firearms law update

8/8/2019 Firearms Law Update

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Jonathan FulkersonSection Chief, HHS

[email protected] 2010 AGO LEC


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Table Of Contents

License Basics Vehicle Carry

Castle Doctrine Firearms & Minors

Open Carry Renewals

Conclusion


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The Concealed Carry License Carrying a concealed deadly weapon is prohibited. 2923.12 Prohibition against carrying concealed handgun does not apply

to those with a license. 2923.12(C)(2)(b) or scope of duty LE2923.12(C)(1)

Hologram


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Forbidden Places For Licensee 2923.126(B)(1)

Police, Patrol & Sheriff's, airport, jail, BCI School safety zones* Courthouses

Class D Liquor permit* see 2923.121 (permit holder) Universities unless locked in vehicle Places of worship* Where prohibited by federal law 18 U.S.C. 930(a) & (g) (fed

workers), 39 CFR 232.1(l) (post offices) Day-cares Aircraft, State & Gov. Buildings

* some exceptions


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Forbidden Places For Anyone No person shall knowingly convey or attempt to convey a deadly

weaponinto Class D Permit 2923.121 (since 1986) School Safety Zones 2923.122 (since 1992) Courthouses 2923.123 (since 1996)

Does not apply to: an officer, agent, or employee who is authorized tocarry firearms and is acting within the scope of duties;

Does not apply to: any person who is employed in this state, who isauthorized to carry firearms, and who is subject to and in compliance

with the requirements of section 109.801 unless the appointing authority of the person has expressly specified that the exemption of this section does not apply to the person;

109.801 OPOTA Peace Officer/LEO requalifications


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Signage Employers may prohibit firearms on premises,

property & vehicles R.C. 2923.126(C)(1) Owner or person in control of land/premises

may post prohibition - 2923.126(C)(3) Signs conspicuously posted 2923.126(C)(3) May prohibit firearms or concealed firearms

2923.126(C)(3) Knowing violation is criminaltrespass M-4. If premises are parking lot/structure, only a civil cause of action for

trespass.


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DAS Approved Sign

Sample prohibition textin 2923.1212 Free, downloadable at

http://www.ohioattorney general.gov/Enforcement/Concealed-Carry


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Vehicle Carry 2923.16 Four scenarios:

Transport of loaded firearm by non-ccw licensees2923.16(B)

Transport of firearm in vehicles (i.e. not a loadedfirearm) 2923.16(C)

Transport of loaded handgun while under influence2923.16(D)

Transport of loaded handgun by CCW licensees2923.16(E)

Possible changes in SB 239 detailed in later slide


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Vehicles II No transport/have loaded firearm that is accessible

without leaving vehicle (B) No transport firearm unless person can lawfully

possess under state/fed law, unloaded and(C) Closed package, box, case (C)(1) Compartment can be reached by leaving vehicle (C)(2) Plain sight, secured in rack (C)(3) If at least 24 inches long & barrel is 18 inches, in rack,

stripped and/or plain sight (C)(4) Lawful possession?


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Vehicles III

No transport if under influence of alcohol orlisted controlled substance/metabolite2923.16(D)(2)

Failure to inform if LE has actualknowledge of status as licensee, minor

misdemeanor 2923.16(I)


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Vehicles IV CCW Licensees 2923.16(E) No person with CCW license shall transport loaded

handgun in vehicle unless carried in one of the following ways: Loaded handgun in holster on persons person Loaded handgun in closed case , bag, box or other container that is

in plain sight and that has a lid, a cover, or a closing mechanism witha zipper, snap or buckle which lid, cover, or closing mechanism mustbe opened for a person to gain access to the handgun.

Loaded handgun is securely encased by being stored in a closedglove compartment or vehicle console or in a case that islocked .

Note : glove compartment and console need not be locked


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Castle Doctrine

What is it? Why do we have it?

How does it work in practice? Civil and criminal immunity

Burden shifting


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Castle Doctrine II 2307.60(B)(2)Civil immunity . Claim for relief in

tort barred for injury if Person engaged in conduct would be a felony, MOV &

attempts and conduct was proximate cause of injury orloss regardless of prosecution for crime

Immunity does not apply to apply to innocent bystander w/o connection to conduct that prompted exercise of

defense of self/other 2307.601 No duty to retreat if in own home or

vehicle for tort determination purposes


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Castle Doctrine III

2901.05 Criminal immunity .Presumption of self-defense in criminalaction if in residence or vehicle, rebuttable by preponderance

2901.09 Person lawfully in own home or

vehicle has no duty to retreat for criminalimmunity


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Firearms and Minors Possession of firearm by minor alone not a crime in

Ohio Furnishing 2923.21, Underage purchase 2923.211 Cannot sell firearm to person under 18 Cannot sell handgun to person under 21 Cannot furnish firearm to person under 18 or

furnish handgun to person under 21 except forhunting, sporting, educational purposes

Violation is F-5 to improperly furnish, F-4 topurchase


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Firearms and Minors II

Proper Furnishing 2923.21(A)(3) cannot: Furnish any firearm to a person who is under eighteenyears of age orfurnish any handgun to a person who is

under twenty-one years of age, except for lawfulhunting, sporting, or educational purposes , including,but not limited to, instruction in firearms or handgunsafety, care, handling, or marksmanship under thesupervision or control of a responsible adult ;


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Open Carry Not defined in statute Jons definition lawfully carrying a firearm in an

safe, unconcealed, non-offensive manner

Lawfully - carried in location where presence of firearms is not otherwise prohibited

Generally refers to holstered handguns butsometimes applied to long guns


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Open Carry II Allowed because not specifically prohibited other

than courthouse, liquor, school zone No Ohio court has explicitly held that the right to

bear arms under the Ohio Constitution or U.S.Constitution guarantees the right to open carry

No Ohio court has held right to open carry guarantees right to be free from investigation orarrest for other crimes


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Open Carry III - Historical Ohio Constitution, Section 4, Article I, The people have the

right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall notbe kept up; and the military shall be in strict subordination tothe civil power.

Ohios first no CCW statute enacted eight years after theConstitution of 1851 was ratified. R.S. 6892, 56 Ohio Laws 56(1859)

No CCW remained part of Ohio law until 2004. See G.C.12819, 107 Ohio Laws 28; R.C. 2923.12

The concealed weapon statute was upheld for over 125 years.Ballard v. State (1885), 43 Ohio St. 340


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Open Carry IV

State v. Hogan (1900), 63 Ohio St. 202, 218-219 oft cited dicta: A man may carry a gun for any lawful purpose,

for business or amusement, but he cannot goabout with that or any other dangerous weaponto terrify and alarm a peaceful people.


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Open Carry V Right to possess firearms under the Ohio

Constitution is a protected right subject only tolimited restrictions. Arnold v. Cleveland (1993), 67

Ohio St.3d 35 No constitutional right to bear concealed firearms

but there is a right to bear arms. Klein v. Leis (2003),99 Ohio St. 3d 537, 541

Ohio Supreme Court has never defined the meaning of the right to bear arms


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Open Carry VI - Example

Joseph Sean McVey of Coshocton Asheville, NC Regional Airport on April 25shortly after AFO left with President Obama

Had holstered handgun


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Open Carry VII Example Cont. Key facts from media (case set for August trial): At about 2 p.m., airport police saw McVey get out of a car

with Ohio plates and noticed that he had a holsteredhandgun. When McVey got out of the car, he was listening to a handheld scanner and radio that had a remote earpiece

McVey told an officer in the airport parking lot he wanted tosee the President

McVeys car equipped with police gear, including clear LEDlaw enforcement-style strobe lights in the front and reardash, a mounted digital camera in the front window, fourlarge antennas on the trunk lid, and a working siren box

Charged under NC law for going armed to the terror of thepublic, or GATTTOTP


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Open Carry VIII

McVey case illustrates major LE concern differentiating threats from otherwise lawfulactivities

Fact dependent analysis Open carry is a growing issue in Ohio


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Open Carry IX The real problem : Public resentment for law

enforcement response/charges for the exercise of aconstitutional right

Often charged with menacing or inducing panic -2903.21 and 2917.31

The real answer : It is impossible to say whether anopen carrier in a given situation not also violating

other law. Open carry is not mutually exclusive of other crimes depending on the facts Resolution? Officer Safety? California solution?

Training?


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Open Carry X

Prosecution and arrest decisions on opencarry Officer and public safety always paramount Distinguish from the true open carrier vs.

the criminal Inducing panic probably most often cited


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Renewals

Issues will surface in 2013 unless changesmade to law First renewal requires proof of competency

certification including valid or expired license2923.125(F)(1)

No time limit on first renewal six year ruleremoved

License still valid for 30 days after expiration date


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Renewals II Second renewal (2013 onward) requires proof

of renewed competency certification2923.125(G)(4)

Do not need to take class again, dated signed cert Must show range competent Range competent not defined but seems to

include idea of firing on a range and showing proficiency and aptitude

Range competency test not defined


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McDonald v. Chicago 561 U.S. __ (2010) 5:4 Holding - the right to have a gun for self-defense

in the home is a fundamental constitutional right fundamental implies strict scrutiny test

The right is not a right to keep and carry any weapon whatsoever in any manner whatsoever andfor whatever purpose. implies some lesser test

Significance? Right nationalized but since most

firearm regulations are local, scope of right is very unclear, unclear what laws will survive review Can only speculate as cases progress


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Thank you for your attention

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