dissenting.
{¶ 14} Appellees were arrested for violating R.C. 2909.02, which provides:
{¶ 15} “(A) No person, by means of fire or explosion, shall knowingly do any of the following: .
{¶ 16} “(1) Create a substantial risk of serious physical harm to any person other than the offender;
{¶ 17} “(2) Cause physical harm to any occupied structure.”
{¶ 18} In order for appellees to succeed in this Section 1983 claim, they must prove that their arrests violated their right to free speech and that a policy of the city caused the violations. Canton v. Harris (1989), 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412.
{¶ 19} The majority concludes that the facts implicate the city’s interest in public safety, placing significance on the fact that pieces of the burned effigy “land[ed] in the proximity of the protesters.” However, because the protesters were charged with violating R.C. 2909.02, the city’s sole interest in this particular case was to protect “any person other than the offender” or “any occupied structure.” The effigies were burned outdoors in a paved area cordoned off by metal barricades, and firefighters with extinguishers were nearby. The most one can conclude is that appellees placed themselves at “a substantial risk of serious physical harm.” Even though one might be concerned with the potential danger of burning effigies, there is no evidence that anyone other than the protesters were placed in any risk of serious physical harm resulting from appellees’ conduct. Therefore, the city had no authority to arrest appellees based on R.C. 2909.02, and the arrests interfered with their freedom of expression guaranteed by the First Amendment.
*444{¶ 20} In support of their contention that a policy of the city caused the constitutional violations, appellees assert that the city failed to adequately train its police officers how to respond to protesters who burn effigies. Under the “failure to train” theory, a city can be held liable for a violation of constitutional rights by one of its police officers, pursuant to Section 1983, “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Canton, 489 U.S. at 388, 109 S.Ct. 1197, 103 L.Ed.2d 412. Deliberate indifference may be shown where the need for more or different training is obvious and where “the inadequacy [is] likely to result in the violation of constitutional rights.” Id. at 390, 109 S.Ct. 1197, 103 L.Ed.2d 412.
{¶ 21} At trial, appellees offered evidence that they previously had been arrested for burning effigies at Jacobs Field. Appellees also elicited testimony from Cleveland police and fire department personnel that the city had not conducted special training on the constitutional implications of responding to symbolic burnings. Appellees have presented evidence upon which a reasonable jury could determine that the city was deliberately indifferent to individuals’ constitutional rights. Accordingly, I believe that the court of appeals properly reversed the judgment of the trial court and remanded the cause for determination whether a policy of the city caused the constitutional violation.