Government Official's Attempt To Use An Anti-stalking Order Against A Citizen

I've written about some other such cases in my Overbroad Injunctions article; this case involves a somewhat different set of facts than the ones I discussed there, but I thought it worth noting as well. (I agree that some citizen behavior related to officials—such as violence or true threats of crime—should indeed be enjoinable and even criminally punishable; but, unsurprisingly, protective order statutes that aren't limited to violence or true threats are sometimes used to target behavior that isn't violence or true threats.)

From Frenchko v. Shook, decided Monday by Ohio Court of Appeals Judge Eugene Lucci, joined by Judges Mary Jane Trapp and Robert Patton; note that the opinion is long, and this excerpt necessarily omits some details about Shook's background (and alleged past mental health problems):

On November 14, 2023, {Niki (Michele Nicole)} Frenchko, a Trumbull County Commissioner, filed a petition requesting the trial court to issue a CSPO {Civil Stalking Protection Order} against appellee, Shawn Shook, a resident of Warren Township in Trumbull County, Ohio, who frequently attends the commissioners' meetings.

The trial court denied the CSPO request, and the Court of Appeals affirmed that decision. Here's an excerpt from Frenchko's factual allegations:

Frenchko provided evidence pertaining to Shook's behavior and comments at commissioners' meetings and other events during this time period. Frenchko introduced into evidence video of portions of the commissioner's meetings at which Shook made comments after the public was invited to speak on matters "for the good of Trumbull County."

In his comments, Shook questioned Frenchko as to her mental health; maintained that her behavior of "playing with [her] hair, taking [her] glasses on and off, shuffling [her] papers, [and] scraping out [her] fingernails" were "games" and part of her "playbook"; maintained that Frenchko had criticized others for not coming to work or not parking in the correct locations, when Frenchko herself did not come to work and parked in designated handicapped spaces. During these comments, Shook made references to Frenchko's attendance at events outside of the commissioners' meetings.

During her testimony, Frenchko maintained that Shook's comments at the commissioners' meetings were unrelated to county business, and she believed Shook's intent was to intimidate her and to demonstrate to her that he was tracking her whereabouts. Further, Frenchko maintained that Shook obtained some of the information related to her location from her personal Facebook page, which she had blocked him from viewing.

However, Shook maintained that his comments were related to Frenchko's use of the handicapped parking spaces and her failure to attend workshops or training that had been scheduled for the commissioners. Specifically, Shook referenced Frenchko dancing at a festival in support of his position that it was unnecessary for Frenchko to utilize handicapped parking spaces. Shook acknowledged that he had multiple Facebook accounts, and he was able to view Frenchko's public posts on her personal page using a different account than the one Frenchko had blocked. He also acknowledged that much of his information as to Frenchko's whereabouts was available from groups and other individuals on Facebook.

In a video of a portion of the commissioners' meeting held on November 15, 2023, the day after Frenchko filed her petition for a CSPO, but prior to the issuance of the ex parte order, Shook placed a sign on the dais in front of Frenchko's phone, which was recording the audience while the commissioners exited the room to go into executive session. The sign blocked the video recording until Frenchko removed it.

In addition to the evidence regarding Shook's comments and conduct at the commissioners' meetings, evidence was presented as to two other functions at which Frenchko and Shook were both present—a county GOP petition signing event and a Warren City Council meeting.

With respect to the GOP event, Shook arrived at the event approximately one to two hours prior to Frenchko. Frenchko maintained that when she arrived at the event, Shook "lurk[ed]" wherever she went and stared at her; although other evidence indicated that Shook remained standing or sitting behind the county GOP secretary. A witness for Frenchko who had attended the event with her maintained that Shook was the only member of the public that she observed remaining in a singular location during the event. Frenchko's witness testified that, although other individuals were taking photographs during the event, the county GOP chairperson informed Frenchko that she needed to stop photographing or leave.

Thereafter, the GOP secretary called police officers at the direction of the chairperson, and, after the secretary indicated that the officers were on their way, Frenchko walked to the parking lot. Frenchko testified that she was unaware whether Shook remained at the event after she left, and she acknowledged that she had no evidence indicating that Shook was aware in advance of his arrival that she would be present at the event. However, Frenchko maintained that a reasonable person would have assumed she would be present.

With respect to the Warren City Council meeting, Frenchko testified that she was present at the council meeting held on November 8, 2023, and Shook was also present at the meeting, although he was not a resident of the city. Shook did not speak at the meeting, and Frenchko testified that she believed he was there for no reason other than to follow and intimidate her. After the meeting, Frenchko waited for Shook to leave the meeting before her, but, as she was exiting the building, she observed Shook speaking to another individual outside of his car, which was parked across from Frenchko's car.

Frenchko asked an officer to accompany her, and the officer agreed to observe from outside the building's door until she left. Frenchko walked to her car, but she maintained that she waited outside of her car door because she wanted Shook to leave prior to her. When the individual with whom Shook had been speaking walked away from him, that individual then stopped to speak to Frenchko, and Shook entered his car. Frenchko maintained that Shook then drove slowly through the parking lot and exited. Due to her concern regarding Shook's behavior, Frenchko took an alternate route home.

During Shook's testimony, he maintained that he attended the November 8, 2023 council meeting because he planned to speak regarding pay raises. However, Shook was unaware that he was required to complete certain paperwork and to be a city resident in order to comment. Shook provided the paperwork that must be completed to be able to speak at a Warren City Council meeting as an exhibit. Further, Shook called a witness who had been present at a Warren City Council meeting which Shook attended prior to the November 8, 2023 meeting. This witness testified that Frenchko was not present at this prior meeting.

And the court of appeals' analysis:

Based on the above evidence, following the full hearing, the trial court determined that Frenchko failed to meet her burden of demonstrating by a preponderance of the evidence that Shook engaged in the type of conduct proscribed by the menacing by stalking statute. Within its findings of fact and conclusions of law, the trial court noted the lack of civility currently present in political discourse and advised Shook to not engage in behavior that could be considered menacing by stalking.

However, the trial court specifically noted Frenchko had failed to prove in this case that Shook "stepped over the line" from engaging in political discourse to menacing by stalking. The court noted that Shook had not approached or threatened Frenchko, the parties were present at public events, and there was no evidence of Shook following Frenchko to ascertain her whereabouts.

After our review, we cannot say the evidence weighed heavily in support of finding that Shook, by engaging in the conduct described above in the latter half of 2023, knowingly caused Frenchko's fear of physical harm or mental distress. Thus, the trial court's denial of the CSPO was not against the manifest weight of the evidence….

Here's the relevant excerpt from the Ohio menacing-by-stalking statute:

(A)(1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or a family or household member of the other person or cause mental distress to the other person or a family or household member of the other person….

"Pattern of conduct" means two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents, or two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents, directed at one or more persons employed by or belonging to the same corporation, association, or other organization….

["[M]ental distress" means any of the following:]

(a) Any mental illness or condition that involves some temporary substantial incapacity;

(b) Any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services.

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