Man Accused of Interfering With Firefighters Prevails on Appeal

The conviction of an Ohio man who was accused threatening firefighters at an emergency scene has been overturned on appeal, at least in part. James K. Gaito was convicted of misconduct at an emergency and disorderly conduct over an illegal burn incident that occurred on April 14, 2023.

The Holloway Fire Department responded to the incident that was initially reported as a brush fire. Upon arrival they discovered an illegal burn with vehicles parked to block their access to the fire. At trial firefighters testified that Gaito told them: “You’ns ain’t putting out the fire.”  “[If you try] to extinguish the fire, that there would be more problems.” “You guys will not put out this ‘F’ing’ fire. You’re trespassing on my property. You need to get out of here now.” A captain requested the police to respond leading to Gaito’s arrest.

Gaito was convicted in Belmont County Court, and sentenced to 60 days in jail (sentence suspended), probation for two years, a fine, and 30 hours of community service on the misconduct in an emergency charge, and 30 days in jail (sentence suspended), a fine, and court costs on the disorderly count. He appealed the convictions to the Court of Appeals of Ohio, Seventh Appellate District, Belmont County.

The Court of Appeals reviewed the testimony of the three firefighters, noting inconsistencies between some of the testimony and their original report, as well as inconsistencies between the various testimonies. Quoting from the decision (quotation marks and citation removed, and Gaito’s name used in lieu of the term Appellant):

  • Insufficient evidence supports a finding that Gaito hampered the firefighters from extinguishing the fire.
  • Gaito’s conduct here is not of the same quality as the conduct that has resulted in the convictions under this statute.
  • While hampering is not defined in the statute, the court [has] applied the common everyday meaning of hamper, which is to interfere with.
  • The term interfere commonly means to interpose in a way that hinders or impedes.
  • The few Ohio cases affirming a defendant’s conviction under R.C. 2917.13(A)(1) and (C) involved more affirmative acts than strong words or expelling profanity at emergency workers.
  • Gaito made comments to the firefighters in the instant case.
  • His words did not rise to the level of fighting words and did not match the conduct by the defendants in the other cases where courts upheld convictions for misconduct in an emergency under R.C. 2917.13(A)(1) and (C).
  • There was no evidence presented showing that Gaito was given a directive and defied it.
  • There was no evidence demonstrating that Gaito was given instructions to move or refrain from any actions and refused to follow.
  • No evidence demonstrated that he committed any action violative of the statute.
  • As to Gaito’s disorderly conduct conviction, his counsel represented at oral argument that he was not challenging this conviction.
  • For the foregoing reasons, Gaito’s conviction for misconduct at an emergency is reversed and vacated.
  • Appellant’s disorderly conduct conviction is affirmed.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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