Slain Officer's Motive to Determine Compensation

Karen Scholz
Plain Dealer Reporter
August 14, 2001

Three years ago, off-duty Cleveland police officer David M. Smith exchanged hostile looks with a stranger in a downtown strip club.

When Smith left, the stranger was outside waiting for him, waving a gun. Smith drew his own city-issued weapon, but before he could say word, the stranger shot Smith dead.

Lawyers are now grappling with questions that are crucial to Smiths young children: At the moment of the shooting, was Smith a cop, trying to a stop felony and protect the public? Or was he looking out for his own safety like any other citizen would?

The answers will determine whether Smiths two children, ages 10 and 12, can collect money from the Bureau of Workers Compensation. Smith, 29, was a Cleveland police officer for five years and was raising his children alone.

In a hearing yesterday at the 8th Ohio District Court of Appeals, city and state lawyers argued that Smiths decision to draw his weapon grew out of a personal dispute with the killer, not a duty to serve and protect.

Jose Gonzalez, a lawyer for the city, noted that Smith was not in uniform and that he had been drinking. Smiths blood-alcohol level was 0.10 percent, the level at which a driver is considered drunk in Ohio.

Smith was acting within the scope of his job, said Smith family lawyer Craig Bashein. Local and state regulations require police officers to intervene in felonies when they're off the clock and allow them to carry their guns.

If Smith had done nothing and survived, he could have been disciplined for failing to take action, Bashein said.

Smith was compelled to respond. He was required to respond, Bashein said.

Bashein said a decision against Smith would send a dangerous message to all officers that they might not be protected if they intervene in a crime while off duty.

The three-judge panel who heard the case yesterday most likely will issue its opinion next year.

The April 1998 shooting followed the wordless dispute featuring hostile glances and perceived slights between Smith and his cousin, Edward Wright, and Maurice L. Mackey, of Solon, over a dancer inside The Office, a Euclid Ave. club near E. 30th St.

Mackey left but then ambushed the two outside.

Officer Smith could've run like his cousin did. He could've begged for his life. Or he could've pulled his weapon pursuant to the rules and regulations of the city of Cleveland, Bashein said in court yesterday.

Mackey was convicted of the murder of Smith and the attempted murder of Wright, who was shot in the back. Mackey was sentenced to 24 years to life in prison. Smiths family filed a workers compensation claim in December 1999.

When it was denied, Bashein appealed to Cuyahoga County Common Pleas Court. Judge Timothy McCormick dismissed the case before trial, a decision Bashein appealed.

W. Craig Bashein
Bashein & Bashein
August 20, 2001