Careful with the props for your Bill of Rights quizzes

|The Volokh Conspiracy |

From State v. Lampela, decided Friday by the Ohio Court of Appeals:

Put-In-Bay is a Lake Erie island located in Ottawa County. It has only 400 permanent residents, but it is a major tourist attraction in the summer, drawing approximately one to one-and-a-half million visitors. During the wintertime, Put-In-Bay maintains only three full-time law enforcement officers. During the summer months, however, the police department increases its staff to about 45-50 seasonal officers.

Robert D. Lampela was employed with the Put-In-Bay police department from 1999 through 2015, and served as its chief from 2002 until his termination. On February 27, 2015, he was charged with … aggravated menacing … in connection with an incident in which he removed his firearm from its holster to get the attention of two of his subordinates while quizzing them on the amendments to the U.S. Constitution…. [T]he trial court found Lampela not guilty, but it convicted him of disorderly conduct, which the court characterized as a lesser-included offense….

The incident at issue occurred on March 10, 2010. Lampela attended a "state of the Island" address with his two subordinates, Sergeant Jeffrey Herold, who was employed by the department from 2004 until 2012, and Corporal Matthew Plesz, who was employed there from 2008 until 2011. Lampela, Herold, and Plesz retreated to the department's bunkhouse after the address. They sat on the couches there and discussed the address. Herold and Plesz had apparently been worried for some time about whether Lampela would arbitrarily fire them. Because of this fear, they made it a habit to secretly record their interactions with Lampela. Herold recorded their conversation that evening.

Due to the department's need for numerous seasonal police officers, it tended to hire brand-new officers straight out of the police academy. Lampela was outspoken in his belief that it was his obligation to train these new officers. To that end, he often quizzed them on the Bill of Rights, sometimes at odd times. That is what happened on the evening in question.

That night, after talking for about two hours, Lampela asked Herold, "What is the Second Amendment?" Herold was silent. Lampela removed his gun from its holster, dropped the magazine, racked the round out of the chamber, pointed the weapon up, and shouted, "What's the Second Amendment to the Constitution, Herold?" Herold then responded, "The right to bear arms." This is the conduct which led the state to charge Lampela with aggravated menacing, however, the charge was not filed until February of 2015, following a broader investigation of the police department.

This broader investigation of the Put-In-Bay police department was conducted by the Ottawa County sheriff's department and began in 2014, after the sheriff's office received a variety of complaints ranging from accusations that officers were targeting particular citizens to allegations that officers gained unlawful entry into a building to tamper with security cameras….

Lampela's explanation was that he used the unholstered gun to serve as a visual cue to impress upon Herold that the Second Amendment affords the right to bear arms. He insisted that he rendered the gun safe by removing the magazine and racking the round out of the chamber, and he maintained that he never pointed the gun at anyone. Ultimately, the trial court found Lampela not guilty of aggravated menacing, but guilty of disorderly conduct, purportedly a lesser-included offense….

An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, … be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense…. [Text moved: [T]he focus of [this test] is whether the accused is put on notice that an indictment for an offense could also result in prosecution of the lesser-included offense.]

The aggravated menacing statute provides that "No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person …." The disorderly conduct statute at issue here provides that "No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: … [c]reating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender."

[D]isorderly conduct under (A)(5) of the statute does contain an element that aggravated menacing does not. "[T]he absence of a lawful and reasonable purpose" is, indeed, an element of the offense. While there are defenses to aggravated menacing which address an alleged lawful and reasonable purpose for the offender's conduct [such as self-defense[, it is not an element of the offense …. Because disorderly conduct under (A)(5) of the statute contains an additional element not found in the aggravated menacing statute, it cannot be deemed a lesser-included offense….

Chief Lampela was also charged with "dereliction of duty and falsification in connection with his alleged failure to investigate a report of sexual assault by one of its seasonal officers," as well as falsification as to the constitutional quiz incident, but he was acquitted as to the first and charges were dropped against him as to the second; I mention this because it might explain why the prosecutor brought the menacing charges as well. Lampela was fired in August 2015 but was appealing that decision (at least as of September 2016).