond to the public unrest?
Policies and training should be enacted to teach employees of suspicious signs and best practices. Such suspicious activities might include requests about a building’s security system and requests about access points. Townships should make it clear to employees that they should report suspicious activity. As we have been told for several years, “If you see something, say something.”
Building security personnel should also be on the lookout for people surveilling a location. But remember, Americans have a constitutional right to ordinary record both public employees and public buildings. This means that while employees should take note of individuals repeatedly returning to record, or recording in a harassment manner, and report such activity to law enforcement, it might not be an unlawful activity per se. Townships should seek legal guidance before taking action against a citizen for recording township activities or personnel.
What about firearms on public property? Townships may either permit or restrict the licensed possession of firearms in certain township facilities. Townships should consult legal counsel about the township’s rights and obligations, as well as any notifications or postings necessary. Townships should also consult with local law enforcement as they consider this issue.
Finally, townships should consider upgrading security infrastructure such as camera systems and building access systems, keeping in mind these items likely will be considered public records. . One example is to create or select a safe room in the case of attack or active shooter. The safe room should have a door that locks, a working phone, first-aid kits, and water. Employees should be made aware of such plans and potentially conduct drills, which local law enforcement or emergency personnel can direct.
Speech During Public Meetings.
How does a township address disruptive speech during its public meetings? Ohio’s Sunshine Laws enshrines Ohioans’ right to attend and observe the official actions of public bodies. But an individual’s right to interact ends where it disrupts another individual’s right to observe public meetings or where it disrupts a public body’s ability to carry out its official duties.
A township is not required to allow public comment during its meetings, though it is permitted, and many township boards do. If the township allows public comment, it may place restrictions on the time, place, and manner of those comments, such as: where on the agenda the public comments will be received, the location in the meeting room where the speaker may address the board, and the amount of time being allotted to each speaker. The township should maintain a policy governing the administration of the meeting, so there is no temptation to censor public comment based upon the viewpoint being expressed by the speaker.
But, isn’t there some speech that is so divisive of wrong that it can be prohibited? The answer is a careful “yes.” The township may prohibit speech promoting illegal activity, like illegal drug use, threats of violence, fighting words, or incitement of law breaking. It can also prohibit slander and obscenity. It cannot prohibit public comment simply because one or more trustees disagree with what is being said, or because the comments are distasteful may be unpopular in the community.
Sometimes, even if there is not public comment, citizens may wear t-shirts or buttons or bring-in signs to express their views. A township may limit signs to a size that does not block the ability of others to view the meetings. It also may prohibit written messages which are slanderous, obscene or promotes illegal activity or contains threats or fighting words. In general, however, a township cannot prohibit most buttons, t-shirts or other forms of non-verbal expression in a public meeting, so long as those items do not obstruct the meeting.
The Ohio Revised Code allows a township board to remove or detain disorderly persons from meetings and may direct constables to do so. For example, in a 2016 case in Franklin County, Ohio the Court ruled that the board was allowed to remove a person where minutes showed that he stood up and tried to address the board multiple times without having been recognized.
What is considered disruptive depends on the context. Ohioans generally have the right to record public meetings, so long as their recording devices do not interrupt the meeting or impede the ability of others to observe. For example, one Ohio court ruled that officials were allowed to stop attendees from recording a meeting where their bulky video equipment blocked and disrupted other attendees from observing. Similarly, the board may ask attendees to sit or eject them from the meeting if their standing hinders others or hampers officials conducting the meeting.
In addition to disruption caused by disorderly people, township trustees should consider safety and accountability measures at public meetings. In 2013, the Ohio Supreme Court ruled that it was not a violation of the Sunshine Laws to require board meeting attendees to sign a sign-in sheet to enter. Implementing such a measure allows the township to remind attendees that their actions are also public and tied to their name.
Many townships also maintain Facebook, Twitter, or other social media sites. The usual purpose for these sites is to disseminate information to township citizens, but many social media sites also allow for the opportunity for posts or comments. If a social media site is operated by a township and allows for public comment, the township cannot delete comments or block users simply because someone does not like the message. As with other types of First Amendment activity, limited exceptions apply to this rule if the comments are threatening, promote illegal activity, are obscene or defamatory. It is important for townships to have, and evenly enforce, a social media policy which addresses the permissible uses of the township’s social media site, so as not to inadvertently violate free speech rights.
Recommendations:
- Work with local law enforcement, fire and EMS organizations, and other stakeholders to develop your township’s emergency response protocol;
- Consult with the Ohio and County Emergency Management Agency for resources to develop and implement an emergency preparedness plan and any employee training;
- Obtain legal review of aspects of your township’s response plan, particularly with respect to limitation on assemblies, rules for the governance of board meetings, and policies on concealed and open carry of firearms;
- Periodically review the plan, especially in response to civil unrest in other communities.
David A. Riepenhoff, driepenhoff@fisheldowney.com, and Marc A. Fishel, mfishel@fisheldowney.com, are partners with the law firm of Fishel Downey Albrecht & Riepenhoff LLP in New Albany, Ohio. They, and the firm, advise and represent townships and other public agencies throughout Ohio. They can be reached by email or by phone at (614) 221-1216.