Anti-riot or anti-protest? Four Ohio bills would stiffen penalties for demonstrators

The protests around Ohio last summer were organized because people wanted to see change – especially in policing procedures – from their elected officials. 

But a wave of bills introduced by state Republicans were not what they had in mind. 

These bills would increase the number of arrestable offenses at protests and enhance penalties for crimes committed during demonstrations that turn violent.

Supporters of the four bills (House Bill 22, House Bill 109, Senate Bill 16 and Senate Bill 41) say the changes are necessary to protect first responders and peaceful protesters from "the lawlessness" of last summer's demonstrations.

Opponents, however, describe them as photocopies of bills from other states and claim their true purpose is to intimidate people across the country who protest controversial issues like police misconduct. 

A response to 2020 protests

Americans took to the streets in May 2020 following the death of George Floyd, a Black man who died after a white Minneapolis police officer pressed his knee into Floyd’s neck for nearly nine minutes. The officer is currently on trial for second-degree murder.

The U.S. Crisis Monitor recorded more 7,750 demonstrations across the U.S. between May and August and found 93% to be neither violent nor destructive. No fatalities were reported in Ohio, but some protesters broke Statehouse windows, damaged businesses and spray-painted buildings.

"Over the past year, we have seen our nation’s first responders become targets of intimidation, harassment and assault. This is simply unacceptable," wrote Sen. Tim Schaffer in an email. "We are a civilized society, and we don’t seek change through violence." 

The groups representing Ohio's first responders agreed. Schaffer, who sponsored both Senate bills, has support from the Ohio Fire Chief's Association, Ohio Prosecuting Attorneys Association and the Fraternal Order of Police of Ohio. 

Concerns about criminalizing protest

Democrats and the ACLU of Ohio have concerns about the legislation.  

For example, SB 16 would create a new crime for blocking traffic or “unlawfully impeding public passage.” If committed during a riot, as defined in state law, the charge could be a fifth-degree felony. 

"When people think of a riot they think of cars being overturned or buildings on fire, but Ohio defines riot extremely broad," ALCU Ohio's chief lobbyist Gary Daniels said. "Five people who get together in violation of disorderly conduct to commit a misdemeanor is a riot." 

In a protest where thousands of people were packed into the streets, he said, a riot could be declared because people didn't walk away fast enough after an order to disperse.  

"It's a direct slap in the face," Rep. Sedrick Denson, D-Cincinnati, said. 

He's proud of the way Cincinnati worked to improve relationships between police officers and the Black community following a series of officer-involved shootings that culminated in riots, boycotts and a federal lawsuit. 

"I’ve been a part of that ongoing work. This takes us 20 steps backward," said Denson, who is Black. 

Imagine, he continued, seeing something like what happened to Floyd and pulling out your cell phone to record it. 

"You start shouting and screaming, as any human might do, and that may be considered interfering with an officer, and you may end up in the same position as the person on the ground," Denson said. 

That's what he sees when he reads HB 22, a bill that would expand Ohio's definition of obstruction of justice to include “failure to follow a lawful order from a law enforcement officer or diverting a law enforcement officer’s attention.” 

But police officers who testified before Denson on the House Criminal Justice committee urged him to pass it. 

"Officers are very vulnerable when attempting to make an arrest, especially in the absence of a backup officer," Ohio State Highway Patrol Superintendent Richard Fambro said.  

He believes the bill would create "a protective 'halo' around an officer" and anyone who enters that space without the consent of the officer could be prosecuted. 

Questions of constitutionality 

Opponents of all four Ohio bills have questioned whether they violate the First Amendment right to freedom of assembly and speech. 

Schaffer wrote in his email that he's been "diligently working with our caucus legal team to alleviate any concerns," and the sponsors of HB 22 recently removed a section of their bill about taunting an officer. 

"The only chilling effect these bills will have is on violence. Read the bills. Peaceful protest is a powerful American value, one that helped shape the beginnings of our country. These bills respect that," Schaffer wrote. 

But Ohio's Senate President Matt Huffman, R-Lima, said lawmakers "need to be cautious about creating new crimes and enhancing penalties" – especially given the lifelong consequences that come from a felony conviction. 

Protecting law enforcement is important, Huffman said, but "that usually can be done with better techniques ... rather than changes to the law." 

Even conservative groups like the Ohio chapter of Americans For Prosperity described HB 22's phrasing as "highly subjective" and potentially "interfering with the constitutional exercise of the rights of free assembly and speech." 

"More generally, HB 22 exemplifies a continuing problematic trend of overcriminalization by the legislature over the course of the last several decades," AFP Ohio State Director Micah Derry said in his testimony. "This bill is not necessary. Current law already has us covered."