(Cleveland) - Cleveland's downtown curfew remains in effect through Friday, May 5, but there's an effort underway to prevent any more curfews from being implemented.
In a lawsuit filed Wednesday, attorney Mark Ondrejech says the curfew instituted after Saturay's looting violates the rights of citizens. He wants U.S. District Court to issue a temporary restraining order against the city, the governor, the county executive, and others, to prevent further curfews.
Ondrejech says people should not have to prove their identity at an arbitrarily desitgnated time, thus creating a police state.
The city says it will respond in court, and has no further comment.
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Case: 1:20-cv-01220 Doc #: 2 Filed: 06/03/20 1 of 6. PageID #: 78
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Nicholas Hudnell ) Case No. 1:20-cv-01220
)
And all those similarly situated ) JUDGE:
)
Plaintiffs, )
v. ) MOTION FOR
) FOR TEMPORARY RESTRAING
City of Cleveland, Ohio )
)
ORDER (WITHOUT NOTICE)
)
) TO ENJOIN AND RESTRAIN
) ENFORCEMENT AND
) IMPLEMENTATION OF CURFEWS
) UNDER MAYOR JACKSON’S
) CURRENT PROCLAMATION OF
)
)
CIVIL EMERGENCY (UNCIVIL
UNREST
Now come the Plaintiffs Nicholas Hudnell and Mark S. Ondrejech on behalf of themselves
and all those similarly situated (collectively “Plaintiffs”) to hereby move pursuant to Fed. R. Civ.
P. 65 for a TEMPORARY RESTRAINING ORDER (WITHOUT HEARING OR NOTICE)
against Defendants City of Cleveland, Frank G. Jackson, Michael McGrath, Calvin D. Williams,
Mike DeWine, Richard S. Fambro, Armond Budish and David G. Schilling Jr. (in their official
capacities as set out in the above caption; collectively referred to a “Defendants”) to restrain them
from implementing (or otherwise ordering them to cease) any further curfews in the city of
Cleveland for the reasons set out in Counts 1-10 of the Complaint (including the 8:00 p.m. curfew
today). For the reasons set out in the Complaint and pursuant to application of the law cited therein,
this motion should be GRANTED.
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Case: 1:20-cv-01220 Doc #: 2 Filed: 06/03/20 2 of 6. PageID #: 79
Furthermore, this Court should not require Plaintiffs to file a bond because this Temporary
Restraining Order is filed to protect and restore the Constitutional rights and similarly-situated
persons (or a nominal bond). This is not a case where Plaintiffs are seeking property or money
from the other party.
This Court should issue the Temporary Restraining Order IMMEDIATELY issue the TRO;
otherwise, the Constitutional rights of the citizens of Cleveland will continue to be infringed upon
again beginning at 8:00 p.m. tonight (One hour from now). The undersigned has contacted the
attorneys for the city of Cleveland and has e-mailed a copy of the complaint to them prior to filing
the Complaint and this Motion.
MEMORANDUM1
I. The Unconstitutional Curfew Proclamation
On or about May 31, 2020 at 8:00 p.m., the Mayor signed a Second Modification to the
Proclamation extending the curfew imposed on the Central Business District to also include the
W. 25th Market District until 8:00 p.m. on Tuesday, June 2, 2020 (hereinafter the “Proclamation”).
See Exhibit 2 attached hereto and incorporated herein.
1. Under the Proclamation:
“All persons are prohibited from walking, running, loitering, standing or
driving/motoring, (except for vehicles on Route 2; I-77; I-71; I-90; I-480
West Lee Road Exit Ramp; I-90 East West 25th Street Exist and I-490 West
at W. 7th Street Exit) upon any alley, street, highway, public property or
vacant premises within the Area, excepting persons officially designated by
the Mayor to perform duties with reference to the Civil Emergency, persons
traveling to and from their residence located within the Area or a place of
refuse, persons traveling to and from their residence located within the Area
or a place of refuge, persons traveling for medical care and/or safety should
they be unable for reasons of health or safety to remain in their residence,
and persons traveling to and from their place of employment during regular
business hours. All persons are asked to remain within their residences
1 The Authorities cited in the Verified Complaint are incorporated herein.
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Case: 1:20-cv-01220 Doc #: 2 Filed: 06/03/20 3 of 6. PageID #: 80
during the curfew unless remaining in their residences could constitute a
risk to health or safety.”
On or about 10:00 a.m. on June 2, 2020, the City announced a Third modification of the
Proclamation that the restrictions imposed by the Proclamation will be extended past 8:00 p.m. on
June 2 as follows:
i. The areas subject to the restrictions will remain under curfew until 6:00 a.m. on June
3.
ii. The areas subject to the restrictions will then be under curfew from 8:00 p.m. until 6:00
a.m. on June 3, 2020 through June 5, 2020.
iii. Additional exceptions were made to residents of the restricted areas as set out on the
attached map including the Central Business District and the W. 25th Market District.
See Proclamation at Third modification, attached hereto and incorporated herein as Exhibit 3.
This Court should restrain enforcement of the curfew because it unconstitutionally
infringes upon the Plaintiffs’ substantive fundamental rights. Under the Due Process Clause of the
Fourteenth Amendment contains a substantive component that "provides heightened protection
against government interference with certain fundamental rights and liberty interests." Washington
v. Glucksberg (1997), 521 U.S. 702, 720, 117 S. Ct. 2258, 2267, 138 L. Ed. 2d 772, 787This
doctrine of substantive due process forbids the government from infringing upon these
fundamental liberty interests at all, regardless of the procedure provided, unless the infringement
survives strict scrutiny; that is, the government's infringement must be "narrowly tailored to serve
a compelling state interest." Reno v. Flores (1993), 507 U.S. 292, 302, 113 S. Ct. 1439, 1447, 123
L. Ed. 2d 1, 16.
Here, Defendants cannot show, a compelling governmental interest to implement the
curfew measures discussed in this Complaint against Plaintiffs (and others) because it cannot and
has cannot articulate facts to support an interest compelling enough to impose this very restrictive
curfew on the Central Business District and W. 25th Market Street District in addition to closing
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Case: 1:20-cv-01220 Doc #: 2 Filed: 06/03/20 4 of 6. PageID #: 81
access to and from those areas. It is a fact that there has been no widespread civil unrest in the city
of Cleveland Central Business District since about daylight on Sunday. Further, it is a fact that
there has been no unrest in what the Proclamation describes as the W.25th Market District. The
curfew does not advance a compelling government interest.
Additionally, the curfews implemented in the Proclamation and the enforcement thereof
are not narrowly tailored to serve any compelling state interest because the curfews prevent
Plaintiffs (and others) from walking, driving, running or otherwise freely traveling around the
city’s curfew districts without being subject to being stopped by police or National Guard troops
and forced to provide identification to prove that he or she is in the curfew area for the limited
reasons permitted under the latest Proclamation.
The requirements for issuance of this Temporary Restraining Order are satisfied. See.
Verified Complaint at ¶155-165. The vindication of citizens’ Constitutional rights is always in the
public interest. The Plaintiffs should not be required to abide by a curfew. Providing papers,
proving one’s identity and being required to have a specific purpose for walking around one’s
neighborhood at an arbitrarily-designated time is not something that a citizen of this country should
be required to do except in the most dramatic circumstances. The creation of a police state such as
this is antithetical to American values. This imposition of martial law by the Mayor must be
stopped immediately.
Therefore, Plaintiffs respectfully request that this Court IMMEDIATELY a Temporary
Restraining Order against ALL Defendants as follows:
1) Issue Temporary Restraining Order immediately injoining and restraining the
implementation of the curfew(s) currently scheduled to be implemented in the city of Cleveland,
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Case: 1:20-cv-01220 Doc #: 2 Filed: 06/03/20 5 of 6. PageID #: 82
Cuyahoga County, Ohio under the latest version of the Proclamation (currently set to go into
effect at 8:00 p.m. tonight and each night thereafter through June 5, 2020).
2) Issue a Temporary Restraining Order immediately prohibiting Defendants and Defendants’
agents from enforcing any curfew in the city of Cleveland, Cuyahoga County, Ohio under the
Proclamation;
3) Issue a temporary restraining order prohibiting Defendants from enforcing or relying on the
Proclamation (and curfew sought to be imposed thereunder) to search, seize, arrest, prosecute, fine,
imprison, intimidate, threaten or otherwise punish Plaintiffs and similarly-situated individuals in
the curfew zones and anywhere else in the city;
4) Grant to Plaintiffs against Defendants such other and further relief as this Court deems just
and proper at law and/or equity to prevent further constitutional violations by the Defendants and
their agents.
5) Waive the requirement of bond or permit Plaintiffs to file nominal bond.
Respectfully submitted,
/s/ Mark S. Ondrejech
Mark S. Ondrejech (0082170)
THE ONDREJECH LAW FIRM LLC
Hoyt Block Building
700 West Saint Clair Ave., Suite 110
Cleveland, Ohio 44113-1448
Office Phone: (440) 356-2700 ext. 1003
Mobile: (330) 441-2027
Facsimile: 1.888.577.4491
mark@o-lawfirm.com
Attorneys for Plaintiffs
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Case: 1:20-cv-01220 Doc #: 2 Filed: 06/03/20 6 of 6. PageID #: 83
CERTIFICATE OF SERVICE
Plaintiff has served City of Cleveland attorneys Elana Boop and Stewart L. Hastings with
this Motion for Temporary Restraining Order (without notice or hearing) this 3rd day of June,
2020.
/s/ Mark S. Ondrejech
Mark S. Ondrejech (0082170)
MSO
https://d.docs.live.net/d547f3efb4324532/cases --current/00642 -cleveland citizens (chall emerg order)/2020.06.01 complaint v. cleveland
emergency proclamation.docx
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NICK HUDNELL, et al., ) CASE NO. 1:20-cv-01220
)
Plaintiffs, )
) JUDGE:
v. )
)
City of Cleveland et al., )
)
Defendant. ) ORDER
On VERIFIED COMPLAINT of Plaintiffs, pursuant to Rule 65 of the Federal Rules of
Civil Procedure, this Court hereby Orders that Defendants City of Cleveland, Mayor Frank G.
Jackson, Michael McGrath, Calvin D. Williams, Unknown Law Enforcement Officers 1-100,
Mike DeWine, Richard S. Fambro, Armond Budish, David G. Schilling Jr., and their agents are
hereby temporarily restrained and enjoined as follows:
1) From enforcing any and all curfew(s) in force under the Proclamation as of the date and
time of this Order;
2) Defendants and Defendants’ agents are hereby restrained and enjoined from enforcing
any further curfews or other orders that infringe on the Constitutional rights of the Plaintiffs and
citizens of the city of Cleveland, Cuyahoga County, Ohio that is set out under Proclamation by
the Mayor of Cleveland, Defendant Frank G. Jackson.
3) Defendants are hereby restrained and enjoined from enforcing any curfew sought to be
imposed under the current Proclamation or any other subsequent or similar Proclamation that
purports to search, seize, arrest, prosecute, fine, imprison, threaten or otherwise punish/sanction
Plaintiffs and similarly-situated individuals;
Case: 1:20-cv-01220 Doc #: 2-2 Filed: 06/03/20 2 of 2. PageID #: 89
4) Plaintiff shall not be required to post bond because this injunctive relief is requested to
restore them to their constitutional rights and is not in an action for possession of money or
property between the parties.
IT IS SO ORDERED.
_____________________ ______________
JUDGE DATE