Attempt by a government official to use an anti-stalking order against a citizen

I have written about some other such cases in my Injunctions that are too far-reaching article; that case involves a slightly different set of facts than those I discussed there, but I thought it was worth mentioning as well. (I agree that some citizen behavior toward public officials—such as violence or genuine threats of crime—should indeed be prohibited and even prosecuted; but not surprisingly, protective order laws that are not limited to violence or genuine threats are sometimes used to prosecute behavior that is not violence or genuine threats.)

Out of Frenchko vs Shookdecided Monday by Ohio Court of Appeals Judge Eugene Lucci, joined by Justices 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 asking the Court to issue a CSPO {Civil Stalking Protection Order} against Appellant Shawn Shook, a resident of Warren Township in Trumbull County, Ohio, who frequently attends Commissioners’ meetings.

The Court of First Instance rejected the CSPO’s request and the Court of Appeal confirmed this decision. Here is an excerpt from Frenchko’s factual allegations:

Frenchko presented evidence concerning Shook’s conduct and comments at commission meetings and other events during that time period. Frenchko presented as evidence video of portions of commission meetings where Shook made comments after the public was invited to speak on matters “for the benefit of Trumbull County.”

In his comments, Shook questioned Frenchko about her mental health; claimed that her behaviors of “playing with (her) hair, putting (her) glasses on and taking them off, shuffling (her) papers (and) picking (her) fingernails” were “games” and part of her “playbook”; claimed that Frenchko criticized others for not coming to work or not parking in the proper spots, while Frenchko herself did not come to work and parked in designated handicapped parking spaces. During these comments, Shook referred to Frenchko’s attendance at events outside of Commission meetings.

During her testimony, Frenchko insisted that Shook’s comments at commission meetings had nothing to do with county business, and she believed Shook’s intention was to intimidate her and show her that he was tracking her whereabouts. In addition, Frenchko claimed that Shook obtained some of the information about her whereabouts from her personal Facebook page, which she had blocked from him.

However, Shook insisted that his comments were related to Frenchko’s use of the handicapped parking spaces and her failure to attend any workshops or trainings scheduled for the commissioners. In particular, Shook pointed to Frenchko dancing at a festival to support his position that it was unnecessary for Frenchko to use handicapped parking spaces. Shook acknowledged that he had multiple Facebook accounts and was able to view Frenchko’s public posts on her personal page through an account other than the one that had blocked Frenchko. He also acknowledged that much of his information about Frenchko’s whereabouts was available to groups and other individuals on Facebook.

In a video of a portion of the commissioners’ meeting on November 15, 2023, a day after Frenchko filed her motion for a CSPO but before the temporary restraining order was issued, Shook placed a sign on the podium in front of Frenchko’s phone that recorded the audience as the commissioners left the room to go to closed session. The sign blocked the video recording until Frenchko removed it.

In addition to the evidence regarding Shook’s comments and conduct at commission meetings, evidence was presented from two other events at which Frenchko and Shook were both present – a county Republican petition signing event and a Warren City Council meeting.

Regarding the GOP event, Shook arrived there approximately one to two hours before Frenchko. Frenchko claimed that when she arrived at the event, Shook was “lurking” everywhere, staring at her; although other evidence indicated that Shook was standing or sitting behind the GOP county secretary. A witness for Frenchko who attended the event with her claimed that Shook was the only member of the public she saw remaining in a single location during the event. Frenchko’s witness testified that although other people were taking photos during the event, the GOP county chairman told Frenchko that she had to stop taking photos or leave.

Afterward, the GOP secretary called the police at the chairman’s direction, and after the secretary signaled that officers were on their way, Frenchko went to the parking lot. Frenchko testified that she did not know if Shook was still at the event after she left, and she acknowledged that she had no evidence that Shook knew she would be at the event before he arrived. However, Frenchko insisted that a reasonable person would have assumed she would be there.

Regarding the Warren City Council meeting, Frenchko testified that she was present at the November 8, 2023 council meeting and that Shook was also present at the meeting, even though he was not a city resident. Shook did not speak at the meeting and Frenchko testified that she believed he was only there to follow her and intimidate her. After the meeting, Frenchko waited for Shook to leave the meeting before her, but as she was leaving the building, she observed Shook talking to another person outside of his car, which was parked across the street from Frenchko’s car.

Frenchko asked an officer to accompany her, and the officer agreed to observe from outside the building door until she left. Frenchko walked to her car, but she claimed she waited outside her car door because she wanted Shook to leave before her. As the person Shook had been talking to walked away from him, that person stopped to talk to Frenchko, and Shook got into his car. Frenchko claimed Shook then drove slowly through the parking lot and got out. Due to her concerns about Shook’s behavior, Frenchko took a different route home.

During his testimony, Shook claimed he attended the November 8, 2023 council meeting because he planned to speak about raises. However, Shook was unaware that he had to fill out certain paperwork and reside in the city in order to comment. Shook introduced the paperwork that must be completed in order to speak at a Warren City Council meeting into evidence. In addition, Shook called a witness who had been present at a Warren City Council meeting that Shook had attended prior to the November 8, 2023 meeting. That witness testified that Frenchko was not present at that earlier meeting.

And the analysis of the Court of Appeal:

Based on the above evidence, the Court, after the full hearing, found that Frenchko had failed in her burden to prove by a preponderance of the evidence that Shook was guilty of the type of conduct prohibited by the Stalking Threat Statute. In reaching its findings of fact and legal conclusions, the Court found that there is currently a lack of civility in political discourse and advised Shook not to engage in conduct that could be viewed as a stalking threat.

However, the court specifically noted that Frenchko failed to prove in this case that Shook “crossed the line” by not engaging in political discussions but by threatening her by stalking her. The court noted that Shook neither accosted nor threatened Frenchko, the parties were present at public events, and there was no evidence that Shook followed Frenchko to determine her whereabouts.

After our review, we cannot say that the evidence supports a finding that Shook knowingly caused Frenchko fear of physical harm or emotional distress through the conduct described above during the second half of 2023. Therefore, the Court’s denial of the CSPO did not contradict the obvious balance of evidence….

Here is the relevant excerpt from Ohio State Law on Threat of Stalking:

(A)(1) No person shall knowingly, by a pattern of conduct, cause another person to believe that the offender will cause physical harm to the other person or to any member of the other person’s family or household, or that the offender will cause emotional distress to the other person or to any member of the other person’s family or household.

‘Pattern of conduct’ means two or more acts or incidents which occur within a short period of time, whether or not there has been a prior conviction for those acts or incidents, or two or more acts or incidents which occur within a short period of time, whether or not there has been a prior conviction for those acts or incidents, which are directed against one or more persons employed by or belonging to the same undertaking, association or other organisation …

(“Emotional stress” means the following:)

(a) Any mental illness or condition resulting in temporary and significant incapacity;

(b) Any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, regardless of whether the person has requested or received psychiatric treatment, psychological treatment, or other mental health services.