Village of Ottawa Hills, motorcyclist OK settlement terms

10/26/2012

McCloskey

THE BLADE/DAVE ZAPOTOSKY
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A motorcyclist shot by an Ottawa Hills police officer during a 2009 traffic stop resulting in his paralysis has agreed to a $5 million settlement with the village.

According to the settlement signed by the parties on Oct. 17, Michael McCloskey will receive a total of $5 million from the village that includes payment for medical expenses. The 14-page document outlines details for an initial lump sum and additional periodic payments that span the remainder of Mr. McCloskey’s life.

“[Mr. McCloskey] understands that the settlement payment of $5,000,000 set forth … is being made in exchange for a full release of liability including any liability for injury related to future medical expenses, and that it is the Plaintiff’s decision and risk as to the amount he determines to set aside for such future medical expenses,” the agreement states. “…In the event of the death of Plaintiff prior to exhaustion of … funds, …any funds remaining in the Claims Settlement Allocation shall be paid to Plaintiff’s estate.”

The settlement resolves a 2009 lawsuit filed in U.S. District Court in Toledo against former officer Thomas White and the village of Ottawa Hills by Mr. McCloskey, who was paralyzed from the waist down after he was shot once in the back during a May 23, 2009, traffic stop. Mr. McCloskey, who uses a wheelchair, claimed in the complaint that his civil rights were violated when he was unjustly shot.

Per the agreement, the parties cannot discuss any aspect of the settlement other than to acknowledge that the dispute had been resolved. The written agreement was made available to The Blade through a Public Records Act request.

The settlement will be paid through the village’s insurance policy. Ottawa Hills buys insurance through an outside provider with a limit of up to $5 million.

Although already agreed to by the parties, Judge David Katz has yet to create a journal entry dismissing the case as settled. Once that is done, the civil litigation will be closed.

Still pending, however, is the criminal case.

White was criminally charged with felonious assault with a gun specificaition. After a week-long trial in Lucas County Common Pleas Court, the jury deliberated for about six hours before reaching a guilty verdict on May 14, 2010.

The following month, White was sentenced to seven years in prison for the assault conviction plus three years for the gun specification. He remains free on a $100,000 bond while an appeal of his conviction and sentence is pending in the Ohio 6th District Court of Appeals.

White claimed in the appeal that he was acting under a good-faith mistake when he fired the shot and so, as a police officer, should be immune from criminal prosecution. Also listed as an error was the contention that it was “unconstitutional to convict White for a firearms specification given he was required to carry [a] firearm in the [course] of his employment.”

Attorneys argued the case before a three-judge panel in March when White’s attorney stated that precedent cases show the standard in reviewing an officer’s actions is “what would a reasonable officer do with the same set of facts.”

An assistant Lucas County prosecutor countered that the appellate court need only look at a dashboard camera recording of the incident from White’s patrol vehicle to see what the jury used to decide White’s guilt.

An opinion has not yet been released.

Contact Erica Blake at: eblake@theblade.com or 419-213-2134.