''Person of common intelligence'' convicted: affirmative defense law fails again

Jury decides a homeless man's fear can't excuse a loaded gun at Hopkins

10/11/03
Cleveland Plain Dealer

A Cuyahoga County jury deliberated less than two hours yesterday before rejecting a novel defense offered by a homeless Cleveland man arrested carrying a loaded gun at Cleveland Hopkins International Airport.

Robert Igoe, who has a history of mental instability, had a new, loaded .40-caliber semiautomatic handgun and 70 more live bullets in his backpack when he surrendered to police Jan. 29.

During his two-day trial that preceded his conviction on a charge of carrying a concealed weapon, he and defense lawyer Mark Rudy conceded Igoe had the gun. But they mined a section of Ohio's concealed-weapons statute that allows an "affirmative defense."

The statute says a defendant can argue that fear of being attacked while doing legal business justifies a "prudent person" who legally obtains a gun to carry it in dangerous circumstances. The defense may be used, for instance, by someone who carries a gun while toting a big bank deposit through a crime-ridden neighborhood.

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Igoe and Rudy contended Igoe should be able to use the defense because life on the streets is fraught with dangers; Igoe repeatedly had endured beatings and death threats. He passed an FBI check before using an inheritance windfall to buy the gun. And Igoe, a former dean's-list student at John Carroll University, Oberlin College and Cleveland State University who never earned a degree, was engaged in the "legal business" of college studies, they said.

When he was arrested, they said, Igoe was waiting for a Lorain County Transit bus to pick up a transcript he needed for financial aid. He was enrolling to take law-enforcement classes.

Igoe, 35, testified he researched laws before he took a gun-safety class and thought he was within his rights to carry it, loaded.

Assistant County Prosecutor Patrick Kelly scoffed at the reasoning.

"If that's the rationale we're going to use, then we all ought to go out and get guns," he said. "But that's not the rationale the law is talking about."

Juror Sean Sweeney of Cleveland said a loaded gun in the airport is inexcusable.

"Sleeping on Public Square, OK, I can give you that - you might have reason to fear," Sweeney said. "But in an airport, post-9/11? There's no justification."

Igoe could face up to 18 months in prison. But he had no prior felony convictions, so state law calls for probation unless Glickman finds a need for incarceration when he sentences Igoe Nov. 12. Glickman ordered him to undergo a psychological evaluation.

Commentary:
In the recent Supreme Court ruling upholding Ohio's ban on carrying a concealed firearm for self-defense, the majority opinion stated "we conclude that [current statutes concerning concealed carry] are capable of being understood by a person of common intelligence and provide sufficient standards to prevent arbitrary and discriminatory enforcement." This flawed, confusing law has been failing "persons of common intelligence" in Ohio for years, and continues to do so.

Yet Ohio's Republican Senate leadership continues to play politics with a reform bill, simply in effort to protect "party solidarity." Nothing about this Court ruling, or the Republican party's political obstruction, would have met well with Founding Father James Madison, who said:

"It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are
promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-
morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?"

Federalist Paper 62

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