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COLUMBUS — Several members of the Ohio Supreme Court today obviously struggled with the idea that a law written to further punish gun-wielding criminals could also be applied to a police officer who uses his gun while on duty.
But some on the court also seemed to struggle with the question of whether a police officer should be treated differently than anyone else found to have committed the same crime.
The high court is considering the case of former Ottawa Hills officer Thomas White who shot and paralyzed motorcyclist Michael McCloskey after a traffic stop early in the morning of May 23, 2009. A Lucas County jury later convicted White of felonious assault with a firearm specification that automatically added three years to the otherwise seven-year sentence.
The Toledo 6thDistrict Court of Appeals, however, found last year that the application of the firearm specification to be unconstitutional in this case and ordered a new trial.
“Why put this court in the position of having to make the call of constitutionality as applied?” asked Justice Paul Pfeifer. “Why not just take that off the table? I know the original reasons for the gun spec, and this surely doesn’t fit. … Common sense tells you the legislature didn’t intend this to be applied to this kind of a situation.”
Justice William O’Neill seemed to agree.
“Can you tell me why a police officer carrying a gun, which he is required to do, ends up with an enhanced penalty,” he said. “I don’t understand that.”
County Assistant Prosecutor Evy Jarrett, however, told the court that White was not required to use the gun.
“He’s certainly not required to use it in a means that is later found to be a criminal act,” she said. “Once he has crossed that line into committing felonious assault, the firearm specification can appropriately be applied.”
White’s Columbus attorney, Peter Galyhardt, disagreed.
“He’s a state actor,” he said. “It’s fundamentally different.”
The impact of the case could spread well beyond just Ottawa Hills, prompting both the state and national Fraternal Order of Police to get involved.
“You have to understand that a police officer acting and discharging his service weapon in the line of duty is just fundamentally different from the armed robber holding up a gas station,” said the unions’ Columbus attorney, Christina Corl.
Ms. Jarrett, however, had argued that the law creating the firearm specification does not exempt police officers.
“Isn’t the idea that the law is to apply equally without respect to persons and in this situation the state looked at the individual without regard to status?” Justice Judith Lanzinger said. “That’s the question that we need to deal with, whether there should be an exception because of the nature of the individual.”
White’s attorney has also argued that the jury should have been expressly given instructions that the police officer could make a mistake in using his firearm, but, given the circumstances at the time, could still not be criminally liable. The 6th District agreed in its decision to order a new trial.
The Supreme Court did not issue an immediate ruling in the appeal. White remains free on $100,000 bond.