Mayberry trial not guilty

OU student Michael Mayberry, middle, was found not guilty of criminal trespassing during sit-in protests at OU's Baker Center Feb. 1. Mayberry's attorney, Pat McGee, managing attorney for Student Legal Services, is at right, and his mother at left.

Charges against 54 Ohio University students and others - who were arrested for criminal trespassing during the Feb. 1 sit-in protest in Baker University Center - were dismissed in Athens County Municipal Court Wednesday.

The dismissals come after OU student and protest organizer Michael Mayberry was found not guilty Monday of criminal trespassing in a case arising from that same sit-in, Athens County Municipal Court Judge Todd Grace ruled. A Municipal Court clerk confirmed the charges had been dismissed Wednesday afternoon.

OU Police Chief Andrew Powers announced Wednesday that he has asked the city prosecutor’s office to drop criminal trespassing charges against 54 other protesters arrested during the same protest. However, he made it clear that he still believes the protest was “unsafe” and that his response was appropriate.

Grace issued the ruling Monday (stemming from a bench trial March 20) that Mayberry had engaged in “constitutionally protected speech and assembly” in the Baker Center fourth-floor rotunda. The prosecution failed to prove that Mayberry lacked legal privilege to be present in the building, Grace ruled. Because the university had previously allowed a protest to continue in Baker Center in 2014, Grace found that the rotunda was a “designated public forum.”

“In many ways, this creates the worst possible situation for future restrictions to be enforced upon protesters in the Baker Center rotunda,” Grace wrote. “The space has been opened as a forum for some public discourse, but no criteria has been provided regarding who else will be able to use the space or under what restrictions the space can be used for discourse.”

The OU Police and other law-enforcement agencies arrested 70 people – mostly students – a few hours after they began the sit-in on Baker Center’s fourth floor on Feb. 1. The police charged the protesters with criminal trespassing. 

Criminal trespassing is a fourth-degree misdemeanor, carrying a maximum $250 fine and the possibility of up to 30 days in prison. Fifteen of the 70 students who were arrested during the nonviolent sit-in protest already pleaded “no contest” to a lesser minor misdemeanor charge of disorderly conduct, prior to the charges being dismissed. After Grace's "not guilty" verdict for Mayberry, that left the fate of the 54 other protesters hanging in the balance, up until a court official Wednesday confirmed that the city prosecutor had dropped the criminal trespassing charges against them.

Powers said Wednesday that, out of fairness to the other “similarly situated defendants,” he has asked the city prosecutor’s office to dismiss the charges against the rest of the protesters.

“My department remains committed to the rule of law and the protection of constitutional rights,” Powers said. “To that end, I look forward to working with senior leadership of the university to review our institutional policies and procedures to ensure they protect everyone’s First Amendment rights, while also providing law enforcement with the tools we need to effectively manage public events and keep our community safe.”

OU Interim President David Descutner said he supports Powers’ decision, and said that OU has been reviewing its “policies and procedures” since the protest to ensure “best practices moving forward.”

“That process is underway and we expect to have an updated policy soon that not only protects the First Amendment rights of all but also is consistent with the court’s ruling and with the values of Ohio University,” Descutner wrote.

Grace wrote that the state did not provide enough evidence to suggest a compelling reason that the students didn’t have the right to express themselves in the rotunda.

“It is important to note that there was no evidence of actual violence presented. (OU Police) Chief Powers’s testimony was that he was concerned that having so many people with strong, and differing, opinions in the rotunda presented a substantial risk of escalation,” Grace wrote in his decision. “However, the U.S. Supreme Court has held that ‘fear or apprehension of a disturbance is not enough to overcome the right to freedom of expression on a college campus.’”

The judge said that concerns about blocking the entrance and exits to the building were not supported by testimony or videos of the protest.

The state’s response to a filing by Mayberry’s attorney, Patrick McGee of Student Legal Services, prior to Grace’s decision argued that Powers’ request to ask the protesters to leave the Baker Center Rotunda was “content-neutral” and a reasonable restriction of the use of the building because of his safety concerns.

City Prosecutor Tracy Meek argued that Powers believed tension between protesters and others walking past the scene presented a “volatile situation.” Powers had testified that he had seen a protester rip a pro-Trump sign out of a passersby’s hand, and that some counter-protesters had appeared inside and outside the building that night.

“...When 250 additional people are crammed into a building entryway, safety becomes an issue. It would not be appropriate for an individual to sit in the middle of the rotunda and read a book as it would impede the flow of foot traffic,” Meek wrote.

Still, Grace wrote that because the university had kept Baker Center open in 2014 past its closing time of midnight, after an estimated 100-150 students engaged in a sit-in protest in response to the non-indictment of a police officer in the killing of Michael Brown in Missouri, OU can only exclude speakers in the area in limited situations.

McGee observed after the trial that this was a “very tough decision” on Grace’s part. However, McGee said the fact that Baker Center is OU’s student center, and the fact that OU had allowed protesters to stay in Baker Center past the center’s closing in 2014 for another protest, had set up a precedent.

“I think it was a win for free speech and for us all,” McGee said.

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