Local case gets to top Ohio court

Ex-Ottawa Hills police officer’s appeal to highlight gun issues

5/23/2013

McCloskey

THE BLADE/DAVE ZAPOTOSKY
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Whether a police officer who is required to carry a gun can be prosecuted for using it will be among the issues before the Ohio Supreme Court in an appeal of the case of an ex-Ottawa Hills officer.

The high court agreed unanimously Wednesday to review a Jan. 11 decision by the Ohio 6th District Court of Appeals to reverse the conviction of Thomas White, 30, for felonious assault with a gun specification for the May, 2009, shooting of motorcyclist Michael McCloskey.

Citing problems with jury instructions in White’s weeklong trial in Lucas County Common Pleas Court, the appeals court ordered a new trial and threw out the firearms specification.

“The Supreme Court now is hopefully going to answer this question for the entire state of Ohio,” Lucas County Prosecutor Julia Bates said Wednesday. “If you’re a police officer and you carry a gun and then you use that gun to commit a crime, can you be charged with a gun spec?”

In addition to seven years for felonious assault, White was sentenced in June, 2010, to a mandatory three-year term for using a gun to commit the crime. The appeals court said in its 2-1 ruling that it was unconstitutional to apply the firearm specification to a police officer. Mrs. Bates disagrees.

“I think it should be actionable because you can’t have people lawfully carrying weapons — just like the military people — and then shooting people who are innocent,” she said, adding that because her office works closely with police, the White case “put us in a difficult position in the first place.”

White was seen on video from his patrol’s car dashboard camera shooting Mr. McCloskey in the back after pulling him over for a traffic violation. The defense argued that Mr. McCloskey had moved his hand, causing White to believe he was reaching for a gun. Mr. McCloskey, who did not have a gun, was paralyzed from the waist down from the officer’s bullet.

In ordering a new trial for White, who remains free on bond, the appeals court said the jury was not given proper instructions of law and therefore did not have proper information before deliberations.

White’s appellate counsel, Deborah Rump, could not be reached for comment Wednesday. White’s defense attorney, Jerome Phillips, said he was not surprised the high court agreed to hear the case because it raised a significant constitutional issue.

“I would’ve been shocked if they didn’t accept it because it’s a very important case based on a number of legal issues, probably the most important of which is whether a police officer can be charged with a handgun specification in the line of duty,” he said. “It’s significant to all law enforcement officers because it has an effect on their ability to do their jobs.”

Jeff Lingo, chief of the criminal division for the prosecutor’s office, said he was encouraged to see that all seven Supreme Court justices felt the state’s appeal should be heard and accepted it on all five propositions of law cited by the prosecutor’s office.

“Having been the trial lawyer in the case, I am glad the Supreme Court accepted it for review,” he said. “Although I respect the 6th District’s opinion, I strongly disagree.”

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-213-2134.