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Wednesday, February 5, 2014

City of Westlake, Civil Service Commission, et al. v. Richard O. Pietrick, Case no. 2013-0052
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Thomas C. White, Case no. 2013-0109
Sixth District Court of Appeals (Lucas County)

State of Ohio v. Kevin D. Tolliver, Case no. 2013-0351
Second District Court of Appeals (Montgomery County)

State of Ohio v. Amanda Straley, Case no. 2013-0544
Second District Court of Appeals (Clark County)


Does a Common Pleas Court Have the Discretion to Modify Disciplinary Actions Taken Against a Civil Service Employee?

City of Westlake, Civil Service Commission, et al. v. Richard O. Pietrick, Case no. 2013-0052
Eighth District Court of Appeals (Cuyahoga County)

ISSUES:

BACKGROUND:
Richard O. Pietrick became fire chief of the Westlake Fire Department in 1994, and during his time in office, Pietrick, on numerous occasions, had subordinate firefighters perform maintenance on vehicles owned by either himself or one of his family members. In June 2007, when Pietrick’s behavior became known to Westlake Mayor Dennis Clough, the mayor hired outside counsel to investigate the matter, and the investigating attorney found that Pietrick engaged in behavior that necessitated disciplinary actions to punish and prevent further misconduct.

In November 2007, Pietrick was informed that he had been demoted from fire chief to first-class firefighter, and suspended for 30 days without pay because of this misuse of city resources.

Pietrick, although entitled to request an informal hearing before Mayor Clough, directly appealed to the Westlake Civil Service Commission. Prior to the commission taking any action, a pre-deprivation hearing was held, and the appointed municipal attorney found the discipline to be reasonable. After considering the testimony and evidence presented at its hearing, the commission found that the mayor’s disciplinary actions were within the bounds of the Ohio law that provides for the discipline of public employees who have committed acts of “misfeasance, malfeasance, nonfeasance, neglect of duty, [or] failure of good behavior,” and Pietrick’s appeal was denied.

Pietrick then appealed to the Cuyahoga County Court of Common Pleas, which in March 2012 upheld the 30-day suspension and demotion from the position of fire chief, but modified the demotion to captain rather than first-class firefighter.

The City of Westlake appealed the decision in the Eighth District Court of Appeals, arguing that the common pleas court had abused its discretion in modifying Pietrick’s discipline. However, the Eighth District found that there was no abuse of discretion and affirmed the lower court’s decision.

The Eighth District determined that the common pleas court had not, in fact, adopted the city’s findings that Pietrick had committed acts of misfeasance, malfeasance, nonfeasance, neglect of duty, or failure of good behavior but instead found that he had merely engaged in “grossly poor judgment.”

The city appealed to the Ohio Supreme Court, and after initially declining jurisdiction, the court agreed to review the appeal after the city requested reconsideration.

Attorneys for the city argue that the common pleas court did not have the power to modify Pietrick’s discipline because, under the proper standard of review, the court could only reverse, modify, or vacate the administrative order if the court found that there were legally significant reasons to discredit evidence that the commission relied on. Citing the decision in Maurer v. Franklin Cty. Treasurer (2008) from the Tenth District Court of Appeals, the city’s attorneys assert that if the evidence supports the commission’s findings, the trial court must affirm the commission’s decision and is not authorized to modify disciplinary actions.

The city’s attorneys contend that just because the common pleas court used the term “grossly poor judgment,” and not “misfeasance, malfeasance, nonfeasance, neglect of duty, and failure of good behavior,” to explain Pietrick’s behavior does not mean that the court’s findings do not mirror those of the commission’s. Therefore, the court should not have been able to change Pietrick’s demotion, they argue.

The city’s attorneys add that in affirming the common pleas court’s decision, the Eighth District set a dangerous precedent by establishing criminal or unethical conduct as a prerequisite to finding a civil servant’s actions to be considered misfeasance, malfeasance, nonfeasance, neglect of duty, or failure of good behavior.

Pietrick’s attorneys counter that establishing this prerequisite was never the intention of the court of appeals. They contend the court merely used the lack of criminal or unethical behavior to find that a lesser disciplinary action was reasonable in Pietrick’s situation.

Pietrick’s attorneys also argue that the common pleas court did not abuse its discretion when it chose to modify Pietrick’s demotion because the court correctly followed the de novo standard of review (where the court independently evaluates the facts and law, and no deference is paid to earlier decisions) meant to be applied in these situations.

His attorneys assert that applicable Ohio law provides added employment safeguards for police officers and firefighters, which Ohio courts have upheld through the use of differentiated standards of review. Citing a 2012 decision (Baron v. Civil Service Board of Dayton) from the Second District Court of Appeals, Pietrick’s attorneys argue that even if Pietrick elected the review process under the more general statutory language that allows for deferential review, specific provisions prevail when there is a conflict between general and specific provisions of law, so de novo review was appropriate in this case.

An amicus curiae (friend of the court) brief supporting the City of Westlake’s position has been submitted by the Ohio Municipal League.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Westlake Civil Service Commission and City of Westlake: John Wheeler, 440.617.4203

Representing Richard O. Pietrick: Joseph Diemert, 440.442.6800

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Was a Shooting by an On-Duty Police Officer Reasonable, and Are On-Duty Police Officers Exempt from a Statute That Enhances the Penalty for an Offense for Using a Firearm?

State of Ohio v. Thomas C. White, Case no. 2013-0109
Sixth District Court of Appeals (Lucas County)

ISSUES:

BACKGROUND:
After following two motorcyclists through Ottawa Hills in the early morning hours of May 23, 2009, police officer Thomas White believed the riders were impaired and turned on his patrol car lights and sirens to stop them.

As a backup officer approached the scene in a police cruiser, one of the riders drove over a curb into grass and back onto the street and then stopped. The backup officer took him into custody.

The other rider, Michael McCloskey, came to a stop, and White pulled up behind him. While White was still in the cruiser with his lights and sirens on, McCloskey looked over his right shoulder toward White’s vehicle and then looked toward the backup officer arresting the other rider. White got out of the cruiser and yelled something, and McCloskey turned again to glance over his right shoulder. White testified at trial that he ordered McCloskey to put his hands up and that McCloskey made “a reaching movement” the led the officer to believe McCloskey was pulling a weapon. At that point, White fired a shot, hitting McCloskey in the back. McCloskey was permanently paralyzed and suffered severe organ damage.

In July 2009, White was charged with felonious assault with a firearm specification. The jury found him guilty, and the court sentenced him to seven years in prison for the assault plus an additional three years for the firearm specification.

White appealed to the Sixth District Court of Appeals, which reversed his conviction. The state asked the Ohio Supreme Court to review the decision, and the court agreed to hear the case.

Attorneys from the Lucas County Prosecutor’s Office explain that the firearm specification in R.C. 2941.145, unlike some other statutes, contains no exception for police officers who use their weapons while on duty. However, they contend, the Sixth District in this case wrongly determined that the statute was unconstitutional when applied to on-duty police officers because they must carry a firearm as part of their job. The prosecutors maintain that the Ohio Supreme Court ruled in State v. Steele (2013) that it will not add an exception to a statute when there is none present.

“When a jury finds an officer guilty of committing a crime, he is found to have ‘voluntarily’ committed the crime,” they write in their brief to the court. “An officer may be required to carry a gun, but he is not required to discharge it at every opportunity. When discharge of the firearm results in a criminal conviction, the officer’s use of the gun can be considered neither involuntary nor an act in the scope of law enforcement duties.”

White’s attorneys argue, however, that two Ohio Supreme Court cases, State v. Murphy (1990) and State v. Powell (1991), held that the General Assembly intended the firearm specification at issue in this case to “(1) inform the criminal world that the use of a gun while committing a crime will result in three extra years in prison; (2) punish the use and possession of guns by people who commit crimes because a criminal with a gun is both more dangerous and harder to apprehend; and (3) curb the drastic rise in violent crimes involving the use of firearms.”

They assert that “… because seizures of suspects are governed by the Fourth Amendment [to the U.S. Constitution], its objective reasonableness standard controls the prosecution of such shootings. Fundamentally, state actors are not exposed to criminal or civil liability for force used during their seizure of a person if they did not violate the person’s Fourth Amendment right to be free from unreasonable seizures.”

The attorneys maintain that the Fourth Amendment only allows police to be found to have unreasonably seized a person if a shooting like this one involves “an unreasonable split-second decision.” They contend that White’s conviction on the firearm specification violates both this constitutional standard of objective reasonableness and the Ohio legislature’s intent.

The Lucas County prosecuting attorneys also claim that the Sixth District proposed in its opinion that laws providing qualified immunity to police officers in civil cases could be extended to protect officers from criminal prosecution for using deadly force. The prosecutors argue that Ohio has no immunity statute that applies to a felonious assault, and no authority exists to expand civil immunity to prevent certain criminal prosecutions in the state. Doing so violates Ohio’s criminal rules and Ohio Supreme Court precedent, they assert. They ask the court for a ruling that civil immunity will not bar the criminal prosecution of an officer for actions taken while performing his or her duties.

White’s attorneys counter that the Sixth District’s suggestion to the General Assembly was only that, not binding authority. They add that the Supreme Court, at most, should leave the issue to the legislature.

The prosecutors also claim that the Sixth District wrongly decided that the instructions given to the jury at trial created reversible error. They argue that the jury instructions properly explained what to consider when determining whether White’s actions were reasonable. They also assert that the failure to quote a U.S. Supreme Court case in the instructions when defining deadly force hurt only the state’s case, not White’s, so that absence should not have been used as justification for a reversal. Reversal is also inappropriate when a jury instruction was based on one offered by White’s defense counsel, they contend. Overall, they conclude that the jury instructions properly guided the jury on the relevant legal principles to consider in weighing this case.

White’s attorneys respond that the jury needed specific instructions to take a reasonable officer’s perspective at the moment White fired his gun, to give deference to White’s judgment in that moment under the circumstances of the stop, and to base their decision on the information White had at the time he shot McCloskey. Without that level of specificity, White’s attorneys claim that the jury instructions did not meet the required constitutional principles. They add that the jury instructions came mostly from the state, and only one paragraph was proposed by the defense.

In the Sixth District’s decision, the court held that the trial court should have explicitly given an instruction to the jury to consider whether White was mistaken in his judgment about firing the shot. The prosecuting attorneys counter that that the statutory definition of “knowingly” encompasses the defense of “mistake of fact,” so a separate instruction was unnecessary. Regardless, any lack of an instruction on this point did not change the outcome of the case, they maintain.

White’s attorneys assert, though, that the jury should have been explicitly told that White could be found to have been both mistaken and reasonable when he thought McCloskey was pulling a gun. They argue that the “mistaken belief” defense is required to be specifically presented to the jury so they could determine whether White’s conduct was objectively reasonable.

The prosecuting attorneys also maintain that the jury needed no further information about the crime McCloskey was believed to have committed, regardless of whether it was a felony or misdemeanor and which Revised Code section may have been violated. The jury had enough information to evaluate McCloskey’s conduct with the video evidence of the stop and White’s testimony, they assert.

White’s attorneys conclude that the errors at trial “prevented the jury from conducting an accurate, constitutionally-guided, objective-reasonableness determination” and had a prejudicial impact on White.

An amicus curiae (friend of the court) brief supporting the state’s position has been submitted by the Ohio Prosecuting Attorneys Association. The National Fraternal Order of Police and Fraternal Order of Police of Ohio have filed a joint amicus brief supporting Thomas White.

The Supreme Court has granted the National Fraternal Order of Police permission to participate in oral arguments within the 15 minutes allotted to Thomas White.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the Lucas County Prosecutor’s Office: Evy Jarrett, 419.213.4700

Representing Thomas C. White: Peter Galyardt, 614.728.0171

Representing the National Fraternal Order of Police: Larry James, 614.229.4567

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Is the Use of Force in a Robbery a Strict Liability Offense?

State of Ohio v. Kevin D. Tolliver, Case no. 2013-0351
Second District Court of Appeals (Montgomery County)

ISSUE: Does the use-of-force element in Ohio’s robbery statute require a particular mental state to find the defendant guilty of the offense?

BACKGROUND:
Kevin Tolliver shoplifted from a Dollar General Store in September 2010. During his attempt to leave the store with the stolen merchandise, he was confronted by an employee. When the on-duty assistant manager, Jasmine Jordan, came over to aid the employee, Tolliver pushed Jordan out of the way. The confrontation continued for a short while longer, then Tolliver left the store with the stolen merchandise.

Tolliver was charged with robbery because he was accused of committing a theft offense during which force or threat of force was used. The indictment specified that in attempting or committing a theft offense Tolliver “did recklessly use or threaten the immediate use of force against another.”

However, in advising the jury at trial, the court, following the language of the robbery statute, left out the term “recklessly” in its instructions, requiring only that the jury find that Tolliver used (or threatened the immediate use of) force while committing, or attempting to commit, a theft offense. The jury found Tolliver guilty as charged, and he was sentenced to four years in prison.

Tolliver appealed to the Second District Court of Appeals, arguing that his conviction should be overturned because the trial court erred when it did not instruct the jury that recklessness was the mental state required to find him guilty on the charge. The Second District agreed with Tolliver and reversed his conviction.

The state then filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

Attorneys for the state argue that the language of the robbery statute and the use-of-force section of the law indicate no required culpable mental state, a strict liability offense. Citing the Ohio Supreme Court’s analysis in State v. Horner (2010), they reason that because the theft element of the robbery statute describes two mental states necessary to establish guilt but the use-of-force element clearly lacks any explicit indication of a necessary mental state, the General Assembly intended to impose strict criminal liability for this offense, meaning no guilty mental state was required.

The state’s attorneys also assert that the use-of-force section of the statute should not be read any differently than the other sections of that statute. Because the remaining two subsections of the robbery statute, as well as every subsection of the aggravated robbery statute, have been found to be strict liability offenses, they argue there is no reason for treating the use-of-force section any differently.

Tolliver’s attorneys counter that each subsection of the robbery statute and aggravated robbery statute is a unique offense, which prohibits different conduct and imposes different punishments. They argue that the court should not be required to treat use-of-force robbery the same as the more severe offenses.

Attorneys for Tolliver also maintain that the existence of a mental state in other sections or within the offense as a whole is simply one factor to be used in determining whether a statute plainly indicates a purpose to impose strict liability. Citing the holding in Horner, they assert that the distinction in penalties among the various subsections of the robbery statute shows the General Assembly did not mean to impose strict liability.

They contend that the court of appeals was correct in determining that the risk of physical harm to others was a qualitative difference that could be used to indicate the General Assembly’s intent.

An amicus curiae (friend of the court) brief supporting Tolliver’s position has been submitted by the Office of the Ohio Public Defender.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the Montgomery County Prosecutor’s Office: Andrew French, 937.225.5027

Representing Kevin D. Tolliver: Charles Blue, 937.298.1054

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To Prove Tampering With Evidence, Must Discarded Evidence Be Directly Related to the Investigation?

State of Ohio v. Amanda Straley, Case no. 2013-0544
Second District Court of Appeals (Clark County)

ISSUE: Does a tampering-with-evidence conviction require proof that the defendant discarded the record, document, or thing to impair its availability as evidence in an investigation?

BACKGROUND:
In April 2011, two plain-clothes narcotics detectives in an unmarked vehicle pulled over Amanda Straley after they saw her cross left of center in her car. One of the detectives asked Straley for her license, but she did not have it. After ordering her out of the car, the detective suspected she was intoxicated. They received permission to search her vehicle, but found nothing illegal.

The officers were not on traffic patrol, so they decided not to arrest her and instead tried to find her a ride home. During that time, Straley insisted she needed to use the restroom, but none were nearby. She moved away from the detectives to urinate by a building. Afterward, one officer checked the area and found a plastic baggie of crack cocaine. Straley admitted to the detectives that it belonged to her, and she was arrested.

She pled no contest to trafficking in drugs and possession of cocaine, but went to trial on a charge of tampering with evidence. In May 2012, a jury found her guilty of the tampering charge.

Straley appealed to the Second District Court of Appeals, which reversed the tampering conviction, finding that to be convicted of evidence tampering “a defendant must ‘impair’ evidence in an investigation that is ongoing or likely to occur by tampering in some way with evidence related to the investigation.” The Second District certified that its decision is in conflict with a Ninth District Court of Appeals’ opinion and notified the Ohio Supreme Court, which agreed to hear the issue to resolve the conflict between the appellate districts.

The tampering with evidence statute (R.C. 2921.12) states:

(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation; ….

Attorneys from the Clark County Prosecutor’s Office argue that the circumstances show that Straley stepped away to urinate to get rid of the bag of cocaine so the officers would not find it. They contend that the Second District appeals court wrongly determined that the drugs did not relate to the “investigation,” because the detectives were initially investigating matters unrelated to the drugs.

“The Second District would characterize this as an investigation of her public urination only; when in fact, like most investigations, it is a process of inquiry into what happened and what, if any, laws have been broken,” they write in their brief to the court. “Investigations by their very nature involve law enforcement gathering facts and information and then making a determination as to whom to charge, what to charge, and what further steps are necessary.”

The prosecuting attorneys assert that the investigation expanded from suspicion of driving under the influence to public indecency to drug trafficking and possession.

They also claim that the Second District mistakenly applied the legal rule of lenity, which states that criminal offenses or penalties must be strictly construed against the state and liberally interpreted in favor of the accused. But, they contend, based on a 2002 Supreme Court case (State ex rel. Pennington v. Gundler), that rule only applies to ambiguous statutes, which is not the case with the tampering statute.

“If law enforcement is conducting an investigation of a suspect for possible criminal conduct, that investigation necessarily encompasses whatever criminal conduct that law enforcement should come across,” they conclude. “Here, the baggie of cocaine concealed by Straley certainly relates to the detectives[’] investigation into possible criminal conduct, even though that conduct first appeared to be limited to traffic infractions and public urination[.]”

Attorneys for Straley respond that the state’s argument that investigations evolve and expand is overly broad. They also argue that a statute does not have to be ambiguous for the lenity rule to apply.

Citing the Supreme Court’s decision in State v. Malone (2009), they assert that the court relied on the lenity rule to limit the scope of Ohio’s witness intimidation statute. Drawing a parallel with this case, Straley’s attorneys maintain that a person cannot tamper with evidence in an investigation before the investigation exists.

“In Malone, this [c]ourt made it clear that a threat to hurt someone before a criminal proceeding is punishable by a criminal statute, aggravated menacing, but it is not punishable by the witness intimidation statute,” Straley’s attorneys write in their brief to the court. “Similarly, Ms. Straley’s possession of crack cocaine is punishable and was punished by criminal statute. It is just not punishable by the evidence-tampering statute. This [c]ourt, as it was in Malone, is limited by the language chosen by the General Assembly to define the crime and cannot apply that language to conduct outside the statute.”

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the Clark County Prosecutor’s Office: Christopher Kinsler, 937.521.1770

Representing Amanda Straley: Valerie Kunze, 614.466.5394

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.