IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION
JAMES TURTURICE III )
1573 East 22 Street )
nd
Cleveland, Ohio 44114, )
)
and )
)
TIMOTHY D. SMITH )
2666 North Moreland )
Cleveland, Ohio 44120, )
)
and )
)
KATHY SMITH )
3188 W. 14 Street )
TH
Cleveland, Ohio 44109, )
)
and )
)
BEN SHAPIRO )
6527 Superior Avenue )
Cleveland, Ohio 44103, )
)
and )
)
AJOY GILL )
14500 Northfield Avenue )
East Cleveland, Ohio 44122, )
)
and )
)
STEVEN LARSON )
1934 Summit Road )
Kent, Ohio 44240, )
)
Plaintiffs, )
v. )
)
CITY OF CLEVELAND )
c/o Barbara A. Langhenry, its Law Director )
601 Lakeside Avenue, Room 106 )
Cleveland, Ohio 44114, )
)
Defendant. )
CASE NO.
JUDGE
VERIFIED COMPLAINT FOR
DECLARATORY JUDGMENT,
TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION AND
PERMANENT INJUNCTION, DAMAGES
AND ATTORNEYS FEES
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PARTIES AND JURISDICTION
1. Plaintiffs James Turturice III, Timothy Smith, Kathy Smith, Ben Shapiro, Ajoy
Gill and Steve Larson are natural persons who reside in the Northern District of Ohio.
2. Defendant City of Cleveland is a municipal corporation organized and existing
under the laws of the State of Ohio. Defendant Frank Jackson, named in his official capacity
only, is its Mayor and chief executive officer.
3. Jurisdiction is conferred upon this Court by 28 U.S.C. 1331, this being a civil
action arising under the Constitution and the laws of the United States. Jurisdiction is also
conferred upon this Court by 28 U.S.C. 1343(a)(3) and (4), 28 U.S.C. 2201 and 2202 and 42
U.S.C. 1983 and 1988, this being an action for declaratory judgment, equitable relief and
damages authorized by law to redress deprivations under color of law of rights, privileges and
immunities secured by the Constitution of the United States.
4. At all times pertinent to this Complaint, and in taking all of the actions described
in this Complaint, Defendant, its officers, agents and employees, acted and threaten to act under
color of law and were effecting, and will effect, the custom, policy and laws of the City of
Cleveland and the State of Ohio.
FACTS GIVING RISE TO PLAINTIFFS CLAIMS
5. Since in or around the first week of October 2011, a group of individual citizens
has associated together for the purposes of peaceably assembling and associating to express their
political opinions, petition the government for the redress of grievances and engage in
constitutionally protected expression on and in Public Square in Cleveland, Ohio. The group is
known as Occupy Cleveland.
6. Among the issues on which the members of Occupy Cleveland have expressed
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their views are those of economic justice and citizen participation in government.
7. Plaintiffs have engaged in constitutionally protected expressive activity and have
communicated their views on these subjects and others to citizens and public officials by way of
protests, dialogue and other peaceable means on and in Public Square in Cleveland, Ohio.
Plaintiffs desire to engage in constitutionally protected political expression twenty-four hours a
day on or in Public Square, and in particular, in and on the Tom Johnson freedom of speech
quadrant. Plaintiffs, through their use of Public Square, do not seek to use it to the exclusion of
other users.
8. Plaintiffs and others have chosen to protest on Public Square because it is central
to public transportation and the Cleveland business district. It is a location in which their
message regarding economic justice and the need for political and financial reform can be
articulated to a broad audience of passers-by. It is home to banks and financial institutions as
well.
9. Communicating in and on the portion of Public Square dedicated to the freedom
of expression is important to the message Plaintiffs seek and desire to communicate, as is their
desire to be able to do so on a continuous basis. A continuous presence in and on Public Square,
the civic heart of downtown, communicates the urgency of their call for reform, their intention to
persist in protected activity and their solidarity with like-minded individuals elsewhere. At times,
the Plaintiffs and others have gathered, overnight, in a portion of the sidewalk on the western
side of the West Roadway, between Rockwell and Superior Avenues. They have also
demonstrated at times in both the northwest and southwest quadrants of Public Square. They
intend and desire to continue their demonstrations, and to maintain a continual presence on
Public Square toward that end, indefinitely.
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10. However, Cleveland Cod. Ord. 559.541 prohibits Plaintiffs from remaining in and
on Public Square and engaging in political protest, political speech and other constitutionally
protected activity after 10:00 p.m. and before 5:00 a.m. each day. More specifically, that
ordinance states:
No unauthorized person shall remain on or in any portion of the area known as
the Public Square area between the hours of 10:00 p.m. to 5:00 a.m. Persons may
be authorized to remain in Public Square by obtaining a permit from the Director
of Parks, Recreation and Properties.
Such permits shall be issued when the Director finds:
(a) That the proposed activity and use will not unreasonably interfere with or
detract from the promotion of public health, welfare and safety;
(b) That the proposed activity or use is not reasonably anticipated to incite
violence, crime or disorderly conduct;
(c) That the proposed activity will not entail unusual, extraordinary or
burdensome expense or police operation by the City;
(d) That the facilities desired have not been reserved for other use at the day
and hour required in the application.
For purposes of this section, the "Public Square area" includes the quadrants
and all structures (including but not limited to walls, fountains, and flower
planters) located within the quadrants known as Public Square and shown on the
map below, but excludes the quadrant on which sits the Soldiers and Sailors
Monument; the Public Square area also excludes all dedicated streets, public
sidewalks adjacent to dedicated streets and RTA bus shelters within this area.
Whoever violates this section is guilty of a minor misdemeanor on the first
offense, a misdemeanor of the fourth degree on the second offense, and a
misdemeanor of the third degree on the third and any subsequent offense.
11. On October 21, 2011, shortly after 10:00 p.m., members of the City of Cleveland
Police Department arrived at Public Square and arrested a number of individuals engaged in the
exercise of their rights secured by the First and Fourteenth Amendments, ostensibly for violating
Ord. 559.541 and/or Cod. Ord. 623.04 prohibiting criminal trespass, or comparable state laws, by
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remaining in or on Public Square after 10:00 p.m.
12. Plaintiffs were not among the citizens arrested and charged with violating Ord.
559.541, or any other City or State laws.
13. As a result of the Citys enforcement of Ord. 559.541, Plaintiffs are afraid to
exercise their constitutional right to peaceably assemble, to engage in constitutionally protected
activity, to engage in political speech, to petition the government for a redress of grievances, to
freely associate with other like-minded citizens in and on Public Square after 10:00 p.m.
14. More specifically, Plaintiffs fear that their liberty will be abridged and they, too,
will be arrested and charged with violating Ord. 559.541 or other City or State laws if they were to
remain in Public Square and engage in constitutionally protected activity after 10:00 p.m. As a
result of that fear, Plaintiffs have been deterred from and have refrained from engaging in
constitutionally protected activity after 10:00 p.m. on and in Public Square. As a result of that
fear, Plaintiffs have been deterred and have refrained from engaging in constitutionally protected
speech and activity.
COUNT I
15. Plaintiffs incorporate paragraphs 1 through 14 of their complaint as though fully
rewritten.
16. Cleveland Cod. Ord. 559.541 is unconstitutional on its face and as applied under
the First and Fourteenth Amendments for each of the following reasons:
a. the law operates as an unconstitutional prior restraint on
constitutionally protected expression;
b. the law abridges the right to freedom of speech and expression protected by the
First Amendment;
c. the law abridges the right of freedom of assembly protected by the First
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Amendment;
e. the law abridges the right to petition the government for redress of grievances
protected by the First Amendment;
f. the law confers standardless discretion on city officials to grant or deny a permit;
g. the law is impermissibly overbroad;
h. the law fails to provide judicial review in the event a license is denied;
i. the law is unconstitutionally vague;
j. the law deprives Plaintiffs of equal protection of the laws;
k. the law deprives Plaintiffs of their right to due process by imposing strict liability
for engaging in innocent conduct;
l. the law is underinclusive;
m. the law is overinclusive;
n. the law operates to chill protected speech.
17. Plaintiffs are therefore entitled to a declaration that the law violates their rights
secured by the First and Fourteenth Amendments to the Constitution, both on its face and as
applied.
COUNT II
18. Plaintiffs incorporate paragraphs 1 through 17 of their complaint as if fully
rewritten.
19. Defendants conduct and threatened conduct threatens to deprive Plaintiffs of their
rights secured by the First and Fourteenth Amendments, and has caused and will cause in the
future irreparable harm to Plaintiffs for which there is no adequate remedy at law.
20. By reason of Defendants misconduct and threatened misconduct, and the
irreparable harm Plaintiffs have suffered and will continue to suffer, Plaintiffs are entitled to a
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temporary restraining order, preliminary injunction and permanent injunction enjoining the
Defendant, its officers, agents, servants, attorneys, and any person acting in concert and
participation with him, with actual notice of the injunction by personal service or otherwise, from
enforcing Cleveland Cod. Ord. 559.541, Cod. Ord. 559.53, or any other municipal or state
trespass laws against them.
COUNT III
21. Plaintiffs incorporate paragraphs 1 through 20 of their Complaint as if full re-
written.
22. As a direct and proximate result of the Defendants actions, Plaintiffs have been
deprived of their rights secured by the First and Fourteenth Amendments to the Constitution; they
have been prohibited from engaging in constitutionally protected expression and have been
deterred from doing so and will continue to be so deprived and deterred in the future, for all of
which they are entitled to recover compensatory damages.
WHEREFORE, Plaintiffs demand upon Count I of their complaint a declaration that
Cleveland Cod. Ord. 559.451is unconstitutional under the First and Fourteenth Amendments to
the United States Constitution, both on its face and as applied; and,
Upon Count II of their complaint, a temporary restraining order, preliminary injunction
and permanent injunction enjoining the Defendant, its officers, agents, servants, employees and
those acting in concert and participation with them, who receive actual notice of the injunction by
personal service or otherwise, from enforcing Cod. Ord. Chapter 559.541, 559.53 623.04, or any
other municipal or state general trespass law against them; and,
Upon Count III of their Complaint, compensatory damages in an amount to be determined
at trial; and,
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Upon all counts of the Complaint, the costs and expenses in maintaining this action,
including Plaintiffs reasonable attorneys' fees, as well as any other relief, whether legal or
equitable, to which Plaintiffs may be entitled.
/s/ J. Michael Murray
J. MICHAEL MURRAY (0019626)
jmmurray@bgmdlaw.com
LORRAINE R. BAUMGARDNER (0019642)
lbaumgardner@bgmdlaw.com
STEVEN D. SHAFRON (0039042)
sshafron@bgmdlaw.com
RAYMOND V. VASVARI (0055538)
rvasvari@bgmdlaw.com
BERKMAN, GORDON, MURRAY & DeVAN
55 Public Square, Suite 2200
Cleveland, Ohio 44113-1949
(216) 781-5245
(216) 781-8207 (facsimile)
Attorneys for Plaintiffs
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VERIFICATION
Plaintiff Timothy Smith verifies, under penalty of perjury, that he has read the foregoing
verified complaint, and the allegations contained in it are true as he verily believes.
10/25/2011 /s/ Timothy Smith
Date TIMOTHY SMITH
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