From http://66.169.222.220/legal/ohio.html
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                       IN THE COURT OF APPEALS
                    FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO

CHUCK KLEIN, ET AL.,            :       APPEAL NOS. C-020012
                                :
                                :                   C-020013
Plaintiffs-Appellees,           :
                                :                   C-020015
vs.                             :
                                :                   C-020021
SIMON L. LEIS, JR., SHERIFF,    :
                                :       TRIAL NOS. A-0004340
ET AL.,                         :
                                :                  A-0107121
Defendants-Appellants.          :

                          O P I N I O N
          Civil Appeal From: Hamilton County Court of Common Pleas
            Judgment Appealed From Is:  Affirmed as Modified
            Date of Judgment Entry on Appeal: April 10, 2002
==================================================================

Betty D. Montgomery, Attorney General of Ohio, Darrell M. Pierre, Jr., and
David S. Timms, Assistant Attorneys General, for the State of Ohio
Appellants. 

MichaelK. Allen, Hamilton County Prosecuting Attorney, John J. Arnold and
David Stevenson, Assistant Prosecuting Attorneys, for the County,
Township, and Municipal Appellants. 

Fay D. Dupuis, Cincinnati City Solicitor, Richard Ganulin, Assistant City
Solicitor, and Jonathan E. Lowy, Brady Center to Prevent Gun Violence
Legal Action Project, for the City of Cincinnati and all City Appellants. 

William M. Gustavson and Timothy A. Smith, for Appellees. 

Michael R. Moran, Eric A. Johnson, and Johnson & Moran Co., urging
affirmance for Amicas Curiae Ohio Association of Security & Investigation
Service. 

Mark P. Painter, Presiding Judge.

This court cannot rule on the propriety or efficacy of citizens carrying
concealed weapons. In our tripartite government, the legislature makes the
statutory laws. But those laws must comport with the United States and
Ohio Constitutions. The court's role is limited to determining the
constitutionality of the laws that the legislature enacts.

The General Assembly has enacted laws dealing with concealed weapons. The
issue today is R.C. 2923.12. It bans carrying concealed weapons, but seeks
to establish certain limited affirmative defenses to the ban. R.C. 2923.12
is unconstitutional under the Ohio Constitution (and arguably under the
United States Constitution, but we do not reach the issue of whether it
violates the Second Amendment). Similarly, R.C. 2923.16(B) and (C) ban the
transportation of loaded firearms in a motor vehicle. But that prohibition
is also subject to the limited and unconstitutionally vague affirmative
defenses of R.C. 2923.12.1 Those statutes are unconstitutional also.

There is no doubt that the Ohio Constitution grants citizens the right to
possess, and to bear, arms. That is exactly what it says.

The Ohio Constitution, Section 4, Article I, states, "The people have the
right to bear arms for their defense and security * * *." The framers of
the Ohio Constitution did not add this and others in a "bill of rights" as
amendments, as in the United States Constitution. They put the citizens'
rights right up front, in Article I. We believe they meant what they said.
Concerning weapons, they did not add the "well-regulated militia" language
of the Second Amendment, which has tended to create doubt about its proper
interpretation. (They did add a provision against standing armies, in time
of peace, but Ohio has no standing armies.)

Additionally, R.C. 4749.06 and 4749.10 set forth presumably constitutional
procedures under which a private investigator may acquire a permit to
carry a gun. But R.C. 4749.08(A) states, "[n]othing in this chapter shall
be construed as granting the right to carry a concealed weapon." (Emphasis
added.) The statutes do not prohibit anything; they just state that
they-in themselves-do not allow concealed carrying. To carry a concealed
weapon, private investigators today must rely on R.C. 2923.12. Because we
hold that R.C. 2923.12 is unconstitutional, we need not address R.C.
4749.06 and 4749.10.

While we do not need to reach the issue of whether R.C. 2923.12 violates
the Second Amendment to the United States Constitution, we question
whether the Second Amendment's "militia" language, often cited for the
proposition that only a militia may carry weapons, is any more restrictive
than the "standing armies" language of the Ohio Constitution. Surely, no
one would contend that a militia cannot bear arms. So why mention the
citizens' rights? We are not England, where hunting was once the preserve
of the landed rich; we are America, where the Pilgrims shot their
Thanksgiving turkeys. We are not a country where power is maintained by
people with guns over people without guns.

If times have changed, and weapons are no longer necessary to procure food
or safety (a dubious proposition), the proper course is to amend the Ohio
Constitution. This court can deal only with the law as written.

I. Regulation or Prohibition?

Both sides to this dispute agree that the General Assembly has the power
to regulate the bearing of arms, at least in some manner. Appellees here,
for instance, did not, and do not, seek to invalidate R.C. 2923.17, which
prohibits dangerous ordnance-bombs, explosives, machine guns, sawed-off
shotguns, and the like. And persons under a disability, such as convicted
criminals, the drug-addicted, and the mentally incompetent, are properly
constrained from association with weapons under R.C. 2923.13.

The problem with R.C. 2923.12 is that it does not simply regulate, but
effectively prohibits, law-abiding citizens from bearing weapons. Further,
the affirmative defenses the statute seeks to create are incomprehensible
to the ordinary citizen. Because the defenses are vague and subjective,
the law is susceptible to inconsistent and arbitrary enforcement.

II.Presumption of Guilt

The core of the dispute here is R.C. 2923.12, which totally prohibits any
law-abiding person from carrying a concealed weapon. The total prohibition
is then followed by a list of exceptions, or, more properly, affirmative
defenses. The practical effect of this statute is that any person carrying
a concealed weapon is subject to arrest, incarceration, and indictment
before being able to establish the legality of his or her actions. Thus, a
legal action subjects an innocent person to prosecution for a felony. It
is only later, at the peril of a trial, that innocence may be established.

Guns or no guns, we know of no other situation where a citizen is guilty
until proven innocent. And no one has been able to tell us how someone
walking might legally move a firearm from one location to another-if the
gun is visible, a citizen will be arrested for inducing panic; if it is
concealed, for violating R.C. 2923.12.

A law-abiding citizen may not be subject to arrest, incarceration,
indictment, trial, appeal, legal fees, and the possibility of loss of
freedom for doing a legal act.

It is the very real threat of arrest, incarceration, indictment, and trial
that provided the appellees with the standing to request a declaratory
judgment on the constitutionality of R.C. 2923.12. To obtain declaratory
relief, a plaintiff must establish that a real controversy exists between
the parties, that the controversy is justiciable, and that speedy relief
is necessary to preserve the rights of the parties.2 The real threat of
prosecution for a violation of a criminal statute is sufficient to confer
standing-an actual violation of the statute and prosecution is not
required.3 Since the plaintiffs in this case established that they or
their members carry concealed weapons, and since evidence presented in the
trial court makes clear that they are subject to arrest for doing so, they
had standing to seek a declaratory judgment. We thus overrule the
appellants' assignments of error that assert otherwise.

III. Carry a Gun, Concealed or Unconcealed, and Go Directly to Jail

As previously stated, Section 4, Article I of the Ohio Constitution grants
the people of Ohio "the right to bear arms for their defense and
security." In Arnold v. Cleveland, the Ohio Supreme Court recognized that
this right to bear arms is a "fundamental individual right."4 The court
also held that "[t]o deprive our citizens of the right to possess any
firearm would thwart the right that was so thoughtfully granted by our
forefathers and the drafters of our Constitution."5

Typically, legislative restrictions on fundamental constitutional rights
must pass the highest level of judicial review-strict scrutiny. Under this
standard, a law that seeks to limit the exercise of a fundamental right is
presumed to be unconstitutional unless the state can prove that it is
necessary to promote a compelling governmental interest,6 and that it is
narrowly tailored to accomplish that goal.

But according to precedent established bythe Ohio Supreme Court in Arnold,
the test we are required to apply is one of "reasonableness"-whether the
legislation is "fair, proper, moderate, suitable under the circumstances
and not excessive."7We believe, as did the trial court in this case, and
as did Judge Hoffman in his dissent in Arnold,8 that strict scrutiny is
the appropriate standard to be applied to legislation impinging upon
fundamental rights. We hope that the Ohio Supreme Court will use this case
as a vehicle to clarify the constitutional paradox created by the Arnold
decision. But as we are bound to follow our supreme court, we must presume
that the legislation is constitutional unless the appellees have proved it
to be unreasonable. The record in this case demonstrates that the statute
is unreasonable. It passes no level of judicial scrutiny.

The appellants in this case-the state of Ohio, the city of Cincinnati, and
a host of townships and municipalities-seek to characterize R.C. 2923.12
as a reasonable restriction on the manner in which citizens of Ohio may
exercise their constitutional right to bear arms for their safety and
security. They cite an Ohio Supreme Court case from 1920, State v. Nieto,
in which a statute that prohibited a person from carrying "a pistol, bowie
knife, dirk, or other dangerous weapon concealed on or about his person"
was challenged on state constitutional grounds.9

The Nieto court held that the statute was constitutional, reasoning that
it "[did] not operate as a prohibition against carrying weapons, but as a
regulation of the manner of carrying them. The gist of the offense [was]
the concealment."10 Presumably then, in 1920, one could carry a pistol,
bowie knife, dirk, or other dangerous weapon on or about his person,
provided only that it was not concealed. But today, one may not. Today, as
the trial court found and the record reflects, if one were to openly carry
a firearm, one would be arrested for inducing panic 11 or for disorderly
conduct.12Further, we believe that State v. Arnold has superceded Nieto.

Rather than view this case myopically, as the appellants urge us to do,
and consider only a single statute in isolation, we must consider a
broader scope. And the broader scope, as the evidence introduced in the
trial court reflects, is that R.C. 2923.12, in conjunction with other
statutes and the practice of arrest for openly carrying a firearm, acts as
a total prohibition on the carrying of firearms. Either way the citizen
goes to jail. No Ohioan can exercise the constitutional right to bear
arms, whether concealed or unconcealed, without risking jail.

The exercise of no other fundamental right subjects a citizen to arrest.
Should a citizen first go to jail for voting, and be required to prove
innocence of multiple voting? Should a citizen first go to jail for
marrying, and then get out by proving innocence of bigamy? Should we jail
people for publishing a newspaper, then require them to prove that what
was published was not libelous or obscene?

We hold today that R.C. 2923.12 is not fair, proper, moderate, or suitable
under the circumstances, and that it is indeed excessive. It acts to
deprive law-abiding citizens of the right to bear any arms and, in so
doing, thwarts a fundamental right that was granted by our forebears and
the drafters of our Ohio Constitution.

IV. But Will You Be Convicted?

Ohio's total ban on concealed weapons contains affirmative defenses that
purport to define when it would be legal to carry a concealed weapon. The
appellants argue that these affirmative defenses save the statute because
they provide reasonable exceptions to the general ban. But these
affirmative defenses do not save the statute for two reasons.

First, as we have previously noted, the record reflects that these
affirmative defenses are largely ignored at the initial point of contact
between a citizen and an officer. The act of carrying a concealed weapon
typically results in arrest, and affirmative defenses are sorted out
later. The practical effect then is to expose a citizen to arrest,
indictment, and prosecution for what later may be determined to have been
the legal exercise of a fundamental right. And that, as we have held
above, cannot be.

Second, the affirmative defenses are unconstitutionally vague. They may
not be understood by a citizen of reasonable intelligence, and they are
susceptible to arbitrary enforcement.

The first affirmative defense is that a citizen may carry a concealed
weapon provided that it is (1) carried for defensive purposes, (2) while
the citizen is engaged in a lawful business, (3) when it is necessary to
conduct the business at a time and place that renders the citizen
"particularly susceptible to criminal attack," such that (4) a "prudent
person" would be justified in going armed.13

A second affirmative defense to the crime of carrying a concealed weapon
may be asserted when the weapon is carried (1) for defensive purposes, (2)
while the citizen is engaged in a lawful activity, (3) and he has
"reasonable cause" to fear a criminal attack upon himself, a member of his
family, or his home, (4) that would justify a "prudent person" in going
armed.14

The third defense is that a weapon may be kept at hand for any "lawful
purpose" in one's own home.15

Finally, R.C. 2923.12(C)(4) states that a weapon, other than a firearm,
may be transported in a motor vehicle for any lawful purpose if the weapon
is not "on the actor's person." But if the weapon is a firearm, then the
citizen must also comply with the dictates of R.C. 2923.16(C). According
to that statute, a citizen may only transport a loaded firearm in a motor
vehicle if it is not accessible without leaving the vehicle,16 unless one
of the two affirmative defenses under R.C. 2923.12(C)(1) or 2923.12(C)(2)
is applicable.17

In this case, evidence adduced at trial demonstrated that a senior police
official with many years of law enforcement experience could not determine
whether an affirmative defense was applicable. The witness testified that
he would have needed to call a prosecutor or an attorney. If a senior law
enforcement official cannot properly apply the affirmative defenses to a
given situation, the average citizen of ordinary intelligence could be
expected to fare no better. We consider ourselves persons of average
intelligence, and we cannot tell what is legal and what is not. As
written, the affirmative defenses are unconstitutionally vague-they do not
provide clear warning of the conduct that they seek to exempt from
criminal liability.

"'Vague laws offend several important values. First, because we assume
that man is free to steer between lawful and unlawful conduct, we insist
that laws give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly.'"18 Thus vague laws may trap the unwary because they do not
provide adequate warning of the conduct that they seek to prohibit.
"'Second, if arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who apply them. A vague law
impermissibly delegates basic policy to policemen, judges, and juries for
resolution on an ad hoc and subjective basis.'" 19 Vagaries are not law.

A statute may be held unconstitutionally vague if a "person of common
intelligence" is unable to determine what conduct is prohibited, or if the
statute fails to "provide sufficient standards to prevent arbitrary and
discriminatory enforcement."20 The record reflects that R.C. 2923.12(C)(1)
through (4) fail both prongs of the test. They do not save the ban on
carrying concealed weapons-they simply add a layer of confusion. And
because R.C. 2923.16(B) and (C) rely upon the affirmative defenses for
interpretation and contribute to the total prohibition against bearing
arms, they are also unconstitutional.

Trial courts have applied the law inconsistently, and appellate courts
have done no better. 21 We mention these decisions of our colleagues not
to criticize, but only to demonstrate that vague statutes are open to
subjective interpretation, rather than objective application. The result,
which is confusing or opaque to the average citizen-and to police
officers, lawyers, judges, and jurors-is an unconstitutional delegation of
public-policy matters. When the police, the citizens, and the courts all
must guess at the meaning of a criminal statute, subjective and arbitrary
enforcement results.

Citizens of ordinary intelligence, experienced police officers, and the
court system all have had difficulty discerning what the General Assembly
intended to be an affirmative defense to the charge of carrying a
concealed weapon. Thus, to exercise a fundamental constitutional right,
citizens must chance their liberty to the vagaries of what a random judge
or jury might find "reasonable." Constitutional rights may not rest on a
foundation of quicksand.

We affirm the judgment of the trial court that the affirmative defenses
are unconstitutionally vague, that vagueness renders the general
prohibition in R.C. 2923.12 a total prohibition that is unconstitutional
on its face, and that those statutes that force reliance upon them are
also constitutionally infirm. We overrule the appellees' assignments of
error to the contrary.

V. Alleged Bias of Trial Judge

The city of Cincinnati, and to a lesser degree the county, township, and
municipal appellants, make much of the alleged bias of the trial judge
(Judge Ruehlman's wife and infant daughter were abducted at gunpoint in
1989).22 When bias is based on facts known at the time the trial judge is
deciding the case, the sole remedy is an appeal to the Chief Justice of
the Ohio Supreme Court.23 The city has maintained that the bias in this
case arose too late to take that path. The city assigns the following as
error:

The trial court violated the code of judicial conduct, disregarded the
plaintiffs' lack of standing, spited stare decisis, usurped legislative
authority, ignored burden of proof, made clearly erroneous findings,
misapprehended the law, and otherwise abused its discretion.

Declaring an unconstitutional statute unconstitutional is not judicial
bias-it is judicial duty. Based on the law and the record before him, the
trial judge had no choice but to rule as he did. Neither do we, regardless
of our personal opinions. If Judge Ruehlman had ruled the other way, we
would have reversed him.

All judges bring the sum total of life's experiences to their courtrooms.
While we strive to be free of bias or prejudice, we should not disregard
our knowledge of humanity-our experiences in the ways of the world.

We would not hesitate to criticize a judge who crosses the line. But the
city's attack on the trial judge in this case is offensive. Judging can
often be a lonely and thankless job; one side of any dispute is always
unhappy. We expect the normal slings and arrows of outrageous criticism.
But to be subject to unwarranted allegations of bias-based on an event
that might at first blush arguably create bias, if any, in the other
direction-is beyond justification.

We overrule the appellants' allegations.

VI. Evidentiary Issues

The appellants have collectively assigned a variety of errors to the trial
court's evidentiary rulings. The assignments may be consolidated and
recast as follows: (1) the court relied too much on the appellees' expert,
and (2) the court did not rely enough on the appellants' expert. We
overrule these assignments.

At issue is the testimony of two experts. Dr. David B. Mustard is an
economics professor from the University of Georgia. He testified for the
appellees that, according to his studies, states that had enacted some
form of legislation permitting law-abiding citizens to carry concealed
weapons had not experienced a rise in violent crime, accidental deaths, or
felonious police deaths. Instead, he testified that a statistically
significant reduction had occurred in violent crime-murder, rape, robbery,
and aggravated assault-with the most profound impact found in urban areas.
Mustard also conceded that some experts in his field disagreed with his
methodology, and that reasonable people might differ on the efficacy of
various concealed-carry laws.

Professor Franklin E. Zimring is a law professor at the University of
California at Berkeley. Zimring has written extensively on firearm
regulations. He testified for the appellants that, in his opinion, Ohio's
concealed-carry laws were a reasonable attempt to (1) reduce the
deadliness of assaults and robberies in public places; (2) provide the
police with a basis for early intervention before a more dangerous crime
occurred; and (3) ensure the safety of police officers. He also testified
that no state with significant urban areas allowed the unrestricted
carrying of weapons. But he conceded that he was not familiar with all of
the related Ohio statutes regulating access to weapons, such as those that
prohibit persons under a disability from acquiring or possessing a weapon.

From the trial court's findings of fact and conclusions of law, it is
clear that the court found Mustard's testimony helpful. Indeed, the court
adopted much of it. But the court gave no weight to Zimring's opinions
and, even though the testimony remains part of the record in this appeal,
stated that it "should be stricken from the record."

Initially, we note that "the determination of an expert's qualifications
to testify on a particular subject is within the sound discretion of the
trial court."24 An abuse of discretion is more than an error of law or
judgment-it implies that the court's attitude was unreasonable, arbitrary,
or unconscionable.25 We can discern no abuse of discretion in the trial
court's admission of either expert's testimony. Nor can we determine that
the court was speaking literally when it suggested that Zimring's
testimony should have been stricken. But we believe that the trial court,
in its "gatekeeper" role, could have excluded Zimring's testimony. We hold
that both experts' opinions are properly part of the record and overrule
any assignment of error to the contrary.

Next we turn to the weight the trial court gave each expert's testimony.
The weight and credibility that is to be given to evidence, including
expert testimony, are within the discretion of the trier of fact-in this
case, the trial court.26 The court was free to accept all, part, or none
of any expert witness's testimony, whether it was merely evidential or
tended to prove the ultimate fact.27

We hold that the trial court did not abuse its discretion in assigning no
weight to Zimring's testimony. His opinion regarding Ohio's
concealed-carry laws was of limited usefulness because the record reflects
that it was not considered in the context of Ohio's other laws, law
enforcement practices, or the state constitution. Simply because a law
professor believes a statute is reasonable does not make it so.

Similarly, the court was free to adopt Mustard's testimony. He essentially
testified that when states passed some form of legislation that allowed
law-abiding citizens to carry concealed weapons, there was minimal
detrimental effect and a small positive impact in key areas. This may be
comforting should Ohio enact such laws. And it may tend to show that
Ohio's concealed-carry laws are stricter than necessary. But it does not
bear directly on the reasonableness of the current statute. That statute
is unreasonable because it, in conjunction with the practice of arrest for
openly carrying a weapon, effectively prohibits law-abiding citizens from
exercising the constitutional right to bear arms, and because it is vague.
Thus, while we do not find the testimony crucial to the resolution of the
issue in this case, we hold that the court did not abuse its discretion in
considering it.

VII. The County, Township, and Municipal Appellants

Finally,the county, township, and municipal appellants claim that the
trial court erred by failing to dismiss them from the action. Their sole
argument supporting this assignment is that, in enforcing state laws, they
are acting as agents of the state. In the absence of any further
explanation, we construe this argument to mean that if the trial court
were to have enjoined the state from enforcing R.C. 2932.12, then the
county, township, and municipal appellants would have been bound by the
injunction as the state's agents.28 Thus, according to these appellants,
they were not necessary parties for the adjudication.

The law requires that when, as in this case, declaratory relief is sought,
any entities that "have or claim any interest that would be affected by
the declaration shall be made parties to the action or proceeding."29
Clearly, the county, township, and municipal appellants have an interest
in R.C. 2923.12. They cite no law for the proposition that, as agents,
they are entitled to withdraw at their discretion. We thus overrule the
final assignment of error.

VIII. R.C. 2923.12 and R.C. 2923.16(B) and (C) are Unconstitutional

Perhaps the General Assembly can, or will, enact a concealed-weapon law
that is constitutional. But this court can only deal with what we have
before us, which is an unconstitutional law. Because R.C. 2923.12 violates
the Ohio Constitution, it is void. We affirm the trial court's judgment to
the extent that it grants declaratory relief and enjoins the several
defendants from enforcing R.C. 2923.12 and R.C. 2923.16(B) and (C). We
modify the injunction to delete the reference to R.C. 4749.06 and R.C.
4749.10. Because R.C. 2923.12 is unconstitutional, these sections are
innocuous.

X. We Grant No Further Stay

This court granted a stay during this appeal. In addition, the General
Assembly has been on notice of the problems with this statute for more
than a year. We will not continue to allow the enforcement of an
unconstitutional statute. We grant no further stay.

Judgment affirmed as modified.
-----------------------

Footnotes may be viewed at http://66.169.222.220/legal/ohio.html

17 responses total.

It's a very entertaining read.  Cincinnati got slapped down hard in this.
Concealed carry by the law-abiding without a license is now legal in Hamilton
County, Ohio, just as in Vermont.

The government has promised to appeal to the State Supreme Court, holding out
the possibility of a statewide legalization of the right to bear arms in Ohio.

*yawn*  go read the turner diaries or something.

Why don't you call me a nigger, kike, spook, or wetback while you're basking
in your bigotry?  Only "kike" would really fit, since I'm a Jew, but you don't
seem to be paying much attention to specifics in that regard.

Actually, all he's calling you is a fanatic.  Since that is not a 
distinction of class or type, your comparison to a racial slur is 
specious.

This response has been erased.

re #5: as usual when you post, no one will pay any attention.

This response has been erased.

re3:  you're jewish...by birth?  


*chuckles*

sorry let me rephrase that...you aren't jewish by conversion.
right?

i mean like the character WALTER in THE BIG LEBOWSKI?

right?


you're not one of *those* i'll bet.

heh.

i think the only thing worse than people dividing humans by race is asserting
that a religion is also a race. 

shit...now i'll NEVER get my indian *fishing card*

i was hoping if i did enough sweatlodges my blood quantum would
increase so that i'd be eligable.

FREE SMOKED CHUBS FOR ALL THE GREXERS!!!

The point being that the state of Ohio found out that the RKBA is not
something they can regulate with laws when it is stated in the constitution.

Fanatic?  As I understand it, by his "Turner Diaries" reference he was
equating my support of armed self-defense as stated in the Ohio Constitution
with far-right, redneck, Aryan Nation, neo-Nazi, Jew killing nutjobs.  Don't
be surprised if I find that just a touch offensive.

really? i think you'd make an EXCELLENT nazi, walter.


*shrug*

if ya can't beat 'em - JOIN "EM!

KLINK!!!!


><
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