Gun Shouldn’t Compound Charge Against Cop

     COLUMBUS, Ohio (CN) – A police officer convicted of assault after shooting and paralyzing an unarmed man should not have been additionally penalized for using his service revolver on duty, the Ohio Supreme Court ruled.
     The Feb. 18 ruling means that Ohio must retry former Ottawa Hills police officer Thomas White on a felonious assault charge, without the unconstitutional firearm specification.
     White found himself on the wrong side of the cell after he shot and paralyzed a motorcycle rider in a May 22, 2009, traffic stop.
     Though White claimed he saw the motorist trying to draw a weapon, there was no weapon in the pockets or waist area where he was supposedly reaching.
     With only a sheathed knife clipped to the motorcyclist’s right boot, a Lucas County jury found White guilty.
     The former officer faced a seven-year prison term on the assault charge, to be served consecutively with a three-year mandatory term for the firearm specification.
     An intermediate appellate panel found the firearm specification unconstitutional, however, and slammed the trial court for misleading the jury on the standard for determining the use of deadly force.
     The court found it wrong as well that White was prevented from testifying about the crimes he believed the motorcyclist to have committed.
     Four justices of the Ohio Supreme Court affirmed that ruling Wednesday, against one partial and one full dissent.
     The majority opinion by Justice Terrence O’Donnell explains that “the purpose of a firearm specification is to enhance the punishment of criminals who voluntarily introduce a firearm while committing an offense and to deter criminals from using firearms.”
     “But in contrast to those who freely choose to use a firearm while committing a crime, a firearm specification is not intended to deter a peace officer from possessing a firearm, because the officer is required to carry a firearm and permitted to use it, when necessary in the course of carrying out the duties of a law enforcement officer,” the ruling states (emphasis in original).
     Ohio failed to show that the law does not exempt police officers, the court found.
     “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,” O’Donnell wrote.
     As to the improper jury instructions, the high court found it wrong to inform “the jury that White could establish an affirmative defense if ‘his use of force was objectively reasonable under the circumstances.'”
     “The test for deadly force is not so imprecise … [and] the description … here is vague to the point of misdirection,” O’Donnell wrote.
     Calling such jury instructions “potentially misleading,” the ruling says that “the court failed to give the jury the instructions necessary to weigh the evidence and discharge its duty as fact-finder.”
     Ohio failed as well to defend the restrictions on White’s testimony, claiming that he might have tainted the trial by possibly exaggerating the threat that the motorcycle rider posed during the traffic stop.
     Since the offenses that White believed the suspect had committed “were more probative than prejudicial,” however, the high court found them relevant to whether a reasonable officer would have believed that the suspect could pose a threat.
     “The court then compounded the error when it subsequently instructed the jury that, in evaluating the use of deadly force, it had to ‘consider factors such as the severity of the crime [the suspect] was believed to have committed,’ without having allowed any testimony regarding what those alleged crimes might have been,” O’Donnell wrote.
     The ruling concludes: “Without that testimony, the jury had no basis to conclude that [the suspect] 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, and therefore it could only weigh this factor against White.”
     Justice Judith Lanzinger’s dissent cites a video from Officer White’s police cruiser of the 3 minutes and 45 seconds that White trailed the motorcyclist and his friend on another bike.
     Emphasizing that the riding appeared “unremarkable,” Lanzinger noted what happened when the officer stopped the motorcycles.
     “In a few moments, White exited his patrol car and simultaneously yelled and fired at [the suspect],” the dissent states. “The shooting took place about three seconds after White opened his police car door.”
     Lanzinger claimed the video was more than enough evidence for the jury to determine whether the suspect’s actions warranted White’s response, and that the lower court, therefore, did not abuse its discretion by excluding White’s testimony.
     Agreeing with Ohio’s argument regarding the lack of an exception for police officers to the firearm specification statute, Lanzinger took issue with the majority’s tacit approval of “White’s argument that R.C. 2941.145(A) does not apply to him because the firearm specification applies to ‘criminally-motivated conduct’ rather than ‘a state actor’s objectively unreasonable-split-second-decision aimed to protect society.'”
     “This argument uses semantics to ignore the clear language and intent of the statute and create an unwarranted distinction between ‘criminals’ and ‘police officers,'” the dissent states.
     She concluded: “Rewording the statute to substitute the word ‘criminal’ for ‘offender’ changes the clear meaning of the statute, which is written to apply to all offenders. The statute does not except anyone from its purview, and neither status nor occupation is determinative.”
     Lanzinger had taken issue with the majority’s findings on the jury instructions and the exclusion of White’s testimony.
     Justice Paul Pfeifer said he agreed with Lanzinger on those two points but concurred with the majority on the unconstitutionality of the firearm specification.

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