The case of an Ottawa Hills police officer convicted of felonious assault for shooting a man during a traffic stop returns to the trial court following an Ohio Supreme Court decision today.

The Supreme Court ruled that the firearms specification against the officer did not apply in his case, the jury instructions misled the jury in evaluating the officer’s use of deadly force, and the trial court should not have excluded testimony about the crimes the officer believed the victim had committed.

In an opinion written by Justice Terrence O’Donnell, the court affirmed the judgment of the Sixth District Court of Appeals.

Background
In the early morning hours of May 23, 2009, Michael McCloskey Jr. and Aaron Snyder were riding their motorcycles to McCloskey’s home in Ottawa Hills when Officer Thomas C. White began following them in a marked police cruiser. After observing the motorcycles crossing the center yellow lines, making incomplete stops at stop signs, weaving in the lane, and exceeding the speed limit, White decided to make a traffic stop and called another officer for backup.  

At an intersection, the motorcycle riders appeared to talk and look back at White before they suddenly sped off. White thought they were fleeing and pursued them with his siren and lights on. The other officer then arrived and apprehended Snyder, while McCloskey stopped and remained seated on his motorcycle with the motor running. White got out of his vehicle, drew his gun, and ordered McCloskey to put his hands up. Thinking that McCloskey made a motion with his right arm to pull a weapon, White fired, hitting McCloskey in the back and paralyzing him.

White found no weapon around McCloskey’s waist or in his pockets, though McCloskey had a sheathed knife attached to his boot.

Following guilty verdicts from a jury, the court sentenced White to seven years in prison for felonious assault along with a mandatory three-year prison term for a firearm specification.

White appealed, and the Sixth District reversed the felonious assault conviction and ordered a new trial. The appeals court also determined that the firearms specification was unconstitutional as applied to White’s conduct and dismissed it with prejudice. The state filed an appeal with the Ohio Supreme Court.

Firearms Specification
Justice O’Donnell explained that the firearms specification is designed “to enhance the punishment of criminals who voluntarily introduce a firearm while committing an offense and to deter criminals from using firearms.” However, he pointed out, the legislature did not intend to deter a police officer from possessing a firearm, because the officer is required to carry a firearm and is permitted to use it, when needed, in the line of duty.

“Given the need for hurried judgments without the chance for reflection, and given the extensive training that causes officers to act reflexively when encountering potentially dangerous situations, it is neither just nor reasonable to apply a firearm specification to a police officer involved in an on-duty shooting based only on a showing of poor judgment or negligence in using force,” he noted.

“[T]he General Assembly did not intend the firearm specification to apply to a police officer who fired a gun issued to him to protect himself, fellow officers, and the public from a person he thought was about to brandish a weapon,” Justice O’Donnell wrote. “In those circumstances, it cannot be said that the officer used the firearm in an attempt to ‘facilitate’ an offense. Rather, the statute requires that a distinction be drawn between a police officer who acts in accord with the duty to uphold the law and one who abandons that duty by committing a criminal offense.”

Jury Instructions
Justice O’Donnell discussed two decisions from the U.S. Supreme Court involving police use of force. In Tennessee v. Garner (1985), the court ruled that the use of deadly force is constitutionally unreasonable unless “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” In Graham v. Connor (1989), the court held that all claims of excessive force, whether deadly or not, by law enforcement should be analyzed under the Fourth Amendment’s reasonableness standard – that is, from the perspective of a reasonable officer at the scene.

Justice O’Donnell concluded that the jury instructions presented in this case failed to provide a correct and concise statement regarding when deadly force is justified pursuant to Garner. The trial court also gave jurors an extraneous instruction requiring White to have believed he was in “imminent danger of death” or that he or someone else was “about to killed” before he could use deadly force.

“The jury instructions in this case are potentially misleading, because without a proper instruction on the use of deadly force and justification, the court failed to give the jury the instructions necessary to weigh the evidence and discharge its duty as fact-finder,” he reasoned.

Officer Testimony
Justice O’Donnell explained that the trial court should not have prevented White from identifying the offenses he thought McCloskey had committed before the shooting because those offenses were relevant to determining whether McCloskey presented a threat to the officer. The court then “compounded the error” by instructing the jury to evaluate the use of deadly force by considering the severity of any crimes White thought McCloskey had perpetrated, Justice O’Donnell noted.

“Without that testimony, the jury had no basis to conclude that McCloskey was believed to have committed any crimes, and it could not gauge whether the seriousness of those potential offenses would have alerted a peace officer to a potential threat …,” he concluded.

Votes of Justices
Joining the court’s majority were Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, and William M. O’Neill. Chief Justice Maureen O’Connor also wrote a concurring opinion, which Justice French joined.

Justice Paul E. Pfeifer concurred in part and dissented in part, and Justice Judith Ann Lanzinger dissented.

Chief Justice O’Connor’s Concurrence
The chief justice focused her concurrence on the distinction inherent in the firearm specification between police officers and those not in law enforcement.

Given the facts of this case, applying the firearm charge to White “leads to an unreasonable and absurd result,” Chief Justice O’Connor reasoned. “[T]he [statutory] firearm specification cannot be interpreted so broadly as to apply to an officer accused of, or convicted of, making an unreasonable or unjustified mistake of fact or judgment regarding a perceived threat while carrying out his or her official duties.”

Even if the jury finds that White committed felonious assault, the firearm specification does not apply in this case, she concluded.

Also, she added that the dissent overlooked evidence about the officer’s mistaken reasons for thinking that McCloskey was pulling a weapon – such as the different vantage point the officer had versus the view shown from the dashboard camera.

Justice Pfeifer’s Opinion
While Justice Pfeifer agreed with the majority that the firearm specification is inapplicable in this case and concurs with the court’s conclusions on two other claims, he dissented from the majority’s rulings about the jury instructions and the exclusion of the officer’s testimony. He joined Justice Lanzinger’s dissent on those issues. He would return the case to the Sixth District to consider arguments that were earlier found to be moot.

Justice Lanzinger’s Dissent
In her dissent, Justice Lanzinger described the events leading to the McCloskey shooting as shown in the video, noting that the officer simultaneously yelled and fired at McCloskey within about three seconds after opening his car door. She concluded that the footage “provides overwhelming support for the jury’s verdict.”

From her perspective, the omission of the Garner deadly force statement in the jury instructions was not reversible error. The Graham decision clarified Garner, and the jury instructions complied with both rulings, she reasoned.

In addition, she wrote that the jury was in fact able to consider the crimes McCloskey may have committed and the seriousness of those offenses. The video shows McCloskey’s actions on his motorcycle before the shooting, and White gave a “running commentary” of the possible traffic violations to the jury members while they watched the footage.

On the weapons charge, Justice Lanzinger noted that the statute refers to “offenders” and contains no exception for police officers or anyone else who must carry a firearm.

“Police officers are human,” she wrote. “We know that any human being, whether a police officer, a judge, or a priest, can commit an offense and be an ‘offender.’ The law must apply to all or it applies to none.”

“[The majority’s] analysis ignores a fundamental point: A jury found White guilty,” she added. “He committed the offense of felonious assault by knowingly shooting McCloskey with a firearm, making White an offender. His use of the firearm to facilitate the offense makes him subject to the firearm specification.”

“While it cannot be debated that police officers often are the first responders and that they must make split-second decisions regarding the use of force, in this case the jury determined unanimously that White’s actions were not those of a reasonable officer under the circumstances,” she explained. “The majority should uphold the jury’s verdict and abstain from reweighing the facts of the case.”

Acknowledging the recent high-profile accusations of the use of unwarranted force by police officers, Justice Lanzinger noted, “It is obvious that there is a pressing need for officers to exercise the utmost caution in discharging their firearms while at the same time protecting their own safety. But as the public attention on this controversial matter shows, issues of the type presented here deserve the full consideration and debate of the legislative process. I believe that the General Assembly, rather than the seven justices of this court, should make this public-policy decision.”

She would reverse the appellate court’s judgment and uphold both the felonious assault conviction and the firearm specification.

2013-0109. State v. White, Slip Opinion No. 2015-Ohio-492.

View oral argument video of this case.

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