From the “you cant make it up” files, comes the case out of the Ohio State v. Stephens where a judge has ruled that the 1st amendment freedom of speech does not protect “barking” at a police dog. Although its not binding precedent in Massachusetts, its still entertaining.
You might think that such ridiculous conduct being protected is a reach, but the defendants case was bolstered by an earlier ruling by the Ohio appeals court in State v. Gilchrist (Ohio Ct. App. 2003) where they ruled that such conduct might be protected. However, the state failed to address in its opposition motion the issue of whether it was or was not protected speech under the 1st amendment. The earlier court stated “Furthermore, in its brief before this Court, appellant does not challenge the trial court’s finding that under the present facts, enforcement of R.C. 2921.321(B) would be unconstitutional. The state has made no attempt in its brief before this Court to address the First Amendment issues. Accordingly, we see no reason to raise the issue sua sponte. See App.R. 12(A)(2); Austin v. Squire (1997), 118 Ohio App.3d 35, 691 N.E.2d 1085 (“Court of Appeals may disregard errors not separately assigned and argued in appellant’s assignment of error.”). Therefore, we overrule appellant’s First Assignment of Error.”
In order for the Judge to rule in your favor you usually have to address the important issue of the case, otherwise expect a ruling against you. The newer decision was ruled against the defendant for a number of reasons, not the least of which is probably that the D.A. in the case actually made an argument for it.
Attorney Ronald A. Sellon