Lead Opinion
{¶ 2} Because the firearm specification does not apply in this case, because the jury instructions misled the jury, and because the trial court erroneously excluded relevant evidence regarding the offenses that White believed McCloskey had committed, we affirm the judgment of the court of appeals and remand the matter for further proceedings consistent with this opinion.
Facts and Procedural History
{¶ 3} On the evening of May 22, 2009, McCloskey and Aaron Snyder rode their motorcycles to distribute business cards promoting Snyder’s business and flyers advertising “Bike Nights” at the Omni, a concert and club destination located on West Bancroft Street in Toledo where McCloskey worked. Around 1:00 a.m. on the morning of May 23, 2009, they went to the Omni and met Klint Sharpe, аnd the three men decided to go to McCloskey’s home in Ottawa Hills. McCloskey and Snyder rode their motorcycles and Sharpe followed in his car.
{¶ 4} At the intersection of Secor and Indian Roads, Sharpe took a different route, and White, who was on patrol in Ottawa Hills in a marked police cruiser, began to follow McCloskey and Snyder, who mistook the cruiser’s headlights as belonging to Sharpe’s car as they continued on Indian Road. White observed them weaving from side to side and activated his cruiser’s dashboard video camera to document their driving. He saw McCloskey cross the center yellow lines multiple times, make incomplete stops at stop signs, weave within the lane, and exceed the speed limit.
{¶ 5} White radioed another patrol officer, Christopher Sargent, who was on duty that night, and told him that he “wanted to stop a couple of motorcycles” and thought they “were messing with him.” White continued trailing McCloskey and Snyder as he waited for Sargent to arrive.
{¶ 6} McCloskey and Snyder stopped for about ten seconds at an intersection, and White believed they talked and looked back at him before abruptly speeding away toward Central Avenue. Thinking that the motorcyclists were fleeing, he activated his cruiser’s siren and lights and radioed the dispatcher that he was in pursuit.
{¶ 8} At the same time, McCloskey stopped his motorcycle, and White exited his cruiser, drew his service weapon, and yelled to McCloskey to put his hands up. McCloskey remained seated on his motorcycle with the motor running, and White later testified that he had seen him turn with his “right arm and elbow * * * making a drawing motion to the right,” causing him to believe that McCloskey “was pulling a weapon.” At that point, White fired one shot that struck McCloskey in the back, paralyzing him and causing the motorcycle to fall on his leg. White approached and searched McCloskey’s pockets and waist area but found no weapon. Another Ottawa Hills police officer subsequently found a sheathed knife clipped to McCloskey’s right boot.
{¶ 9} A Lucas County Grand Jury indicted White on one count of felonious assault in violation of R.C. 2903.11(A)(2) with a firearm specification pursuant to R.C. 2941.145. The matter proceeded to a jury trial, and at the close of the state’s case-in-chief, White moved for acquittal and also argued that the firearm specification should not apply to him. The trial court denied the motion, determining that the state had presented sufficient evidence to provе both the crime of felonious assault and the firearm specification.
{¶ 10} White testified in his defense, but the trial court sustained the state’s objection and prevented him from testifying about offenses he believed McCloskey had committed. The defense also presented expert testimony that McCloskey’s actions would have led a reasonable police officer to perceive a threat of physical harm, because McCloskey had appeared to flee from police, had not raised his hands as instructed, and had made suspicious movements consistent with visually targeting the officer and reaching as if to pull a weapon from his waistband.
{¶ 11} After deliberations, the jury returned verdicts finding White guilty of felonious assault and the accompanying firearm specification. The court imposed a seven-year prison term for the felonious assault conviction and ordered that it be served consecutively to a mandatory three-year term for the firearm specification.
{¶ 12} White appealed, and the court of appeals reversed the felonious assault conviction and remanded the matter for a new trial. It further held that the firearm specification was unconstitutional as applied to White and ordered it dismissed with prejudice.
{¶ 13} The state appealed and presented five propositions of law, which we accepted for review.
Use of Deadly Force by Police
{¶ 14} At common law, a law enforcement officer had a privilege to use force in the discharge of his official duties. Swedlund v. Foster,
An officer, in the performance of his duty as such, stands on an entirely different footing from an individual. He is a minister of justice, and entitled to the peculiar protection of the law. Without submission to his authority there is no security, and anarchy reigns supreme. He must, of necessity, be the aggressor, and the law affords him special protection.
Id. at 537-538. See also Stinnett v. Virginia,
{¶ 15} In making arrests for felonies and misdemeanors, an officer could use whatever force was reasonably necessary — including deadly force — if the suspect offered resistance; and in the case of a fleeing felon, deadly force could be used even if the offender presented no imminent threat of harm. 2 Torcia, Wharton’s Criminal Law, Section 124, at 156; 2 LaFave, Substantive Criminal Law, Section 10.7, at 173-178; Schumann v. McGinn,
{¶ 17} Ohio courts also recognized that a police officer is justified at common law to use reasonable force in the course and scope of his law enforcement duties. As the Second District Court of Appeals explained in State v. Sells,
“A peace officer duly empowered is not liable for injuries inflicted by him in the use of reasonably necessary force to preserve the peace and maintain order, or to overcome resistance to his authority. Thus an officer making an arrest is justified in using sufficient force to subdue the prisoner although not acting in self defense. However, if unnecessary violence is used by the officer in accomplishing his purpose, * * * or if he assaults the person whom he is arresting without just cause or excuse, especially after resistance to his authority ceases, * * * he loses the protection of the law.”
Id. at 357-358, quoting with approval 6 Corpus Juris Secundum, Assault and Battery, Section 23, at 825 (1937); see also Skinner v. Brooks,
{¶ 18} As lеgislatures expanded the crimes classified as felonies beyond those established at common law, however, some courts questioned the use of deadly
{¶ 19} In Tennessee v. Garner,
{¶20} The Supreme Court affirmed, holding that apprehensiоn by use of deadly force is a “seizure” subject to the reasonableness requirement of the Fourth Amendment, and it determined that the use of deadly force to prevent the escape of all felony suspects is constitutionally unreasonable. Id. at 7, 11. Thus, the court rejected the common-law “fleeing felon” rule, which had allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, and it decided that “[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.” Id. at 11.
{¶ 21} The court concluded that the Fourth Amendment imposes greater protections than the common law rule, but it did not hold that the Tennessee statute was unconstitutional on its face or preclude the use of deadly force in all circumstances. Id. Rather, the court explained that a police officer may use deadly force “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Id. The court gave two examples of the constitutional use of deadly force: “if the suspect threatens the officer with a weapon or thеre is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of
{¶ 22} The court revisited Garner in Graham v. Connor,
{¶ 23} The court further clarified:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. * * * The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.
Id. at 396-397. The reasonableness of an officer’s use of force, the court explained, “requires careful attention to the facts and circumstancеs of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. See also Scott v. Harris,
{¶ 24} Although the Supreme Court’s decisions in Garner and Graham involved an officer’s civil liability for deprivation of civil rights under color of law, these cases nonetheless help to define the circumstances in which the Fourth Amendment permits a police officer to use deadly and nondeadly force.
{¶ 25} Courts therefore apply Garner and Graham in reviewing criminal convictions arising from a police officer’s use of deadly force. See, e.g., United States v. Ramos,
The Firearm Specification
{¶ 26} The state maintains that principles of due process are not violated by applying the firearm specification contained in R.C. 2941.145 to a law enforcement officer indicted for an on-duty shooting. It notes that the General Assembly has provided no exception for police officers, and it also argues that imposing a firearm specification for an unjustified shooting neither infringes on any fundamental right nor shocks the conscience. According to the state, the legislature had a rational basis to deter all offenders from using firearms to commit crimes, regardless of whether the crime is committed by a member of the “criminal world” or an on-duty police officer. It urges that even if White’s duties as a peace officer required him to carry a firearm, those duties did not require him to discharge it, so that when he committed a crime by firing it at McCloskey, it was not a legitimate act of law enforcement or within the course and scope of his official duties. The state cites decisions from other jurisdictions rejecting due process claims brought by on duty police officers whose sentences were enhanced based on the use of a firearm while committing an offense, and it asserts that the only question is whether the legislature intended the enhancement to apply to police officers. It also maintains that because there have been no prior decisions holding the firearm specification unconstitutional, the trial court did not commit plain error by applying it here.
{¶ 27} White initially asserts that the firearm specification contained in R.C. 2941.145 violates due process and is unconstitutional as applied to an on duty police officer charged in connection with a police shooting, because the General Assembly enacted R.C. 2941.145 to punish the voluntary decision of a criminal to use a gun while committing a crime. He also states that he lacked criminal intent, and because he was required to possess a service weapon as a law enforcement officer, he should face criminal liability only if he discharged his firearm while acting outside the course and scope of his law enforcement duties. White contends that there is no rational basis for imposing a firearm specification on an officer who possesses, brandishes, or discharges his firearm while on duty,
{¶ 28} Although the parties dispute whether the firearm specification contained in R.C. 2941.145 is constitutional as applied to White, we have consistently recognized that “ ‘when a case can be decided on other than a constitutional basis, we are bound to do so.’ ” State v. Swidas,
{¶ 29} As we explained in State v. Taylor,
{¶ 30} R.C. 2941.145(A) imposes a mandatory three-year prison term for offenses committed when “the offender had a firearm on or about the offender’s person or under the offender’s control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense.” (Emphasis added.)
{¶ 31} 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. In enacting firearm specifications, the General Assembly recognized that “a criminal with a gun is both more dangerous and harder to apprehend than one without a gun.” State v. Powell,
{¶ 32} R.C. 2935.03(A)(1) mandates that peace officers “shall arrest and detain, until a warrant can be obtained, a person found violating, within the limits of the political subdivision * * * a law of this state” or a municipal ordinance. Further, R.C. 2921.44(A)(2) makes it a second-degree misdemeanor for a law enforcement
{¶ 33} The safety of the officer and the public depends on the officer’s ability to gauge the dangerousness of a suspect and react immediately according to training and experience. Yet as the court explained in Cty. of Sacramento v. Lewis,
{¶ 34} We therefore conclude that the 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. 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.
{¶ 35} The firearm specification may apply if the facts of a given case demonstrate that the actions of the officer display criminal misconduct constituting a departure from the course and scope of official duties, as police officers have no license to commit crimes under color of office. See, e.g., United States v. Ramos,
{¶ 36} Police officers who abandon their employment and depart from the course and scope of their law enforcement duties or deviate from departmental policy by engaging in criminal activity, as for example, by robbing a drug dealer at gunpoint, would subject themselves to a firearm specification because they have voluntarily chosen to engage in criminal activity. In those kinds of circumstances, a police officer stands on equal footing with other members of the public who commit crime while displaying, brandishing, possessing, or using a firearm.
{¶ 37} In contrast, a police officer who does not abandon employment or act outside the course and scope of official duties or contravene departmental policy by engaging in criminal activity, but who misperceives a threat of harm, displays, brandishes, possesses, or uses a firearm while engaging in legitimate law enforcement duties does not become subject to the firearm specification; the officer’s actions in such a situation involve a judgment determination regarding the use of the firearm.
{¶ 38} It is not apparent in this case that White abandoned his employment or aсted outside the course and scope of his official duties or against departmental policy or protocol. The village of Ottawa Hills authorized and required White to carry a firearm in pursuit of his duties as a peace officer, and it expected him to exercise his judgment in deciding whether to use a weapon based on his training and experience. The only question presented by this record concerns the reasonableness of the force he used, not whether White acted within the course and scope of his duties as an officer of the village of Ottawa Hills at the time that he pursued and stopped McCloskey and discharged his weapon.
{¶ 39} The General Assembly did not intend a firearm specification to be applied to a police officer in these circumstances, and therefore this proposition of law is not well taken.
Pretrial Dismissal Based on Civil Immunity
{¶ 40} Next, the state urges that Ohio does not permit pretrial dismissals of criminal charges based on civil immunity principles, nor does an officer’s qualified immunity for civil liability imposed by 42 U.S.C. 1983 preclude criminal prosecution for state law offenses. In response, White points out that because the appellate court did not hold that an officer’s qualified immunity allows the pretrial dismissal of criminal charges, the state seeks an advisory opinion.
{¶ 41} In its opinion, the appеllate court observed that “immunities of the kind resembling qualified immunity might also protect police officers from criminal
Jury Instructions on Use of Force
{¶ 42} The third proposition of law states:
In a trial of a police officer charged with felonious assault for an on-duty shooting, the court commits neither an abuse of discretion nor plain error if it instructs the jury to determine, from the perspective of a reasonable police officer, whether the officer’s use of deadly force was objectively reasonable, or whether the officer had reasonable grounds to believe that he or a fellow officer was in imminent danger of death or great bodily harm.
{¶ 43} At trial, the court charged the jury:
Now, as to the affirmative defense of justification. The defendant has asserted the affirmative defense that he was justified in his use of force in the exercise of his official duties as a рolice officer. The burden of going forward with the evidence of the affirmative defense and the burden of proving that offense [sic] are upon the defendant.
In order to establish this defense, the defendant must prove by a preponderance of the evidence that he was acting in pursuit of his official duties and that his use of deadly force was objectively reasonable under the circumstances.
Now, excessive force. If the defendant used more force than reasonably necessary in pursuing his official duties, the defense of justification is not available.
Test for reasonableness of force. In deciding whether the defendant had reasonable grounds to believe Officer Sargent or himself was in imminent danger of death or great bodily harm, you must put yourself in the position of the defendant, with his characteristics and his knowledge,*289 and under the circumstances and conditions that surrounded him at the time.
You must consider the conduct of Michael McCloskey and decide whether his acts caused the defendant reasonably and honestly to believe that Officer Sargent or himself was about to be killed or receive great bodily harm.
Reasonableness must be judged from the perspective of a reasonable police officer in light of all the facts and circumstances confronting the officer at the time and in the moments before the use of deadly force rather than with 20/20 vision of hindsight.
What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. Allowance must be made for the fact that officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.
In determining whether the defendant acted reasonably in his use of force in the pursuit of his official duties, you must consider factors such as the severity of the crime Mr. McCloskey was believed to have committed, whether Mr. McCloskey posed an immediate threat to the safety of defendant or another person, and whether Mr. McCloskey was actively resisting arrest or attempting to evade arrest by flight.
(Emphasis added.)
{¶ 44} The state urges us to reject the appellate court’s determination that these instructions misled the jury by failing to provide a charge from Tennessee v. Garner,
{¶ 45} White maintains that the trial court’s instructions were imprecise and misleading because the central question at trial was whether, in the moments before he fired, he could have reasonably perceived an imminent threat to his or his fellow officer’s safety based on McCloskey’s actions. But because the jury was not asked to consider the reasonableness of White’s perception of a threat, he
{¶ 46} A trial court has broad discretion to decide how to fashion jury instructions, but it must “fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen,
{¶ 47} Here, it is not disputed that White used deadly force in the line of duty, and therefore the jury charge should have been tailored to instruct the jury on when a police officer is justified in using deadly force.
{¶ 48} Because a police officer’s justification to use deadly force is limited by the Fourth Amendment, the appropriate instruction on deadly force is taken from Tennessee v. Garner,
{¶ 49} The trial court did not include this statement in its instructions or otherwise provide a correct and concise statement regarding when deadly force is justified pursuant to Garner. Rather, the court informed the jury that White could establish an affirmative defense if “his use of deadly force was objectively reasonable under the circumstances.” But the test for deadly force is not so imprecise. Garner defines the very circumstances to be considered in a deadly force case such as this; that is, when there is probable cаuse for a police officer to believe that the suspect poses a threat of serious physical harm to the officer or others. The description of “objectively reasonable under the circumstances” here is vague to the point of misdirection.
{¶ 50} The court followed this with extraneous instructions on “excessive force,” explaining that White could not avail himself of the affirmative defense if he used “more force than reasonably necessary.” It then told the jury to use an objective standard to consider whether White believed that he or his fellow officer “was in imminent danger of death or great bodily harm” and to consider
{¶ 51} The trial court appears to have based most of its instructions on the reasonableness analysis set forth in Graham v. Connor,
{¶ 52} The relevant principle for jury instructions is not one of abstract correctness, but is whether an instruction' — even if a correct statement of law — is potentially misleading. See State v. Guster,
{¶ 53} 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. See Rasanen v. Doe,
{¶ 54} One of the dissents characterizes the Supreme Court’s opinion in Graham as somehow modifying the deadly force standard announced in Garner. In Graham, the court reviewed a line of authority that had held that a claim of nondeadly excessive force is governed by principles of substantive due process or the Eighth Amendment and that had applied a standard questioning whether the force was applied in “good faith” or “maliciously and sadistically for the very purpose of causing harm.” Graham,
{¶ 55} The appellate court properly determined that the trial court’s instruction on deadly force potentially misled the jury and constituted reversible error. We concur with its analysis and conclusion and therefore reject the state’s third proposition of law.
Mistaken-Belief Jury Instruction
{¶ 56} In its fourth proposition of law, the state maintains that the trial court did not commit plain error when it failed to provide a mistaken-belief instruction. It notes that White never requested a mistaken-belief or mistake-of-fact instruction and argues that even if he had, this court in State v. Wenger,
{¶ 57} White did not specifically request an instruction that it could have been objectively reasonable for him to form the mistaken belief that McCloskey had a weapon, and therefore he has forfeited all but plain error. State v. Davis,
{¶ 58} The court of appeals concluded that the failure to give a mistaken-belief instruction constituted plain error. It explained: “That the ‘knowingly’ element of felonious assault can be negated by a factually-mistaken belief is clearly
{¶ 59} Contrary to the appellate court’s conclusion, the knowledge element of felonious assault was not at issue in this trial because White never disputed that he knowingly fired his service weapon at McCloskey. See State v. Guster,
{¶ 60} Rather, a mistake-of-fact instruction could only relate to White’s affirmative defense of justification in using deadly force. As the court indicated in Saucier v. Katz,
{¶ 61} Here, the trial court informed the jury that a mistaken belief by White that McCloskey had a firearm could be reasonable. It specifically directed the jury to consider only the facts known to White before the use of force and instructed it to judge his actions from the perspective of a reasonable officer in light of the facts and circumstances known to him and without the jury’s benefit of the “20/20 vision of hindsight.” The court informed the jury that “[w]hat constitutes reasonable action may seem quite different to someone facing a possible assailant” and that “[ajllowance must be made for the fact that officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.”
{¶ 62} The trial court’s failure to provide an instruction that a mistaken belief could negate the knowledge element of felonious assault in this case does not rise to plain error becаuse White has failed to demonstrate its effect on the outcome of the trial or that reversal is necessary to prevent a manifest miscarriage of justice. To that extent only, the state’s fourth proposition of law is well taken.
Exclusion of Testimony
{¶ 63} The state asserts that in the trial of a police officer charged with felonious assault for an on-duty shooting, a court does not abuse its discretion in excluding testimony regarding the specific violations and the degree of any offense that the officer believed the suspect may have committed. The state
{¶ 64} The trial court erred by precluding White from answering the question, “What charges on that evening did you feel you could file against Mr. McCloskey if you decided to do so?” The offenses that White believed McCloskey had committed were more probative than prejudicial and related to whether a reasonable officer would have believed that McCloskey 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 seventy of the crime Mr. McCloskey was believed to have committed,” without having allowed any testimony regarding what those alleged crimes might have been. (Emphasis added.)
{¶ 65} 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, and therefore it could only weigh this factor against White.
{¶ 66} This proposition is therefore not well taken.
Conclusion
{¶ 67} The firearm specification contained in R.C. 2941.145 cannot be applied to White in this case, because the facts demonstrate that he was a peace officer authorized and required to carry a firearm and he did not use the firearm to facilitate an offense; i.e., he acted within the course and scope of his law enforcement duties and there is no evidence that he abandoned his employment or substantially deviated from it. Application of the firearm specification under thesе circumstances is outside the scope of the General Assembly’s intent in enacting the firearm penalty provision.
{¶ 68} Further, the trial court gave potentially misleading instructions to the jury regarding the use of deadly force and justification, and it erred in excluding evidence of the crimes that White believed McCloskey had committed — errors that undermined the jury’s ability to gauge the reasonableness of White’s perception of a threat to his or another’s safety.
{¶ 69} Accordingly, the judgment of the appellate court is affirmed, and the matter is remanded to the common pleas court for further proceedings.
Judgment affirmed.
Concurrence Opinion
concurring-.
{¶ 70} I concur in the majority opinion but write separately to emphasize the distinction we recognize regarding the application of R.C. 2941.145(A).
{¶ 71} The majority opinion concludes:
Police officers who abandon their employment and depart from the course and scope of their law enforcement duties or deviate from departmental policy by engaging in criminal activity, as for example, by robbing a drug dealer at gunpoint, would subject themselves to a firearm specification because they have voluntarily chosen to engage in criminal activity.
Majority opinion at ¶ 36.
{¶ 72} But what if a jury finds that criminal liability attaches for a police officer’s use of excessive force for something less than intentional criminal activity, such as an officer’s mistake in judgment regarding the need to use the firearm? What if the jury determines that the use of the firearm was not justified under any circumstances? The question then becomes whether the R.C. 2941.145(A) firearm specification would apply.
{¶ 73} Here, White is subject to criminal liability based on an allegation of unreasonable force arising from a mistaken decision while engaging in his law-enforcement duties. There is no allegation that White abandoned his employment and intentionally engaged in criminal conduct. Thus, the crux of the issue is whether White’s mistake of judgment in carrying out his official duties was reasonable, not whether White intentionally engaged in criminal conduct. And as part of his employment, White, like other similarly situated police officers, was required to carry and use a firearm if necessary. He did not carry or use his firearm to facilitate a criminal offense. Instead, he used it in an attempt to do his job.
{¶ 74} Under such facts, the application of the R.C. 2941.145(A) firearm specification, even upon a conviction for the underlying felonious-assault offense, leads to an unreasonable and absurd result. Thus, the R.C. 2941.145(A) 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
{¶ 75} The dissenting opinion’s summary of the facts overlooks the evidence regarding mistake. First, the dissent misleadingly cites the video evidence as “overwhelming support for the jury’s verdict.” Dissenting opinion at ¶ 83. But, as the appellate court noted, the jury also heard testimony from two defense experts that White did not have the same viewpoint as the camera in his cruiser that shot the video.
From where he stood, White could not fully see McCloskey’s right arm, nor his hands at all. McCloskey had turned forward, but then turned back to his right again. With his pistol aimed at McCloskey, White yelled “get your hands up.” White described what he saw next: “He turned and looked at me, and with the right arm, made a reaching movement.” Believing that McCloskey “was pulling a weapon,” and fearing that his life and Sargent’s life were in danger, White fired once. McCloskey fell to the ground and the motorcycle toppled on him.
Id. at ¶ 8.
{¶ 76} Regardless of the reasonableness of White’s belief that McCloskey “was pulling a weapon” and that his life and his partner’s life were in danger, White acted as a police officer throughout the incident. The evidence demonstrates that White did not abandon his job to engage in criminal activity. The only question, as the majority notes, is “the reasonableness of the force he used.” Majority opinion at ¶ 38.
{¶ 77} Under these facts, the R.C. 2941.145(A) firearm specification can have no deterrent effect as intended. In fact, application of the specification would have the absurd result of deterring officers from carrying and using their firearms as mandated by their training and policies. The firearm specification would punish officers for doing what they are required to do^ — carry a firearm and use it if necessary. Because the purpose of the statute is wholly at odds with its application to police officers in these circumstances, it cannot be concluded that the statute is so intended.
{¶ 78} Additionally, as the appellate court recognized, the criminal prosecution of law-enforcement officers for on-duty conduct has been infrequent.
{¶ 79} Lastly, the dissent reasons that “any human being, whether a police officer, a judge, or a priest, can commit an offense and be an ‘offender,’ ” and therefore, the “law must apply to all or it applies to none.” Dissenting opinion at ¶ 98. But under the current state of the law, a police officer carries the unique burden of being subject to mminal liability for a mistake in carrying out his or her employment duties that gives rise to an inquiry into the officer’s use of force. That burden is not shared by a judge or a priest. For example, even if a judge mistakes or misapplies the law in the exercise of his or her duties as a member of the judiciary, the judge does not risk criminal liability for that mistake. There is no criminal inquiry into whether a reasonable judge would have acted the same way. And there is certainly no equivalent to a firearm-specification enhancement that could be made applicable for some required aspect of the judge’s duties. That is not to make light of the serious consequences suffered by McCloskey as a result of White’s actions here. Rather, it is simply to note that our jurisprudence, as well as the General Assembly as it enacts legislation, recognizes distinctions when necessary. Here, a distinction must be drawn regarding R.C. 2941.145(A) to avoid the absurdity resulting from the application of the firearm specification on these facts.
Dissenting Opinion
dissenting.
{¶ 81} I respectfully dissent, as I would reverse the judgment of the court of appeals and would reinstate the jury verdict in this case finding the defendant, Thomas Caine White, guilty of felonious assault with a firearm specification. I believe that the trial court did not abuse its discretion either in issuing its jury instructions or by excluding White’s testimony on the crimes that he believed Michael McCloskey Jr. had committed. I would further hold that the firearm specification applies to White in this case.
Additional Factual Background
{¶ 82} The tragedy in this case is that during a traffic stop a citizen was paralyzed after being shot in the back by an on-duty police officer. I wholeheartedly agree that law-enforcement officers perform a vitally important role in our society that requires them to make split-second, life-or-death decisions while under tremendous pressure. But they themselves may be subject to prosecution when their actions exceed the scope of their duties by violating criminal statutes.
{¶ 83} In its recitation of facts, the majority opinion does not mention that a video of the event recorded by the dashboard camera in White’s cruiser was entered into evidence and played for the jury at several points during trial. The video provides overwhelming support for the jury’s verdict.
{¶ 84} The video shows that before initiating the traffic stop, White followed the motorcycles of McCloskey and Aaron Snyder for approximately three minutes and 45 seconds. During this time, McCloskey’s and Snyder’s riding appears unremarkаble. After stopping at an intersection for about 10 to 12 seconds, the two men accelerated quickly, and the video shows that White immediately activated his patrol car’s lights and siren. White then pursued McCloskey for about 14 seconds, and McCloskey stopped his motorcycle. In a few moments, White exited his patrol car and simultaneously yelled and fired at McCloskey. The shooting took place about three seconds after White opened his police car door.
The Jury Instructions Given
{¶ 85} I disagree with the majority opinion that the trial court committed reversible error in failing to properly instruct the jury, and I would hold that the jury instructions were a complete statement of law.
{¶ 86} The majority opinion faults the trial court for failing to explain when an officer in White’s position is justified in using deadly force, but the trial court was clear at the beginning of the instructions on this point that it was the task of the jury to determine the reasonableness of the force used, instructing each juror to “put yourself in the position of the defendant, with his characteristics and his
{¶ 87} The majority opinion would require the trial court to explain that an officer in White’s position would be justified in using deadly force “when there is probable cause to believе that the suspect poses a threat of serious physical harm to the officer or to others” pursuant to Tennessee v. Garner,
{¶ 88} I would not hold that the trial court’s failure to quote Gamer’s statement on deadly force in its jury instructions constitutes reversible error. While Garner dealt specifically with the use of deadly force and Graham dealt with excessive, nondeadly force, the opinion in Graham explicitly clarified the analysis set forth in Gamer:
Today we make explicit what was implicit in Garner’s analysis, and hold that all claims that law enforcement officers have used excessive force— deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach.
(Emphasis sic.) Graham at 395. Graham’s Fourth Amendment analysis accordingly controls, and I would hold that the trial court’s jury instructions were a sufficient statement of law. A trial court is required to “fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen,
{¶ 89} I agree with the majority opinion that the trial court’s failure to provide a mistaken-belief instruction does not constitute plain error in this case. In short, there was no abuse of discretion by the trial court in its jury instructions,
Exclusion of Testimony
{¶ 90} I also would accept the state’s argument that the trial court did not abuse its discretion in excluding White’s testimony regarding the specific violations and the degree of any offense that White believed McCloskey may have committed. The majority opinion concludes that the offenses that WTiite believed McCloskey had committed were more probative than prejudicial and related to whether a reasonable officer would have believed that McCloskey could pose a threat, and it further concludes that without White’s 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.” Majority opinion at ¶ 65.
{¶ 91} I would hоld that the trial court did not abuse its discretion in prohibiting White from telling the jury what crime or crimes he would have charged McCloskey with. The majority opinion reasons that the exclusion of this testimony prevented the jury from considering whether McCloskey was believed to have committed any crimes, from fully considering “factors such as the severity of the crime Mr. McCloskey was believed to have committed” pursuant to the jury instructions, and from determining whether the seriousness of McCloskey’s potential offenses would have alerted a peace officer to a potential threat.
{¶ 92} But the jury was presented with ample evidence to consider these issues. It repeatedly viewed the video recording of the entire sequence of events, which provides comprehensive details of McCloskey’s actions leading up to the shooting. White also testified extensively about his own perceptions of the events leading up to the shooting. During his trial testimony, White reviewed the video in front of the jury, offering a running commentary of traffic violations that he believed the motorcyclists may have committed. This evidence- — -the video recording and White’s first-person testimony about the events in question— provided the jury with a full opportunity to consider the nature and seriousness of any potential offenses McCloskey may have committed and the effеct of those potential offenses on White’s perception of a potential threat.
The Firearm, Specification
{¶ 93} Because I would hold that the trial court did not abuse its discretion in issuing the jury instructions and excluding White’s testimony regarding the offenses with which he would have charged McCloskey, I would uphold the jury’s verdict finding White guilty of felonious assault. The remaining issue in this case
{¶ 94} The majority opinion sidesteps the “as applied” constitutional challenge to the R.C. 2941.145 firearm specification. White contends that there is no rational basis for imposing a firearm specification on a police officer who possesses and uses his firearm while on duty because the legislative intent is to punish “criminals” for possessing and using firearms. The majority opinion suggests that this issue can be decided as a matter of statutory interpretation and asserts that “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.” Majority opinion at ¶ 34. It reasons that White was permitted and required to carry the firearm pursuant to his official duties and that he did not abandon his employment or act outside the scope of his official duties in shooting McCloskey. It contrasts White’s actions with those of a hypothetical officer who has “voluntarily chosen to engage in criminal activity” by robbing a drug dealer at gunpoint. Id. at ¶ 36.
{¶ 95} The statute, however, does not contain an exception for police officers or anyone else required to carry a firearm, and the majority’s analysis ignores the jury’s determination in this case that White acted criminally in shooting McCloskey.
{¶ 96} The majority opinion at least tacitly approves 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.”
{¶ 97} R.C. 2941.145(A) imposes a mandatory three-year prison term for offenses committed when “the offender had a firearm on or about the offender’s person or under the offender’s control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense.” (Emphasis added.) 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.
{¶ 98} Police officers are human. 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 acknowledges that an officer who participates in criminal activity is not within the scope of the officer’s duty because officers have no license to commit crimes. But its analysis
{¶ 99} 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. The majority should uphold the jury’s verdict and abstain from reweighing the facts of the case.
{¶ 100} The majority оpinion states that subjecting officers to criminal liability under R.C. 2941.145 belies the legislative purpose in enacting it because the statute cannot deter an officer from possessing a firearm that he is required to carry. I disagree. First, the statute does not subject officers like White to criminal liability for possessing a firearm. Rather, it subjects them to criminal liability for using a firearm — using the firearm while committing a criminal offense. Second, the purpose of the statute is to reduce gun violence, regardless of who commits the crime.
{¶ 101} Recent high-profile incidents have occurred in which police officers have been accused of using unwarranted deadly force on citizens. 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.
{¶ 102} I conclude that subjecting White to criminal liability under R.C. 2941.145 is rationally related to its purpose — to deter the use of firearms in committing crimes.
Conclusion
{¶ 103} This is admittedly a troubling case. Nevertheless, we are called upon to look beyond any sympathy we may have for the victim, who has suffered
Notes
. It should be noted that if we were to reverse the judgment of the Sixth District, this cause would be remanded to the court of appeals for it to address White’s fifth assignment of error, which challenged his ten-year sentence and which was found to be moot. The appellate court also found another assignment of error moot and did not address it.
. Imposing liability on White pursuant to the firearm specification would comport with the analysis in an analogous case from Michigan, People v. Khoury,
Concurrence in Part
concurring in part and dissenting in part.
{¶ 80} I dissent from the majority’s holdings regarding the jury instructions on the use of force and the trial court’s exclusion of the defendant’s testimony about the offenses that he thought the victim had committed, and I join Justice Lanzinger’s dissent on those two issues. I concur in the majority’s judgment regarding the inapplicability of the firearm specification to the defendant and in the majority’s judgments addressing the propositions of law involving pretrial dismissal based on civil immunity and a mistaken-belief jury instruction. Thus, I would reverse the judgment of the court of appeals regarding White’s felonious-assault conviction, would affirm its judgment on the R.C. 2941.145(A) conviction, and would remand the case to the court of appeals for a consideration of the remaining assignments of error — regarding the manifest weight of the evidence and whether the trial court erred in imposing a seven-year sentence on the felonious-assault conviction — that the appellate court deemed moot.