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KLEIN & FEELY CASE DOCUMENTS

 

OHIO'S CHALLENGE TO THE CONSTITUTIONALITY OF ORC 2923.12, et. al. (Carrying Concealed Weapons).

For the full ANATOMY OF THIS CASE AND CONCEALED FIREARMS, PLEASE SEE: ANATOMY

OHIO'S NEW CCW Permit law is at best confusing and at worst, worse than no permit system at all. The language is so twisted it is difficult to determine where a permit holder can carry. Example: to possess a firearm in an Automobile it must be in a holster, on your person and in plain sight. In other words, you now need a permit to do something the Ohio Supreme Court said we had the constitutional right to do - carry an exposed gun??? In addition, you must advise any police office who stops you that you are armed - some constitutional right that turned out to be!!??

What we will need (when the law takes effect) is another hero - another Pat Feely - one who finds himself arrested for violating one of the sections of the new law and will stand and fight and not cop a plea. If you are such a person or know such person, contact me and we'll go to work.

To read the full text of the law, scroll down to "CONTACTS" and click on the web site for OHIOANS FOR CONCEALED CARRY.

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CONTENTS

CONTACTS:

List of contact information of case principals.

DECISION OF THE TRIAL COURT:

Complete orders of court based on the findings of fact and conclusions of law.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW:

Complete text of the Court's findings.

DECISION OF THE 1ST APPELLATE DISTRICT COURT OF OHIO:

Full text of the unanimous appeals court decision.

SUPREME COURT BRIEF:

Plaintiffs/Appellees Brief to the Supreme Court.

OHIO SUPREME COURT DECISION:

(Klein v. Leis)

 

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DECISION OF THE TRAIL COURT

 

COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
CHUCK KLEIN, et al.

Case No.: A0004340

Plaintiffs

Judge Robert P. Ruehlman

vs.

SIMON LEIS, SHERIFF, HAMILTON COUNTY, et al.

COMBINED CASE

Defendants.

FINAL JUDGEMENT ENTRY GRANTING DECLARATORY JUDGEMENT AND PERMANENT INJUNCTION

This cause came on for trial on the complaint of the Plaintiffs in the combined case requesting this Court to declare R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, unconstitutional on their face and as applied to the Plaintiffs. The Plaintiffs also sought a permanate injunction against the enforcement of said laws. The Court, after trial on the merits and a consideration of all of the testimony, and considering all of the filings, briefs and arguements of counsel, rendered findings of facts and conclusions of law dated January 10th, 2002 which findings of fact and conclusions of law are hereby incorporated by reference. It is therefore the ORDER of this Court, consistent with those findings of face and conclusions of law, as follows:

1. That R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, are unconstitutional on their face and as applied to the Plaintiffs in that said sections deny to the Plaintiffs, in particular, and the law-abiding citizens within Hamilton county, Ohio, in general, the right to carry a concealed firearm for their defense and security, contrary to their Ohio Constitutional rights.

2. Consistent with the Order set forth in paragraph 1 of this final judgement entry, the Court hereby ORDERS a permanent injunction against the arrest and prosecution of the Plaintiffs Charles H. Klein, Jr., Patrick Feely and James Cohen for a violation of R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, as said sections relate to the carrying of a firearm on their person or in a motor vehicle, and a permanate injunction against the enforcement of said sections to the extent that said sections may be deemed to apply to said Plaintiffs for the carrying of firearm on their person or in a motor vehicle.

3. Further, the Court hereby ORDERS a permanent injunction against the arrest and perosecution of law-abiding citizens within Hamilton Cournty, Ohio, for a violation of R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, as said sections relate to the carrying of a firearm on their person or in a motor vehicle, and a permanate injunction against the enforcement of said sections to the extent that said sections may be deemed to apply to law-abiding citizens within Hamilton County, Ohio as said sections relate to the carrying of firearm on their person or in a motor vehicle.

IT IS SO ORDERED (Signed and Entered) Robert P. Ruehlam, Judge, Court of Common Pleas

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
CHUCK KLEIN, et al.

Case No.: A0004340

Plaintiffs

Judge Robert P. Ruehlman

vs.

SIMON LEIS, SHERIFF, HAMILTON COUNTY, et al.

COMBINED CASE

Defendants.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

The Court, upon consideration of the testimony and evidence in this case, and the legal arguments and briefs of counsel, hereby makes the following findings of fact and conclusions of law. To the extent deemed necessary by law, the findings contained herein are clear, convincing, and beyond a reasonable doubt.

1. This is a consolidated action brought by the individual Plaintiffs, Charles H. Klein, Jr., referred to herein as Chuck Klein, Patrick Feely, referred to herein as Pat Feely, James Cohen, Leann Driscoll, Vernon Ferrier, and the organization Plaintiffs, Second Amendment Foundation, Ohioans For Concealed Carry, and Peoples Rights Organization, against the State of Ohio, Governor Robert Taft, Sheriff Simon Leis, Police Chief Thomas Streicher, and all of the law enforcement organizations in Hamilton County involved in the enforcement of R.C. 2923.12 and R.C. 2923.16. The consolidated action seeks a declaration that R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, are unconstitutional on their face and as applied to the Plaintiffs. It is the contention of the Plaintiffs that said statutes prohibit law abiding citizens from carrying concealed firearms on their persons, or in their cars, for their security and defense. The consolidated action also seeks a permanent injunction against the Defendants from enforcing said laws against the Plaintiffs and other law abiding citizens.

2. R.C. 2923.13 makes it a felony for any person who is a fugitive from justice, any person who is under indictment or been convicted of any offense of violence, any person who is under indictment or been convicted of any illegal drug offense, any person who is drug dependent or in danger of drug dependence or a chronic alcoholic, and any person who has been adjudicated a mental incompetent to possess a firearm. R.C. 2923.15 makes it a misdemeanor for any person under the influence of alcohol or any drug of abuse to carry or use a firearm. R.C. 2923.24 makes it a misdemeanor or a felony for any person to possess a firearm with the intent to use it criminally. This consolidated action does not seek to declare R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, unconstitutional as those statutes would apply to persons prohibited by R.C. 2923.13, R.C. 2923.15 and/or R.C. 2923.24 from possessing any firearm because those persons are already prohibited by law from possessing any firearm. The consolidated action only seeks a declaration of unconstitutionality and an injunction against R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, as said statutes relate to the Plaintiffs and other law abiding persons. Law abiding persons are defined herein as persons not otherwise prohibited by federal, state of local law from possessing firearms.

3. Plaintiff James Howard Cohen is 59 years old and the owner of Capri Pizza. He has been in the business for over 20 years. Capri Pizza is a retail pizza store, and a wholesale food business that sells to canteen type trucks that sell the end product at sites around the city. Mr. Cohen works in the business with his wife. They start their day at approximately 2:30 a.m. Mr. Cohen delivers the food to the canteen trucks at certain spots each day at the same time each day. In selling the food, Mr. Cohen maintains large amounts of cash, normally up to $1,000. All of his deliveries are in the dark and some of them are in high crime areas of the city. Within the last several years, Capri Pizza was the victim of a robbery while Mr. Cohen was in the store. As the robber fled, he fired a shot from a gun. In court, the robber threatened to kill Mr. Cohen if he ever got out of prison. On another occasion, a person jumped in his car when he stopped at an intersection. He has had a kidney and his colon removed over the last several years and is physically unable to defend himself without a firearm. Mr. Cohen has received firearms training. Mr. Cohen has a need to carry a firearm to defend himself in his business and while making deliveries in his motor vehicle and, therefore, he carries a concealed firearm when he believes it is necessary to defend himself and his wife in his business. Mr. Cohen believes that if found in possession of a concealed firearm that he would be arrested like his former employee, Plaintiff Pat Feely. Mr. Cohen is a law abiding citizen who has never been arrested or charged with a criminal offense and he is not otherwise prohibited from possessing a firearm by any section of state or federal law.

4. Plaintiff Patrick Joseph Feely is self employed in the business of driving a food truck around to various factories in the Cincinnati area. In the past, Mr. Feely worked for Plaintiff Cohen at Capri Pizza. Mr. Feely primarily drove a delivery truck to the canteen drivers to deliver to them Capri Pizza products. Mr. Feely worked for Mr. Cohen for over 10 years. After a robbery at the Capri Pizza restaurant at gunpoint and the attempted robbery of a delivery person, Mr. Feely began to consider carrying a concealed firearm for his defense. Mr. Feely has received firearms training. He consulted with lawyers and others about his right to carry a concealed firearm since there is no permit system in Ohio to allow law abiding citizens to carry a concealed firearm. As a result of those conversations, Mr. Feely began to carry a concealed firearm while making deliveries. In September of 1999, Mr. Feely was stopped while working by a Fairfax police officer because of expired license plates on his employer s van. The officer asked Mr. Feely if he was carrying a firearm and Mr. Feely admitted that he was. Mr. Feely was arrested and transported to the Justice Center. Mr. Feely was handcuffed, had his picture taken, was booked and strip searched. He was required to post a bond to be released. Although Mr. Feely explained to the arresting officer his reasons for carrying the concealed firearm, the officer did not release him; although Mr. Feely s lawyer explained to the prosecutor Mr. Feely s reasons for carrying a concealed firearm, the prosecutor still prosecuted him. Mr. Feely was indicted and charged with a felony carrying a maximum sentence of 1 and « years in the penitentiary. Mr. Feely was found not guilty at the trial. Although found not guilty on that occasion, Mr. Feely has a fear that he will again be arrested, strip searched, forced to hire a lawyer and defend himself against felony charges. Plaintiff Feely is a law abiding citizen who is not otherwise prohibited from possessing a firearm by any section of state or federal law.

5. Plaintiff Chuck Klein is a licensed private investigator and free lance writer. Mr. Klein has experience as a certified police officer and has worked in law enforcement in Ohio and Indiana. In Indiana, he was licensed to carry a concealed firearm. He currently possesses a Florida permit to carry a concealed firearm which is recognized in neighboring states. He possesses a federal firearms license which he uses to receive firearms for evaluation for magazine articles. He has numerous publications in magazines and books concerning firearms, defensive shooting and the rights of gun owners. He is a NRA certified instructor in, among other thing, firearms and self- defense. Mr. Klein has carried or had close at hand a firearm for most of his adult life. Mr. Klein has been threatened with arrest for carrying a concealed firearm as recently as approximately 6 months ago when he contacted the Police Chief of Amberly Village, a Defendant in this case, and discussed issues relating to protection of synagogues from fire bomb attacks. Mr. Klein lives near Over-the-Rhine, a high crime area of Cincinnati, and regularly walks there for business and pleasure. Mr. Klein has been accosted and assaulted in Over-the-Rhine, threatened with bodily harm and followed and shadowed. Mr. Klein has used the display of a firearm to stop a deadly attack on himself while acting as a private investigator in Indiana and to deter a physical aggression at a local marina. A neighbor was robbed and pistol whipped in front of Mr. Klein s house. Mr. Klein is almost 60 years of age and does not have the physical ability he once had to stop a deadly physical attack without the use of a firearm. In spite of his belief that he has an affirmative defense under R.C. 2923.12, Mr. Klein has a fear that he will be instantly arrested if found to be in possession of a concealed firearm. Mr. Klein also has no doubt that he would be arrested by police officers if he carried an unconcealed firearm. As a private investigator, Mr. Klein can obtain a license to carry an unconcealed firearm, but carrying a firearm unconcealed to conduct investigations and interviews would make it impossible for him to perform his business duties because persons being interviewed may feel threatened by the presence of an unconcealed firearm, which might result in his arrest for inducing panic, and it would be virtually impossible to conduct a discrete investigation with an unconcealed firearm.

6. The remaining Plaintiffs did not appear and testify at the trial. However, the issues in this case may be adequately considered and resolved based on the evidence presented at trial. Therefore, allegations and issues as they might pertain to the remaining Plaintiffs, such as organizational standing, are unnecessary to consider for the resolution of this case.

7. Carl Rauschenberger was presented as a witness. Mr. Rauschenberger is a certified law enforcement officer who has been in law enforcement in Hamilton County since 1964. Mr. Rauschenberger spent the majority of his career with the Cincinnati Police Division, but now is a law enforcement officer with the City of Greenhills, a Defendant herein. Mr. Rauschenberger received training in the carrying concealed firearms statute and the statute pertaining to transportation in a motor vehicle. In his career, he has personal experience in approximately 35 cases for the enforcement of each statute and has seen the statute enforced by other officers. The training Mr. Rauschenberger received was to arrest any person found in possession of a concealed firearm or who was transporting a loaded firearm in a motor vehicle. In his career, in the City of Cincinnati and in Hamilton County, when he has seen other police officers involved in situations where a person found in possession of a concealed firearm or who was transporting a loaded firearm in a motor vehicle the result was the same, they were always arrested. Also throughout his career, it has been his experience that any time a citizen was found in possession of an unconcealed firearm, they were arrested and charged with inducing panic or disorderly conduct. In his conversations with law enforcement officers from the other Defendant police organizations in this case, the answer is always the same, arrest any person found in possession of a concealed firearm or in possession of a loaded firearm in a motor vehicle.

8. The testimony of Mr. Rauschenberger was confirmed by witnesses for the defense. Deputy Sheriff David Luke of the Hamilton County Sheriff s Office is a training officer. The training provided at the Hamilton County Sheriff s Academy is the standard Ohio training curriculum provided by OPOTA, the Ohio Peace Officers Training Academy, which is used throughout the State of Ohio. The training he provides is directly from the OPOTA curriculum. That training is that any time you find a person in possession of a concealed firearm, there is probable cause to arrest that person. According to Deputy Sheriff Luke, the officers are taught that there is no discretion whether to arrest when someone is found in possession of a concealed offense; an arrest is always made. As to any affirmative defense, the training materials do not tell the officer what the officer is supposed to do if someone presents an affirmative defense. There is nothing in the training materials that state that the officer can determine whether an affirmative defense applies. According to Deputy Sheriff Luke, affirmative defenses are something that a defense attorney can raise after the person is charged with the offense. It was Deputy Sheriff Luke s belief that law abiding citizens carrying firearms did not pose a danger to police.

9. Lt. Col. Richard Janke, an assistant police chief for the City of Cincinnati, with over 20 years of experience, when confronted with the factual scenarios presented for Plaintiffs Cohen, Feely and Klein, and asked to make a determination of whether or not any of them had an affirmative defense to a charge of carrying a concealed firearm testified that he could not make that determination without consulting with counsel, such as a prosecutor. Likewise, Lt. Col. Janke confirmed that any citizen walking down the street with an unconcealed firearm was going to stopped by the police , detained, and that charges of inducing panic or disorderly conduct could be placed against them.

10. FIR cards are field interview reports. The FIR cards are used by police officers to document an interview with a private citizen that occurs on the street. FIR cards can be used if there is an arrest, but primarily they are used where there is no arrest of the individual. According to Lt. Col Janke of the Cincinnati Police, it is reasonable for a police officer to make a FIR card any time a police officer engages a citizen and believes that information from that communication should be available to other police. Lt. Col. Janke claimed that he would not fill our a FIR card if, after an extensive investigation and consultation with an attorney, he accepted someone s affirmative defense. A review of the City of Cincinnati FIR cards for a two year period shows approximately 300 involving weapons. They include many instances where Cincinnati Police Officers document a contact with a citizen who is carrying a toy gun, BB gun, or pellet gun, and even where a report that a citizen had a gun was found to be untrue. There is only one instance in the FIR cards where a Cincinnati Police Officer documented an encounter with a citizen who was carrying a concealed or unconcealed firearm and the citizen was released without arrest. The citizen was an employee of the Department of Defense.

The Hamilton County Sheriff s Department uses FIR cards in essentially the same manner as the City of Cincinnati. The parties have stipulated into evidence all of the FIR cards from the middle of 1995 until October 2000, a total of approximately 15,000. There were no instances of a citizen being found in possession of a loaded firearm who was released without being charged.

The Defendants have consistently claimed that the statutes in question do not violate the Ohio Constitution because they do not prohibit carrying firearms for one s defense and security, but only prohibit carrying firearms while concealed. The evidence proves conclusively otherwise. The law enforcement officers who testified agreed that any citizen walking down the street with an unconcealed firearm was going to be stopped by the police, detained, and that charges of inducing panic or disorderly conduct could be placed against the citizen.

11. Major J. P. Allen of the Ohio State Highway Patrol ( OSHP )was offered by the Defendants. Major Allen indicated that he was the official spokesperson for the superintendent of the OSHP. Major Allen has over 30 years of experience with OSHP. Major Allen has been involved in numerous incidents with citizens and carrying concealed weapons and transportation of firearms in a motor vehicle. Major Allen testified that he has on many occasions released persons found in a motor vehicle in possession of a loaded firearm. The majority of the persons released were hunters. However, the only provision of R.C. 2923.12 or R.C. 2923.16 that allows an affirmative defense for a hunter in possession of a loaded firearm in a motor vehicle is for groundhog and coyote hunters. According to Major Allen, if a police officer knows that a citizen has an affirmative defense to having a concealed firearm or a loaded firearm in a motor vehicle, the police officer cannot arrest the citizen. However, Major Allen testified that in any other case, regardless of the fact that the citizen has a concealed firearm or a loaded firearm in the vehicle, and regardless of the fact that the citizen does not have an affirmative defense as set out in the statutes, the police officer has the discretion whether of not to charge the person. According to Major Allen, the decision to arrest for carrying a concealed firearm or transportation of a loaded firearm in a motor vehicle is an arbitrary decision by the officer. This testimony by Major Allen was confirmed by the testimony of Hamilton County Deputy Sheriff David Luke who testified that there is no way to know in advance whether on a given set of facts a citizen will be arrested by the police if found in possession of a concealed firearm because it all depends on which deputy stops you.

12. According to Lt. Col. Richard Janke of the Cincinnati Police, all police use universal precautions in approaching any subject of police interest. Universal precautions are basic steps to ensure the safety of the officer in approaching the individual. Lt. Col. Janke testified that police officers always approach any citizen as if the citizen is in possession of a firearm. Lt. Col. Janke testified that those universal precautions would not change regardless of the Court s ruling in the present case: police would still use the universal precautions and take the steps necessary to ensure their safety when they approach a citizen by assuming that every citizen is armed. Like the City of Cincinnati, the OSHP trains its officers to always use universal precautions when approaching a citizen or a motor vehicle.

13. The Plaintiffs produced the testimony of Alan Childers, security manager for American Financial. Mr. Childers and his security staff routinely carry concealed firearms too provide corporate security. Even though it appears at first blush that Mr. Childers and the security staff have a claim to make of an affirmative defense under R.C. 2923.12 and R.C. 2923.16, Mr. Childers testified that he and his staff know that they are subject to being arrested if found to be carrying a concealed firearm in the performance of their duties.

14. It is clear from the testimony that police agencies in Hamilton County, with the exception of OSHP, arrest virtually all private citizens who are found in possession of a concealed firearm or who are found with a loaded firearm in a motor vehicle. Although it is possible that a very small number of citizens in Hamilton County are released rather than being arrested, it is also clear that the decision to arrest is exercised by police agencies arbitrarily, depending on which officer interacts with the citizen.

15. Major Allen testified that he has a concern for officer safety if R.C. 2923.12 and R.C. 2923.16 are declared unconstitutional. He acknowledged that he had no scientific basis for his opinion.

16. However, the Plaintiffs presented substantial compelling testimony on this issue. David Mustard, Ph.D., is a professor in the Economics Department of the Terry College of Business at the University of Georgia. Professor Mustard s specialty is in focusing on applied economic problems relating to matters like crime and law. Prior to the studies that he authored, Professor Mustard had no experience with firearms, had never shot a gun, and was not a member of any advocacy group concerning firearms. In 1999, Professor Mustard published a study, coauthored with Professor John Lott, entitled, Crime, Deterrence, and Right-to-Carry Concealed Handguns. He has also published a study entitled, The Impact of Gun Laws on Police Deaths. Both articles have been peer reviewed prior to publishing, which means that other researchers at the publications review and comment prior to the acceptance of the study for publication. The studies used econometrics, which is a statistical way of studying data surrounding economic types of questions. The studies analyzed crime data from every county in the United States to look at the impact of allowing law abiding citizens to carry concealed firearms on crime rates. The crime data was for violent crimes like murder, rape, robbery, aggravated assault, burglary, larceny and auto theft from the published statistics of the FBI. Other government published data, such as data from the Bureau of Census was also used. The study looked at states that enacted a shall issue permitting system, where the government is required to issue permits to allow law abiding citizens to carry concealed firearms, and compared the data from those states to other states to determine the impact of the change in the law that allowed the citizens to carry concealed firearms. The studies produced statistically significant results, which means that there was between a 95% and 99% probability that the results were not random or due to chance.

17. In the Crime, Deterrence, and Right-to-Carry Concealed Handguns study, the issue being examined was the effect of allowing law abiding citizens to carry concealed firearms on serious crime rates. The study found that when law abiding citizens were allowed to carry concealed firearms for defensive purposes, serious and violent crimes against people are reduced by between 2% and 10%. The study found that the crime rates decreased more in urban and large urban areas which are more densely populated, and decreased more in communities with large minority populations. The study also found there was no effect on accidental shootings by allowing law abiding citizens to carry concealed firearms.

18. In The Impact of Gun Laws on Police Deaths, the issue under study was the impact of allowing law abiding citizens to carry a concealed firearm for self defense on felonious police deaths. The statistically significant results of that study were that allowing law abiding citizens to carry a concealed firearm for self defense had no effect, to a slightly lower effect, on felonious police deaths.

19. Professor Mustard also looked at the Ohio laws that pertain to the issues, such as the laws that prohibit criminals, and persons with drug or alcohol problems from possessing firearms, and compared the laws in Ohio to the laws in the states that allow law abiding citizens to carry concealed firearms for self defense. Professor Mustard testified in his expert opinion, were the Court to strike down R.C. 2923.12 and R.C. 2923.16 as unconstitutional, and hence law abiding citizens were allowed to carry concealed firearms for self defense, the same results would probably occur in Ohio, in Hamilton County: a 2% to 10% reduction in serious crimes against persons would occur, with the net impact greater in the bigger cities and where there are large percentages of African-Americans, like in Cincinnati and Hamilton County; there would be no increase in accidental deaths due to shootings; and there would be no increase in felonious police deaths. Professor Mustard also testified that based on his research and study, citizens who are lawfully allowed to carry concealed firearms for their defense are one of the most law abiding groups in the populus.

20. Professor Mustard also pointed out numerous mistakes and errors by the witness offered by the defense, Franklin Zimring. Professor Mustard pointed to many factual errors and mistakes that served as the basis for Professor Zimring s opinions, such as Professor Zimring s statements of fact, that were contradicted by the published government statistics. Professor Zimring is not a statistician or an economist. Professor Zimring is a law professor at the University of California at Berkley. Professor Zimring acknowledged in his testimony that he has been associated with the no free lunch analysis that suggests that fairly substantial efforts to restrict general civilian availability to handguns would be necessary if one wanted to make large dents in the proportionate use of handguns and violence. He also testified that he has made the statement that the rate of gun-related violence would almost certainly increase if carrying loaded weapons became widespread. He acknowledged that at the time he made the statement, there was no study in existence that would support his position that increasing the carrying of loaded weapons would increase gun-related violence. Professor Zimring also testified that he published a critique of Professors Lott and Mustard s study Crime, Deterrence, and Right-to-Carry Concealed Handguns, but that prior to writing the critique, he did not request or review the data upon which the study was based. Although Professor Zimring testified that he did several studies on the impact of firearms on society, the studies are more than 30 years old. Professor Zimring testified that he had done no studies on the issue of the impact of shall issue concealed carry of firearms laws and their impact on police deaths, and he had done no statistical research or analysis from which he concluded that the passage of shall-issue concealed carry laws result in an increase in violent crime. Professor Zimring s testimony is also based on studies by authors such as Nagin, Black and Duggin, none of which were admitted into evidence, all of which are clearly hearsay, and may not be used as the basis for an opinion under Evid. R. 703. The testimony of Professor Zimring was clearly biased and based on an inadmissible foundation. The testimony of Professor Zimring was entitled to no weight and should be stricken from the record, based on the motion of the Plaintiffs made before the testimony was offered.

21. The following provisions of the Constitution of the State of Ohio are at issue in this case.

Article I, .1, of the Constitution of the State of Ohio, states as follows:
. 1 Right to freedom and protection of property.
All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.

Article I, . 2, of the Constitution of the State of Ohio, states as follows:
. 2 Right to alter, reform, or abolish government, and repeal special privileges.

All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.

Article I, . 4 of the Constitution of the State of Ohio, states as follows:
. 4 Bearing arms; standing armies; subordination of military power.

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 not be kept up; and the military shall be in strict subordination to the civil power.

Article I, . 16 of the Constitution of the State of Ohio, states as follows:

. 16 Redress in courts.
All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. [Suits against the state.] Suits may be brought against the state, in such courts and in such manner, as may be provided by law.

Article I, . 20 of the Constitution of the State of Ohio, states as follows:
. 20 Powers reserved to the people.

This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.

In State v. Williams (2000), Ohio St.3d 513, 728 N.E.2d 342, the Ohio Supreme Court considered whether Article I, .1, was self-executing or whether the language was so broad as to require enabling legislation to give it practical effect. The Supreme Court stated that Article I, .1: . . . requires other provisions of the Ohio Constitution or legislative definition to give it practical effect. Article I, .4, is a Constitutional definition of the right to keep and bear arms for defense and security that gives practical effect to the Article I, .1, provision that allows all men to defend life.

Article I, . 2, is the equal protection clause of the Ohio Constitution. Article I, . 16, is the due process clause of the Ohio Constitution. Direct Plumbing Supply Co. v. Dayton (1941) 138 Ohio St. 540, 38 N.E.2d 70. In State v. Robinette (1997), 80 Ohio St.3d 234, 238, 685 N.E.2d 762, the court stated that "where the provisions [of the federal and state constitutions] are similar" and where "no persuasive reason for a differing interpretation is presented," the court has interpreted the Ohio Constitution to be co-extensive with the Constitution of the United States. Direct Plumbing Supply Co. v. Dayton (1941) 138 Ohio St. 540, 38 N.E.2d 70. The due process and equal protection clauses of the Ohio Constitution are similar to the due process and equal protection clauses of the federal constitution.

However, where the clauses of the Ohio Constitution and the United States Constitution are materially different:

The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the Federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections [under state constitutions] to individuals and groups. Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163.

In so ruling, the Arnold court held that Article I, . 4 of the Constitution of the State of Ohio guaranteed a fundamental right of a citizen of Ohio to bear arms for their defense and security.

In Preterm Cleveland v. Voinovich (1993), 89 Ohio App.3d 684, 691, 627 N.E.2d 570, the court stated:
Section 1, Article I, Ohio Constitution, together with Section 2; Article I, Ohio Constitution (together originally contained in Section 1, Article VIII of the 1802 Ohio Constitution), make it quite clear that, under Ohio's Bill of Rights, every person has inalienable rights under natural law which cannot be unduly restricted by government, which is formed for the purpose of securing and protecting those rights, and that all governmental power depends upon the consent of the people. Thus, the Ohio constitutional provision is broader in that it appears to recognize so-called 'natural law,' which is not expressly recognized by the [federal] Bill of Rights or any other provision of the United States Constitution, although it is recognized in the Declaration of Independence. In that sense, [Section 1, Article I of] the Ohio Constitution confers greater rights than are conferred by the United States Constitution . . ..

Although the due process clause of the Ohio Constitution is essentially the same as the due process clause of the Fourteenth Amendment to the Constitution of the United States, Article I, .. 1, 2 and 4 provide greater protections to the people of this state than those afforded by the comparable provisions of the federal constitution.

Article I, . 20 makes the Ohio Constitution a document of delegated powers. State ex rel. A. Bently & Sons Co. v. Pierce (1917), 96 OS 44, 117 NE 6. The section expressly excludes from the legislative department the exercise of any power which is not delegated to it in the constitution. State ex rel. Robertson Realty Co. v. Guilbert (1906), 75 OS 1, 78 NE 931.

In construing these constitutional provisions, as they apply to the facts of this case, the language of the constitution must be given its usual and ordinary meaning. Cleveland Tel. Co. v. Cleveland (1918), 98 OS 358, 121 NE 701 .

22. Article I, . 4 of the Constitution of the State of Ohio allows citizens of Ohio to bear arms for their defense and security. According to the Merriam-Webster s On-Line Dictionary, defense means: the act or action of defending, a capability of resisting attack, or a means or method of protecting oneself. On the other hand, security means: the quality or state of being secure, freedom from fear or anxiety, something that secures: protection, such as measures taken to guard against crime. In common and everyday meaning, security is the preparation taken to protect oneself so that fear is reduced, while defense is the act of protecting oneself against that which caused the fear. The right of the people of Ohio to bear arms for their security and defense are two separate activities protected under the Ohio Constitution.

22. The statutes being challenged in this case are R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10, as they apply to private investigators ( the statutes ).

R.C. 2923.12, in relevant part, states:
. 2923.12 Carrying concealed weapons.
(A) No person shall knowingly carry or have, concealed on his or her person or concealed ready at hand, any deadly weapon or dangerous ordnance.

(B) This section does not apply to officers, agents, or employees of this or any other state or the United States, or to law enforcement officers, authorized to carry concealed weapons or dangerous ordnance, and acting within the scope of their duties.

( C) It is an affirmative defense to a charge under this section of carrying or having control of a weapon other than dangerous ordnance, that the actor was not otherwise prohibited by law from having the weapon, and that any of the following apply:

(1) The weapon was carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in or was going to or from the actor's lawful business or occupation, which business or occupation was of such character or was necessarily carried on in such manner or at such a time or place as to render the actor particularly susceptible to criminal attack, such as would justify a prudent person in going armed.

(2) The weapon was carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in a lawful activity and had reasonable cause to fear a criminal attack upon the actor or a member of the actor's family, or upon the actor's home, such as would justify a prudent person in going armed.

(3) The weapon was carried or kept ready at hand by the actor for any lawful purpose and while in the actor's own home.

(4) The weapon was being transported in a motor vehicle for any lawful purpose, and was not on the actor's person, and, if the weapon was a firearm, was carried in compliance with the applicable requirements of division ( C0 of section 2923.16 of the Revised Code.

R.C.2923.16, in relevant part, states:

. 2923.16 Improperly handling firearms in a motor vehicle.

(A) No person shall knowingly discharge a firearm while in or on a motor vehicle.

(B) No person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.

( C) No person shall knowingly transport or have a firearm in a motor vehicle, unless it is unloaded and is carried in one of the following ways:

(1) In a closed package, box, or case;
(2) In a compartment that can be reached only by leaving the vehicle;
(3) In plain sight and secured in a rack or holder made for the purpose;
(4) In plain sight with the action open or the weapon stripped, or, if the firearm is of a type on which the action will not stay open or which cannot easily be stripped, in plain sight.

(D)(1) This section does not apply to officers, agents, or employees of this or any other state or the United States, or to law enforcement officers, when authorized to carry or have loaded or accessible firearms in motor vehicles and acting within the scope of their duties.

(2) Division (A) of this section does not apply to a person if all of the following circumstances apply:

(a) The person discharges a firearm from a motor vehicle at a coyote or groundhog, the discharge is not during the deer gun hunting season as set by the chief of the division of wildlife of the department of natural resources, and the discharge at the coyote or groundhog, but for the operation of this section, is lawful.

(b) The motor vehicle from which the person discharges the firearm is on real property that is located in an unincorporated area of a township and that either is zoned for agriculture or is used for agriculture.

( c) The person owns the real property described in division (D)(2)(b) of this section, is the spouse or a child of another person who owns that real property, is a tenant of another person who owns that real property, or is the spouse or a child of a tenant of another person who owns that real property.

(d) The person does not discharge the firearm in any of the following manners:

(I) While under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse;

(ii) In the direction of a street, highway, or other public or private property used by the public for vehicular traffic or parking;

(iii) At or into an occupied structure that is a permanent or temporary habitation;

(iv) In the commission of any violation of law, including, but not limited to, a felony that includes, as an essential element, purposely or knowingly causing or attempting to cause the death of or physical harm to another and that was committed by discharging a firearm from a motor vehicle.

(3) Divisions (B) and ( C) of this section do not apply to a person if all of the following circumstances apply:

(a) At the time of the alleged violation of either of those divisions, the person is the operator of or a passenger in a motor vehicle.

(b) The motor vehicle is on real property that is located in an unincorporated area of a township and that either is zoned for agriculture or is used for agriculture.

( c) The person owns the real property described in division (D)(3)(b) of this section, is the spouse or a child of another person who owns that real property, is a tenant of another person who owns that real property, or is the spouse or a child of a tenant of another person who owns that real property.

(d) The person, prior to arriving at the real property described in division

(D)(3)(b) of this section, did not transport or possess a firearm in the motor vehicle in a manner prohibited by division (B) or ( C) of this section while the motor vehicle was being operated on a street, highway, or other public or private property used by the public for vehicular traffic or parking.

(E) The affirmative defenses contained in divisions ( C)(1) and (2) of section 2923.12 of the Revised Code are affirmative defenses to a charge under division (B) or ( C) of this section.

Certain provisions of R.C. 4749.06 and R.C. 4749.10 also are challenged in this case, but only to the extent that said provisions would prohibit a private investigator in the State of Ohio from carrying a concealed firearm. The issues relating to private investigators were tried by the parties and to the extent that any amendments to the pleadings are necessary to the resolution of these issues, said amendments are permitted and hereby granted.

23. Initially, it must be noted that R.C. 2923.12 and R.C. 2923.16 state that they do not apply to law enforcement officers who are authorized to carry concealed firearms, or possess loaded firearms in their vehicle, while acting within the scope of their duties. However, both sections also state that they do not apply to any state or federal agent or employee authorized to carry concealed firearms, or possess loaded firearms in their vehicle, while acting within the scope of their duties. In other words, any non-law enforcement state investigator, who might, for example, perform the same investigative work as that performed by Plaintiff Klein, who is allowed by an employer to carry a concealed firearm or allowed to transport a loaded firearm in a motor vehicle would be exempt from the enforcement of the law, while Plaintiff Klein would be subject to arrest. And, if the employer required the non-law enforcement state investigator to be available for recall so that said employee was always acting within the scope of their duties, as happens with police officers, the non-law enforcement state investigator would be permitted to carry a concealed firearm or transport a loaded firearm in a motor vehicle at their pleasure, while Plaintiff Klein would be subject to arrest. Although this issue was raised by the Plaintiffs in their briefs filed with the Court, the Defendants presented no reason or rationale to justify this clearly arbitrary, capricious and unreasonable distinction between virtually identical investigators. Clearly the fact of government employment does not make the life and safety of the non-law enforcement state investigator, or any government employee, any more valuable than the life and safety of Plaintiff Klein, or any person in this community.

24. To demonstrate standing, a party must allege and prove that he is within the class to whom the unconstitutional statute applies and that the alleged unconstitutional feature injures him. See Palazzi v. Estate of Gardner (1997), 32 Ohio St.3d 169, 174, 512 N.E.2d 971, 976; see also O Shea v. Littleton (1974), 414 U.S. 488, 494. These Plaintiffs need not wait to be criminally prosecuted under the statutes in question. See Doe v. Bolton (19XX), 410 US 179, 188; Planned Parenthood of Cent. Mo. v. Danforth (19XX), 428 US 52, 62; Womens Medical Professional Corp. v. Voinovich (1995), 911 F. Supp. 1051. The Plaintiffs, and indeed all law abiding citizens in Hamilton County, are, under the testimony, subject to being arrested at any time whether they carry a firearm concealed or unconcealed. The Plaintiffs have standing to challenge the facial validity of the statutes.

As to the Plaintiffs equal protection claims, Plaintiffs need only allege and prove that they were denied equal treatment and that they were willing to engage in the prohibited activity. See N.E. Florida Contractors v. Jacksonville (1993), 508 US 656, 666. As the preceding numbered paragraph demonstrates, the Plaintiffs were denied equal treatment under the statutes and they have carried the firearms that would subject them to arrest. The Plaintiffs have standing to challenge the statutes on equal protection grounds.

25. A declaratory judgment is also an appropriate vehicle for the Plaintiffs to challenge the constitutionality of R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators. Peltz v.. South Euclid (1967), 11 Ohio St. 2d 128, 44 O.O. 2d 129, held, in its syllabus 1:

Where a municipal ordinance imposing criminal penalties upon a contemplated act will be enforced against a person if he proceeds with that act, such person has standing to test the validity, construction and application of such ordinance by an action for declaratory judgment, and it is unnecessary to demonstrate the existence of an actual controversy for such a person to incur a violation of the ordinance. (Section 2721.03, Revised Code.) (Wilson v. Cincinnati, 171 Ohio St. 104 [12 O.O. 2d 129], approved and followed.)"

There is no requirement that the Plaintiffs be arrested for a violation of the statutes in order to challenge their constitutionality. The Plaintiffs have the requisite standing to assert their challenge to the constitutionality of the statutes under the declaratory judgment statutes, R.C. 2721.02 and R.C. 2721.03.

26. The law that is required to be applied in a case concerning a challenge to the validity of legislation enacted under the State of Ohio s police power was clearly explained in 1999 Ohio App. LEXIS 217 State v. Williams (1999). Although the Williams decision was reversed on appeal, State v. Williams (2000), Ohio St.3d 513, 728 N.E.2d 342, the basis for the analysis of a constitutional enactment was not questioned by the Supreme Court. The appellate court provided a more thorough explanation of the law that applies to an analysis of the statute, but the Supreme Court applied the analysis to reach a contrary conclusion concerning the constitutionality of the statute at issue. The Williams case examined the constitutionality of Megan s Law. In the appellate court, although the court found a real and substantial relation to public safety in the enactment of Megan s Law concerning repeat sexual offenders, the court pointed out that that did not end the analysis. In the appellate Williams case, in footnote 1, the court explained the police powers and the limitations on the enactment of police power criminal statutes:

Pursuant to its police powers, the General Assembly has the authority to enact laws defining criminal conduct and to prescribe its punishment." State v. Thompkins (1996), 75 Ohio St.3d 558, 560, 664 N.E.2d 926. See, also, State v. Meyer (1955), 163 Ohio St. 279, 287, 126 N.E.2d 585 (criminal laws are enacted pursuant to police powers because "the object of a criminal penalty is to punish the accused, deter others from crime, and to protect the public."). Therefore, Section 1, Article I of the Ohio Constitution also operates as a limitation of the General Assembly's power to create and define criminal offenses. See Morgan v. Nolte (1881), 37 Ohio St. 23, paragraph one of the syllabus. Thus, the precedents in the civil police power cases are applicable in criminal police power cases.

The Morgan, case, in syllabus 1, cited in the footnote, stated, [t]he only limitations to the creation of offenses by the general assembly are the guaranties contained in the bill of rights. In other words, the State may enact police power criminal statutes, such as R.C. 2923.12 and R.C. 2923.16, but the power to do so is limited by the guarantees contained in the bill of rights to the Ohio Constitution. The test of criminal statutes was described in Williams:

In Benjamin v. Columbus (1957), 167 Ohio St. 103, 146 N.E.2d 854, paragraph five of the syllabus, the Supreme Court articulated principles established by its precedents interpreting Ohio's Constitution and set forth a two-part test for the validity of police power legislation: "Although almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and protection of property, within the meaning of Section 1 of Article I of the Ohio Constitution, or involve an injury to a person within the meaning of Section 16 of Article I of the [Ohio] Constitution, ***, an exercise of the police power having such an effect will be valid if [1] it bears a real and substantial relation to the public health, safety, morals, or general welfare of the public and if [2] it is not unreasonable or arbitrary."

Williams then explained that the finding of a real and substantial relation to public safety did not end the analysis of the constitutionality of the statute:

The Cook opinion did not, however, address the second prong of the Benjamin test. That portion of the test is not mere dicta. In fact, the Supreme Court has a long and distinguished history of invalidating legislation on the ground that, although it may arguably bear some rational relationship to the public health, safety, morals, or the general welfare, the enactment encroached too far onto the civil liberties of those it governed. See, e.g., Sipe v. Murphy (1892), 49 Ohio St. 536, 31 N.E. 884 (invalidating an ordinance regulating auctioneers of foreign jewelry because "its passage was not a reasonable exercise of the police power") [FN2]; Mirick v. Gims (1908), 79 Ohio St. 174, 86 N.E. 880 (invalidating a property tax levied on the number of dogs kept on the property even if the owner of the property does not know the dogs are there, as where they are kept by a tenant, because "To us [the tax] seems to be inequitable, arbitrary and unreasonable, unnecessarily infringing upon the natural and inalienable rights of citizens, and therefore void.") [FN3]; State v. Boone (1911), 84 Ohio St. 346, 95 N.E. 924 (holding that, although a statute requiring midwives and physicians attending births to collect information useful to the Bureau of Statistics "[bore] some relation to the public welfare," the law was nevertheless invalid because "it is within the judicial power to declare void an unnecessary and unreasonable exercise of police power."); In the Matter of: Steube (1914), 91 Ohio St. 135, 110 N.E. 250 (invalidating a statute requiring the sale of certain food stuffs to be by whole avoirdupois weight, even where the parties have openly agreed on a fractional weight, on the ground that "this act places an unreasonable and burdensome obligation upon persons engaged in a lawful business and is an unwarranted exercise of the police power.") [FN4]; East Fairfield Coal Co. v. Booth (1957), 166 Ohio St. 379, 143 N.E.2d 309 (agreeing with the lower courts that a zoning ordinance flatly prohibiting strip mining in an agricultural district was "unreasonable and arbitrary") [FN5]; Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 503 N.E.2d 717 (invalidating a statute providing an absolute four-year statute of repose on medical malpractice claims held by children on the independent ground that it was unreasonable and "patently arbitrary."); Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 514 N.E.2d 709 (invalidating the same four-year statute of repose at issue in Mominee as applied to adults who discovered their cause of action within the four years but who were left with less than a year to file suit because, "although it may be stated that this severance of rights might conceivably bear 'a real and substantial relation to the *** general welfare of the public'" by reducing tort litigation, "the means of achieving [that end] are unreasonable and arbitrary."); Burgess v. Eli Lilly & Co. (1993), 66 Ohio St.3d 59, 609 N.E.2d 140 (holding that, although a statute of limitations for DES claims that ran from the date of injury irrespective of when the plaintiff discovered his malady bore some relationship to the legitimate goal reducing tort litigation, the statute was nevertheless invalid because it "unreasonably and arbitrarily limits the rights of DES victims."). In the third paragraph of the syllabus of the seminal case of Froelich v. Cleveland (1919), 99 Ohio St. 376, 124 N.E. 212, the Supreme Court stated that police power legislation is "unreasonable" in the constitutional sense if it "interfere[s] with private rights beyond the necessities of the situation" or if it is "unduly oppressive upon individuals." The court used the Froelich definition in Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540, 38 N.E.2d 70, to invalidate the infamous "sticker ordinance." The Dayton City Council used its police powers to enact an ordinance that required purchasers of plumbing fixtures to disclose their names, addresses, and the addresses of the residence at which the proposed installation is to take place; that required the sellers of the fixtures to make weekly reports of that information to the city plumbing inspector; and that required all fixtures sold bear the inspector's sticker of approval. The court held that, although it bore some marginal relation to the legitimate goal of enforcing other plumbing regulations, "the burdens of the [sticker] ordinance are unduly oppressive upon individuals and interfere with the rights of private property and freedom of contract beyond the necessities of the situation." Id. at 549.

The Defendants in this case argued that firearms can pose a danger to police or citizens. That is certainly possible. However, that does not end the analysis. The Supreme Court has directed that even though there may be a real and substantial relation between the statute and public safety, the statute is unconstitutional if it is arbitrary or unreasonable.

There has been no prior authoritative case that has examined the interplay of issues raised in this case. R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, are hereby declared to be unconstitutional on their face for the following reasons:

A. Article I, . 1 of the Constitution of the State of Ohio, gives every citizen the constitutional right to defend oneself from violent attack. Article I, . 4 of the Constitution of the State of Ohio, gives every citizen the fundamental constitutional right to bear a firearm for their defense and security. Article I, . 20 of the Constitution of the State of Ohio, provides that the enumeration of rights in the Constitution does not impair or deny other rights retained by the citizens and that all rights not specifically delegated to the government are retained by the citizens. The Constitutions of the states of Colorado, Idaho, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, North Carolina, and Oklahoma contain a constitutional right to bear arms, but specifically allow the legislature to enact laws to regulate the carrying of concealed weapons. If the Founding Fathers of the State of Ohio had intended to allow the General Assembly to regulate the carrying of concealed firearms, it is obvious that such a provision would have been clearly stated in the Ohio Constitution. In the absence of such a delegated right to the legislature, the right of citizens to carry concealed weapons is a clear constitutional right. As a result, R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, which deny to law abiding citizens the right to carry a firearm for their defense and security are unreasonable and arbitrary.

B. Citizens have a fundamental constitutional right to bear a firearm for their defense and security. Defense and security are two different concepts. Although the concept of defense may be adequately served by carrying an exposed firearm, it is clear that the fundamental constitutional right to bear a firearm for security cannot be served by the carrying of an unconcealed firearm. Therefore, it is a finding of the Court that citizens of the state of Ohio have a fundamental constitutional right to carry a concealed firearm for their security which right is protected by Article I, . 4 of the Constitution of the State of Ohio. As a result, R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, which deny to law abiding citizens the right to carry a concealed firearm for their security are unreasonable and arbitrary as a denial of said constitutional right.

C. As pointed out in paragraph 23 of this findings of fact and conclusions of law, R.C. 2923.12 and 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, are arbitrary and unreasonable in allowing any State of Ohio employee who has permission from their supervisor to carry a concealed firearm or transport a loaded firearm in their motor vehicle, while not granting that same right to similarly situated law abiding citizens.

The case of Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163, must also be noted. Arnold followed precedent from, inter alia, the Benjamin v. Columbus case in holding that the test set out in Benjamin was required to be used in evaluating a statute affecting the police power. In the dissent in Arnold, Judge Hoffman, sitting by designation, criticized the diversion from firm constitutional precedents created by the Court in dealing with legislation that impaired a fundamental constitutional right. In Arnold, although the Court found that the right to bear arms was, under the Ohio Constitution, a personal, fundamental right, the Court allowed a lesser standard of review from Benjamin to apply. Judge Hoffman stated:

Under the strict scrutiny analysis, a law which impinges upon a fundamental right is presumptively unconstitutional unless a compelling governmental interest justifies it. Skinner v. Oklahoma ex rel. Williamson (1942), 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; San Antonio Indep. School Dist. v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16.

However, the Court in Arnold followed Benjamin, and not other compelling constitutional precedents that required strict scrutiny, even though Benjamin did not involve a statute abridging a fundamental constitutional right, and Arnold did involve a statute abridging a fundamental constitutional right.

Where a fundamental constitutional right is impaired, strict scrutiny is the test. In such a case, the statute is unconstitutional unless the government establishes a compelling state interest for the enactment. Here, there was no compelling state interest offered by the Defendants, nor is there any compelling state interest apparent. For that reason, R.C. 2923.12 and 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, would be found to be unconstitutional by this Court for that reason also, but for the requirement of this Court to follow Benjamin and Arnold.

27. The testimony in this case was clear, compelling, and convincing. Therefore, the Court also finds R.C. 2923.12 and 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, unconstitutional as applied to the Plaintiffs and to all law abiding citizens within Hamilton County for the following reasons:

A. The testimony of Professor Mustard was credible, competent and compelling. Allowing the Plaintiffs and law abiding citizens in Hamilton County to carry concealed firearms will reduce violent crime, will not result in accidental deaths and will not increase felonious police deaths. There was no competent or credible evidence to the contrary. As a result, R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, which deny to law abiding citizens the right to carry a concealed or unconcealed firearm for their defense and security are unreasonable and arbitrary.

B. The testimony was clear, any law abiding citizen who carries a firearm, whether concealed or unconcealed, will be arrested in Hamilton County, unless they happen to be stopped by the OSHP. Article I, . 4 of the Constitution of the State of Ohio, recognizes the right of a law abiding citizen to carry a firearm for defense and security. As a result, R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, which deny to law abiding citizens the right to carry a firearm for their defense and security without arrest are unreasonable and arbitrary as a denial of said constitutional right.

C. The testimony from the Defendants, particularly Major Allen and Hamilton County Deputy Sheriff Luke, made it clear that the enforcement of R.C. 2923.12 and R.C. 2923.16 are arbitrary. As a result, R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, which deny to law abiding citizens the right to carry a firearm for their security without fear of arbitrary arrest are unreasonable and arbitrary.

In Arnold, supra, the Supreme Court stated: [c]learly, the city would have exceeded its authority under Section 3, Article XVIII, and would have violated Section 4, Article I if it had banned all firearms. In this case, the evidence is clear that the enforcement of R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, in relation to the carrying of concealed firearms, in conjunction with the enforcement of criminal laws to prohibit the carrying of unconcealed firearms, amount to a complete ban on all firearms. The Defendants have attempted to claim that citizens can carry an unconcealed firearm without arrest. If that is so, why do private investigators and security guards required to obtain a license to carry an unconcealed firearm? Obviously, without the license, the private investigators and security guards would be subject at any moment for carrying the unconcealed firearm. However, private citizens cannot get the needed license to avoid arrest. For that reason, also, R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, are unconstitutional.

28. The equal protection guarantee of the Ohio Constitution set forth in Article I, .2, requires that all similarly situated individuals be treated in a similar manner. State ex rel. Doersam v. Indus. Comm. (1989), 45 Ohio St.3d 115, 119, 543 N.E.2d 1169, 1173. If a classification disadvantages a suspect class or impinges upon a fundamental right, the action is subject to judicial strict scrutiny. Plyler v. Doe, 457 U.S. 202, 216-217 (1982). Here, a fundamental right is involved. under Article I, .4. As pointed out above, this case involves unequal treatment in 2 areas. First, in allowing all governmental employees to carry a concealed firearm or a loaded firearm in their motor vehicle with the permission of their superior. Second, in the arbitrary enforcement of R.C. 2923.12 and R.C. 2923.16 such that if you are stopped in Hamilton County by any law enforcement agency other than OSHP, you will be arrested, but if stopped by OSHP, you have a great probability of being released, whether you can properly assert a statutory affirmative defense or not. The Defendants have not presented any compelling governmental interest for the unequal treatment under either of the 2 concerns. Therefore, the Court finds R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, unconstitutional as a deprivation of the equal protection interests of the Plaintiffs and all other law abiding citizens within Hamilton County.

29. Likewise, under the principles of due process, governmental action which limits the exercise of fundamental constitutional rights is subject to the highest level of judicial scrutiny. See, e.g., Natl. Assn. for Advancement of Colored People v. Alabama ex rel. Patterson (1958), 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. Under the strict scrutiny standard for reviewing legislation which restricts the exercise of fundamental rights, a statute will be considered unconstitutional unless it is shown to be necessary to promote a compelling governmental interest. See Shapiro v. Thompson (1969), 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600, 615; and Primes v. Tyler (1975), 43 Ohio St.2d 195, 198-199, 72 O.O.2d 112, 114, 331 N.E.2d 723, 726.

The due process clause mandates that statutes governing conduct "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson (1983), 461 U.S. 352, 357, 103 S.Ct. 1855, 1858. In order for R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, to survive a void for vagueness challenge, the statutes must be written so that a person of common intelligence is able to determine what conduct is prohibited, and the statute must provide sufficient standards to prevent arbitrary or discriminatory enforcement. State v. Williams (2000), 88 Ohio St.3d 513, 532.

As pointed out in paragraph 28, the statutes are enforced in an arbitrary and discriminatory manner, and, therefore, are violative of due process. Additionally, Lt. Col. Janke of the Cincinnati Police, testified that law enforcement officers who stop a suspect and find them in possession of a loaded firearm must conduct an investigation to determine whether any affirmative defense applies before an arrest can be made. However, Lt. Col. Janke, who has over 20 years of experience in law enforcement, testified that he could not determine whether the Plaintiffs could lawfully carry a concealed firearm without fear of arrest and that he would have to contact an attorney or prosecutor to make that determination. Any statute that is so difficult to understand that the most senior members of a law enforcement agency can t determine whether there is a violation of law with an opinion by legal counsel is devoid of any standard that a reasonable person could be expected to understand and, hence, void for vagueness.

The Defendants have produced no compelling governmental interest that would justify the statutes and they are, therefore, unconstitutional as a violation of due process. To say that one has a fundamental right to go armed for one s defense and security, and then to say that one must justify exercising that fundamental right by proving an affirmative defense during a felony trial, illustrates a misuse of the criminal law that is unique and unprecedented. To further compound this mistreatment of innocent citizens, the State refuses to provide a method for the citizen to predetermine his right to carry a firearm without being subjected to the affirmative defense trial. And since a violation of R.C. 2923.12 is a felony of violence, if the citizen misjudges the law, or is has a trier of fact who disagrees with his definition or reasonableness, he is forever barred from possessing a firearm, the very fundamental right he sought to exercise. No other fundamental right is treated in this manner. And no other state has a similar statutory structure. Of the states that do not allow a predetermination of the right to carry a concealed weapon by the issuance of a permit, only Nebraska has affirmative defenses. But in Nebraska, the state has the burden of proving that the affirmative defense is untrue. The effect is enormous. A review of appellate cases in Ohio on what comprises an affirmative defense leads to one conclusion: no one can be sure if he fits within it; no one can be sure what the trier of fact will say; no one can be sure what the appellate court will say; and there is a huge amount of waste and unwarranted suffering imposed on the law abiding citizens of this state who attempt to exercise this fundamental right.

Unlike nearly every other criminal violation, an innocent person has no adequate remedy at law if he is arrested, charged, strip searched, and tried as a felon for carrying a concealed firearm. This is because when a private citizen is found in possession of a concealed firearm, there is probable cause to arrest. If there is probable cause to arrest, the arresting officer has immunity from civil damages. The only exception is where the arresting officer knows of his own independent knowledge that the person has a legitimate affirmative defense. Since the vast majority of people are arrested by officers who are neither friends nor acquaintances, they are faced with the law as stated in Weible v. Akron, App. No. 14878, Summit Co., May 8, 1991:

As there is no dispute that appellant was carrying a gun inside her purse at the time of the stop, it is clear that there was probable cause to charge her with carrying a concealed weapon, as well as a lawful arrest on this charge. Finally, appellant's claim that she was justified in carrying a weapon for purposes of self-defense had no bearing on the question of whether there was probable cause for arrest and prosecution. A police officer is not required to weigh and evaluate the truth of alleged affirmative defenses to a crime before he may act upon probable cause to arrest and charge a defendant. Id. at 7.

31. The Defendants have cited and argued State v. Nieto (1920), 121 Ohio St. 280, 130 N.E. 663 for the proposition that this statutory scheme does not violate the Ohio Constitution. While Nieto did state the former carrying concealed weapon statute did not prohibit the bearing of firearms, merely their concealment, that is not the case presented here. First, the statutory scheme today is substantially different from that presented in Nieto. Secondly, as shown above, and as Detective Luke freely admitted., there is no way to exercise one s rights under Article I, .4 in Hamilton County without getting arrested. Furthermore, Nieto did not address any of the other issues presented here. Furthermore, the concepts of due process and equal protection have changed substantially since 1920. Finally, the actual holding of Nieto was that being in one s own home is not a defense to carrying a concealed weapon. That holding was specifically overruled by the Ohio Legislature. Nieto stands for the proposition that the legislature may place reasonable restrictions on the use of firearms. These are not reasonable restrictions. Therefore, I hold that Nieto does not prohibit any of the legal conclusions made here today.

CONCLUSION

Amidst all the baying from gun opponents is the irrefutable fact that there will always be people in our society who refuse to follow any rules and who can never be reasoned with or rehabilitated. These people have no conscience and no qualms about doing harm to innocent persons.

As a consequence, every law-abiding citizen of this state has the right to protect him or herself with a concealed firearm.

There is no doubt, that the very thought, a potential victim might posess a firearm, deters that element of our society that cares nothing about laws or human life but rather understands only one thing - brute force.

Based on the foregoing, the Court declares R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, facially unconstitutional and unconstitutional as applied, for the reasons set forth above.

The Court hereby finds that the Plaintiffs and the law-abiding citizens while within Hamilton County, Ohio, have suffered immediate, irreparable harm for which there is no adequate remedy at law, and that in balancing the interest of the partiesm particularly considering the testimony of Professor Mustard as set out above, the harm to the Plaintiffs greatly outweighs any speculative harm to the Defendants and, thereforem the Court hereby grants the Plantiffs request for a permanent injunction against the enforcement of R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, as said statutes apply to the Plaintiffs and all other law-abiding citizens while within Hamilton County, Ohio.

The Court has also also considered the separate, personal factual circumstances of Plaintiffs Klein, Feely and Cohen as revealed in their testimony, and the other testimony presented in the trial of this matter. Plaintiffs Charles H. Klein, Jr., Patrick Feely and James Cohen have suffered immediate, irreparable harm for which there is no adequate remedy at law, and in balancing the interests of the parties, particularly considering the testimony of Professor Mustard as set out above, the harm to the Plaintiffs Klein, Feely and Cohen greatly outweighs any speculative harm to the Defendants and, therefore, the Court hereby separately grants the Plaintiff Charles H. Klein, Jr. s, Plaintiff Patrick Feely s and Plaintiff James Cohen s request for a permanent injunction against the enforcement of R.C. 2923.12 and R.C. 2923.16, as well as the relevant portions of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators, as said statutes apply to the Plaintiffs Klein, Feely and Cohen.

IT IS SO ORDERED ____________________________________________
Robert P. Ruehlmanhlam, Judge
Court of Common Pleas

Dated: 1-10-02

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CONTACTS

Second Amendment Foundation: Alan Gottlieb, (mailto:  Alan Gottlieb) (425) 454-7012 www.saf.org

William Gustavson, Plaintiff's Attorney: (513) 621-4477, mail to:  William Gustavson

Tim Smith, Plaintiff's attorney: (513) 421-1890 mail to:  Tim Smith

Chuck Klein, Lead plaintiff: mail to:  Chuck Klein
 
Ohioans For Concealed Carry: www.ohioccw.org

PEOPLES RIGHTS ORGANIZATION: The most active gun rights organization in Ohio.  http://www.peoplesrights.org/ 

 

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DECISION OF THE APPEALS COURT

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF
OHIO


HAMILTON COUNTY, OHIO

 

CHUCK KLEIN, ET AL.,

Plaintiffs-Appellees,
vs.

SIMON L. LEIS, JR., SHERIFF,
ET AL., Defendants-Appellants.

: APPEAL NOS. C-020012 C-020013 C-020015 C-020021
TRIAL NOS. A-0004340 A-0107121

O P I N I O N.

OHIO FIRST DISTRICT COURT OF APPEALS

10 April 2002

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.

1 See R.C. 2923.16(E)

2

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.

3

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.

4

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 ordinances— 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 lawabiding 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.

5

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.

2 See R.C. 2721.03; Burger Brewing Co. v. Ohio Liquor Control Comm. (1973), 34 Ohio St.2d 93, 296 N.E.2d 641, paragraph one of the syllabus, citing American Life & Accident Ins. Co. v. Jones (1949), 152 Ohio St. 287, 89 N.E.2d 301, paragraph two of the syllabus; R.A.S. Entertainment, Inc. v. Cleveland (1998), 130 Ohio App.3d 125, 128, 719 N.E.2d 641, 643.

3 See Pack v. Cleveland (1982), 1 Ohio St.3d 129, 131, 438 N.E.2d 434, 437, citing Peltz v. South Euclid (1967), 11 Ohio St.2d 128, 228 N.E.2d 320, paragraph one of the syllabus; Jukelson v. Hunter (1969), 22 Ohio App.2d 182, 186, 259 N.E.2d 749, 751-752.

6

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 by the 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.”7 We 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

4 See Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 43, 616 N.E.2d 163, 169 (emphasis in original), citing State v. Hogan (1900), 63 Ohio St. 202, 218-219, 58 N.E. 572, 575.

5 See Arnold at 43, 616 N.E.2d at 169-170.

6 See Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 423, 633 N.E.2d 504, 511, citing Shapiro v. Thompson (1969), 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, and Primes v. Tyler (1975), 43 Ohio St.2d 195, 198-199, 331 N.E.2d 723, 726.

7 Id., at fn. 12.

8 Id. at 53, 616 N.E.2d 163, 176 (Hoffman, J., dissenting.)

7

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 panic11 or for disorderly conduct.12 Further, we believe that State v. Arnold has superceded Nieto.

9 See State v. Nieto (1920), 101 Ohio St. 409, 412, 130 N.E. 663, 664, quoting G.C. 12819.

10 Id. at 413, 130 N.E.2d at 664.

11 See R.C. 2917.31.

12 See R.C. 2917.11.

8

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.

9

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

13 See R.C. 2923.12(C)(1).

14 See R.C. 2923.12(C)(2),

15 See R.C. 2923.12(C)(3).

10

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

16 See R.C. 2923.16(B).

17 See R.C. 2923.16(E).

18 See Perez v. Cleveland (1997), 78 Ohio St.3d 376, 378, 678 N.E.2d 537, 539-540, quoting Grayned v. Rockford (1972), 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299.

11

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 publicpolicy matters. When the police, the citizens, and the courts all must guess at the meaning of a criminal statute, subjective and arbitrary enforcement results.

19 Id.

20 See State v. Williams (2000), 88 Ohio St.3d 513, 532, 728 N.E.2d 342, 360-361, citing Chicago v. Morales (1999), 527 U.S. 41, 56-57, 119 S.Ct. 1849, 1859, and State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354, 358, 588 N.E.2d 116, 120.

21 See State v. Doss (1996), 111 Ohio App.3d 63, 74-75, 675 N.E.2d 854, 861, citing State v. Assad (1992), 83 Ohio App.3d 114, 614 N.E.2d 772; State v. Orin (1992), 84 Ohio App.3d 812, 818-821, 619 N.E.2d 14, 18-20 (Grey, J., concurring); State v. Westfall (Oct. 4, 2000), Summit App. No. 19599, unreported; State v. Foltz (June 28, 1999), Fairfield App. No. 98CA58, unreported; State v. Hmidan (May 7, 1999), Montgomery App. No. 17161, unreported; State v. Timony (Oct. 7, 1998), Summit App. No. 18891, unreported; State v. Penwell (Oct. 18, 1994), Franklin App. No. 94APA04-552, unreported.

12

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

22 For facts underlying the bias allegation, see the following: http://enquirer.com/editions/2002/01/04/loc_citys_request_that.html; http://www.cincypost.com/2002/jan/03/judge010302.html

23 See Goddard v. Children’s Hosp. Med. Ctr. (2000), 141 Ohio App.3d 467, 473, 751 N.E.2d 1062, 1066, citing Beer v. Griffith (1978), 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775, 776.

13

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.

14

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.”

15

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.

24 See State v. Jones (2000), 90 Ohio St.3d 403, 414, 739 N.E.2d 300, 314, citing State v. Awkal (1996), 76 Ohio St.3d 324, 331, 667 N.E.2d 960, 968.

25 See Tracy v. Merrell-Dow Pharmaceutical, Inc. (1991), 58 Ohio St.3d 147, 152, 569 N.E.2d 875, 880.

26 See Kokita v. Ford Motor Co. (1995), 73 Ohio St.3d 89, 92, 652 N.E.2d 671, 674, citing State v. Thomas (1982), 70 Ohio St.2d 79, 434 N.E.2d 1356; Vetter v. Hampton (1978), 54 Ohio St.2d 227, 230, 375 N.E.2d 804, 806; Clark v. Clark (Sept. 1, 1998), Franklin App. No. 97APF10-1360, unreported.

27 See McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d 77, 82, 228 N.E.2d 304, 308; Bailey v. Emilio C. Chu, M.D., Inc. (1992), 80 Ohio App.3d 627, 635, 610 N.E.2d 531, 536. 

16

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. 28 See Civ.R. 65(D).

17

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. 29 R.C. 2721.12

18

DOAN and HILDEBRANDT, JJ., concur. Please Note: The court has recorded its own entry on the date of the release of this Decision. 

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SUPREME COURT BRIEF

 

IN THE SUPREME COURT OF OHIO

CHUCK KLEIN, et al.,

Appellees,
Case No. 02-0585

vs.

SIMON LEIS, SHERIFF, HAMILTON COUNTY, et al.,

Appellants
Court of Appeals Case Nos.
C-020012, C-020013, C-020015, C-020021
 

MERIT BRIEF OF APPELLEES

William M. Gustavson #0016674
Counsel for Appellees

Timothy Smith #0032087
Counsel for Appellees

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I. STATEMENT OF FACTS.

A. Introduction.

The trial court issued extensive findings of fact and conclusions of law. (Supp. 140-173). The Findings of Fact and Conclusions of Law were determined by the trial court to be clear and convincing and beyond a reasonable doubt. (Supp. 140). Each of the facts found by the trial court has a virtually verbatim recitation in the transcript of proceedings and record below. Those facts, as contained in the Findings of Fact and Conclusions of Law, are set forth below. (Supp. 141-152). Those facts as found by the trial court in the Findings of Fact are the facts upon which this appeal is based. Claims by the City Appellants, or other Appellants, of the importance of the testimony of Franklin Zimring are irrelevant. Franklin Zimring s testimony was discounted and rejected by the trial court and may not be used as a basis for decision in this court. Supp. 151-152. The facts that govern this appeal, as found by the trial court in its Findings of Fact, are set forth below.

B. Factual Recitation From the Trial Court s Findings of Fact. Appellee James Howard Cohen is 59 years old and the owner of Capri Pizza. He has been in the business for over 20 years. (T.p. 238, Supp. 56). Capri Pizza is a retail pizza store, and a wholesale food business that sells to canteen type trucks that sell the end product at sites around the city. (T.p. 239, Supp. 57). Mr. Cohen works in the business with his wife. (T.p. 239, Supp. 57). They start their day at approximately 2:30 a.m. Mr. Cohen delivers the food to the canteen trucks at certain spots each day at the same time each day. (T.p. 239-241, Supp. 57-59). In selling the food, Mr. Cohen maintains large amounts of cash. (T.p. 242, Supp. 59). All of his deliveries are in the dark and some of them are in high crime areas of the city. (T.p. 242, Supp. 59). Within the last several years, Capri Pizza was the victim of a robbery while Mr. Cohen was in the store. (T.p. 243, Supp. 60). As the robber fled, he fired a shot from a gun. In court, the robber threatened to kill Mr. Cohen if he ever got out of prison. (T.p. 243-245, Supp. 60-62). On another occasion, a person jumped in his car when he stopped at an intersection. (T.p. 247, Supp. 64). He has had a kidney and his colon removed over the last several years and is physically unable to defend himself without a firearm. (T.p. 245, Supp. 62). Mr. Cohen has received firearms training. (T.p. 246-247, Supp. 63-64). Mr. Cohen has a need to carry a firearm to defend himself in his business and while making deliveries in his motor vehicle and, therefore, he carries a concealed firearm when he believes it is necessary to defend himself and his wife in his business. (T.p. 248, Supp. 65). Mr. Cohen believes that if found in possession of a concealed firearm that he would be arrested like his former employee, Appellee Pat Feely. (T.p. 248, Supp. 65). Mr. Cohen is a law-abiding citizen who has never been arrested or charged with a criminal offense and he is not otherwise prohibited from possessing a firearm by any section of state or federal law. (T.p. 248, Supp. 65).

Appellee Patrick Joseph Feely is self-employed in the business of driving a food truck around to various factories in the Cincinnati area. (T.p. 266, Supp. 66). In the past, Mr. Feely worked for Appellee Cohen at Capri Pizza. (T.p. 267, Supp. 67). Mr. Feely primarily drove a delivery truck to the canteen drivers to deliver to them Capri Pizza products. (T.p. 267, Supp. 67). Mr. Feely worked for Mr. Cohen for over 10 years. (T.p. 267, Supp. 67). After a robbery at the Capri Pizza restaurant at gunpoint and the attempted robbery of a delivery person, Mr. Feely began to consider carrying a concealed firearm for his defense. Supp. 68. Mr. Feely has received firearms training. He consulted with lawyers and others about his right to carry a concealed firearm since there is no permit system in Ohio to allow law-abiding citizens to carry a concealed firearm. (T.p. 268, Supp. 68-69). As a result of those conversations, Mr. Feely began to carry a concealed firearm while making deliveries. (T.p. 269, Supp. 69). In September of 1999, Mr. Feely was stopped while working by a Fairfax police officer because of expired license plates on his employer s van. (T.p. 269-270, Supp. 69-70). The officer asked Mr. Feely if he was carrying a firearm and Mr. Feely admitted that he was. (T.p. 270, Supp. 70). Mr. Feely was arrested and transported to the Justice Center. (T.p. 270, Supp. 70). Mr. Feely was handcuffed, had his picture taken, was booked and strip searched. (T.p. 270-271, Supp. 70-71). He was required to post a bond to be released. (T.p. 271, Supp. 71). Although Mr. Feely explained to the arresting officer his reasons for carrying the concealed firearm, the officer did not release him (T.p. 271-272, Supp. 71-72); although Mr. Feely s lawyer explained to the prosecutor Mr. Feely s reasons for carrying a concealed firearm, the prosecutor still prosecuted him. (T.p. 273, Supp. 73). Mr. Feely was indicted and charged with a felony carrying a maximum sentence of one and a half years in the penitentiary. (T.p. 273, Supp. 73). Mr. Feely was found not guilty at the trial. (T.p. 274, Supp. 74). Although found not guilty on that occasion, Mr. Feely has a logical fear that he will again be arrested, strip searched, forced to hire a lawyer and defend himself against felony charges if found in possession of a firearm. (T.p. 274-275, Supp. 74-75). Appellee Feely is a law-abiding citizen who is not otherwise prohibited from possessing a firearm by any section of state or federal law. (T.p. 275-276, Supp. 75-76).

Appellee Chuck Klein is a licensed private investigator and freelance writer. (T.p. 196, Supp. 35). Mr. Klein has experience as a certified police officer and has worked in law enforcement in Ohio and Indiana. (T.p. 197, Supp. 36). In Indiana, he was licensed to carry a concealed firearm. (T.p. 197, Supp. 36). He currently possesses a Florida permit to carry a concealed firearm, which is recognized in neighboring states. (T.p. 198, Supp. 37). He possesses a federal firearms license, which he uses to receive firearms for evaluation for mgazine articles. (T.p. 198, Supp. 37). Mr. Klein has numerous publications in magazines and books concerning frearms, defensive shooting and the rights of gun owners. (T.p. 198-200, Supp. 37-39). He is an NRA certified instructor in, among other things, firearms and self-defense. (.p. 200-201, Supp. 39-40). Mr. Klein has carried or had close at hand a firearm for most of his adult life. (T.p. 201, Supp. 40).

Mr. Klein has been threatened with arrest for carrying a concealed firearm as recently as approximately 6 months before his testimony at trial when he contacted the Police Chief of Amberly Village, a Defendant in this case, and discussed issues relating to protection of synagogues from fire bomb attacks. (T.p. 201, Supp. 40). Mr. Klein lives near Over-the- Rhine, a high crime area of Cincinnati, and regularly walks there for business and pleasure. (T.p. 204, Supp. 41). Mr. Klein has been accosted and assaulted in Over-the-Rhine, threatened with bodily harm and followed and shadowed. (T.p. 204-206, Supp. 41-43). Mr. Klein has used the display of a firearm to stop a deadly attack on himself while acting as a private investigator in Indiana and to deter a physical aggression at a local marina. (T.p. 207-213, Supp. 44-50). A neighbor was robbed and pistol whipped in front of Mr. Klein's house. (T.p. 213, Supp. 50).

Mr. Klein is almost 60 years of age and does not have the physical ability he once had to stop a deadly physical attack without the use of a firearm. (T.p. 213, Supp. 50). In spite of his belief that he has an affirmative defense under R.C. 2923.12, Mr. Klein has a fear that he will be instantly arrested if found to be in possession of a concealed firearm. (T.p. 213-216, Supp. 50-53). Mr. Klein also has no doubt that he would be arrested by police officers if he carried an unconcealed firearm. (T.p. 218, Supp. 55). As a private investigator, Mr. Klein can obtain a license to carry an unconcealed firearm, but carrying a firearm unconcealed to conduct investigations and interviews would make it impossible for him to perform his business duties because persons being interviewed may feel threatened by the presence of an unconcealed firearm, which might result in his arrest for inducing panic, and it would be virtually impossible to conduct a discrete investigation with an unconcealed firearm. (T.p. 217-218, Supp. 54-55).

Carl Rauschenberger was presented as a witness. Mr. Rauschenberger is a certified law enforcement officer who has been in law enforcement in Hamilton County since 1964. (T.p. 390, Supp. 87). Mr. Rauschenberger spent the majority of his career with the Cincinnati Police Division, but now is a law enforcement officer with the City of Greenhills, a Defendant in this case. (T.p. 390-392, Supp. 87-89). Mr. Rauschenberger received training in the carrying concealed firearms statute and the statute pertaining to transportation in a motor vehicle. (T.p. 392, Supp. 89). In his career, he has personal experience in approximately 35 cases for the enforcement of each statute and has seen the statute enforced by other officers. (T.p. 393- 395, Supp. 90-92). The training Mr. Rauschenberger received was to arrest any person found in possession of a concealed firearm or who was transporting a loaded firearm in a motor vehicle. (T.p. 396, Supp. 93). In his career, in the City of Cincinnati and in Hamilton County, when he has seen other police officers involved in situations where a person found in possession of a concealed firearm or who was transporting a loaded firearm in a motor vehicle the result was the same, they were always arrested. (T.p. 398, 399, Supp. 94, 95).

Also throughout his career, it has been his experience that any time a citizen was found in possession of an unconcealed firearm, they were arrested and charged with inducing panic or disorderly conduct. (T.p. 400, Supp. 96). In his conversations with law enforcement officers from the other Defendant police organizations in this case, the answer is always the same, arrest any person found in possession of a concealed firearm or in possession of a loaded firearm in a motor vehicle. (T.p. 400-406, Supp. 96-102).

The testimony of Mr. Rauschenberger was confirmed by witnesses for the Appellants. Deputy Sheriff David Luke of the Hamilton County Sheriff s Office is a training officer. (T.p. 500 [stipulation of deposition as Luke testimony], Dep. p. 6, Supp. 121). The training provided at the Hamilton County Sheriff s Academy is the standard Ohio training curriculum provided by OPOTA, the Ohio Peace Officers Training Academy, which is used throughout the State of Ohio. (Dep. p. 6, Supp. 121). The training he provides is directly from the OPOTA curriculum. (Dep. p. 6, Supp. 121). That training is that any time you find a person in possession of a concealed firearm, there is probable cause to arrest that person. According to Deputy Sheriff Luke, the officers are taught that there is no discretion whether to arrest when someone is found in possession of a concealed firearm; an arrest is always made. (Dep. p. 40, 42, Supp. 124, 125). As to any affirmative defense, the training materials do not tell the officer what the officer is supposed to do if someone presents an affirmative defense. (Dep. p. 36-37, Supp. 123). There is nothing in the training materials that state that the officer can determine whether an affirmative defense applies. (Dep. p. 40, Supp. 124).

According to Deputy Sheriff Luke, affirmative defenses are something that a defense attorney can raise after the person is charged with the offense. (Dep. p. 38, 40, Supp. 124). According to Deputy Luke, there is no way for any citizen to tell in advance whether the citizen will be arrested, it all depends on which officer stops the citizen. (Dep. p. 30-31, Supp. 122). It was Deputy Sheriff Luke s belief that law-abiding citizens carrying firearms did not pose a danger to police. (Dep. p. 65-66, Supp. 127-128).

Lt. Col. Richard Janke, an assistant police chief for the City of Cincinnati, with over 20 years of experience (T.p. 432, Supp. 103), when confronted with the factual scenarios presented for Appellees Cohen, Feely and Klein, and asked to make a determination of whether or not any of them had an affirmative defense to a charge of carrying a concealed firearm testified that he could not make that determination without consulting with counsel, such as a prosecutor. (T.p. 467-472, Supp. 107-112). Likewise, Lt. Col. Janke confirmed that any citizen walking down the street with an unconcealed firearm was going to be stopped by the police, detained, and that charges of inducing panic or disorderly conduct could be placed against them.(T.p. 472-473, Supp. 112-113).

FIR cards are field interview reports. (T.p. 474, Supp. 114). The FIR cards are used by police officers to document an interview with a private citizen that occurs on the street. (T.p. 474, Supp. 114). FIR cards can be used if there is an arrest, but primarily they are used where there is no arrest of the individual. (T.p. 474, Supp. 114). According to Lt. Col Janke of the Cincinnati Police, polices officer make a FIR card any time a police officer engages a citizen and believes that information from that communication should be available to other police.

A review of the City of Cincinnati FIR cards for a two-year period shows approximately 300 involving weapons of some sort. (Supp. 146). They include many instances where Cincinnati Police Officers document a contact with a citizen who is carrying a toy gun, BB gun, or pellet gun, and even where a report that a citizen had a gun was found to be untrue. There is only one instance in the FIR cards where a Cincinnati Police Officer documented an encounter with a citizen who was carrying a concealed or unconcealed firearm and the citizen was released without arrest. The citizen was a government employee of the Department of Defense, and therefore exempt pursuant to police policy. (Supp. 146).

This lone FIR card proves both the certainty of arrest for the average citizen found with a firearm and the completion of a FIR card in the rare event of no arrest. The Hamilton County Sheriff s Department uses FIR cards in essentially the same manner as the City of Cincinnati. (Supp. 147). The parties have stipulated into evidence all of the FIR cards from the middle of 1995 until October 2000, a total of approximately 15,000. If a citizen were found with a gun and the person was not arrested, there would be a FIR card. (Supp. 147). There were no instances of a citizen being found in possession of a loaded firearm who was released without being charged. (Supp. 147).

The Appellants have consistently claimed that the statutes in question do not violate the Ohio Constitution because they do not prohibit carrying firearms for one s defense and security, but only prohibit carrying firearms while concealed. The evidence at trial, which was accepted by the trial court and included in the Findings of Fact, proves conclusively otherwise. The law enforcement officers who testified agreed that any citizen walking down the street with an unconcealed firearm was going to be stopped by the police, detained, and that charges of inducing panic or disorderly conduct could be placed against the citizen. (T.p. 400, 472-473, Supp. 96, 112-113).

Major J. P. Allen of the Ohio State Highway Patrol ( OSHP ) was offered as a witness by the Appellants. (T.p. 313, Supp. 77). Major Allen indicated that he was the official spokesperson for the superintendent of the OSHP. (T.p. 339, Supp. 82). Major Allen has over 30 years of experience with OSHP. (T.p. 314, Supp. 78). Major Allen has been involved in numerous incidents with citizens and carrying concealed weapons and transportation of firearms in a motor vehicle. (T.p. 317-318, Supp. 79- 80). Major Allen testified that he has on many occasions released persons found in a motor vehicle in possession of a loaded firearm. (T.p. 318, 320, Supp. 80, 81). The majority of the persons released were hunters. (T.p. 340, Supp. 83). However, the only provision of R.C. 2923.12 or R.C. 2923.16 that allows an affirmative defense for a hunter in possession of a loaded firearm in a motor vehicle is for groundhog and coyote hunters. Surely, all of the hunters weren t groundhog and coyote hunters. According to Major Allen, if a police officer knows that a citizen has an affirmative defense to having a concealed firearm or a loaded firearm in a motor vehicle, the police officer cannot arrest the citizen. (T.p. 342, Supp. 85). However, Major Allen testified that in any other case, regardless of the fact that the citizen has a concealed firearm or a loaded firearm in the vehicle, and regardless of the fact that the citizen does not have an affirmative defense as set out in the statutes, the police officer has the discretion whether of not to charge the person. (T.p. 341, Supp. 84). According to Major Allen, the decision to arrest for carrying a concealed firearm or transportation of a loaded firearm in a motor vehicle is an arbitrary decision by the officer. (T.p. 343, Supp. 86).

This testimony by Major Allen was confirmed by the testimony of Hamilton County Deputy Sheriff David Luke who testified that there is no way to know in advance whether on a given set of facts a citizen will be arrested by the police if found in possession of a concealed firearm because it all depends on which deputy stops you.

Major Allen testified that he has a concern for officer safety if R.C. 2923.12 and R.C. 2923.16 are declared unconstitutional. He acknowledged that he had no scientific basis for his opinion.

David Mustard, Ph.D., is a professor in the Economics Department of the Terry College of Business at the University of Georgia. Professor Mustard s specialty is in focusing on applied economic problems relating to matters like crime and law. (T.p. 73-74, Supp. 1- 2). Prior to the studies that he authored, Professor Mustard had no experience with firearms, had never shot a gun, and was not a member of any advocacy group concerning firearms. (T.p. 83-84, Supp. 8-9). In 1997, Professor Mustard published a study, coauthored with Professor John Lott, entitled, Crime, Deterrence, and Right-to-Carry Concealed Handguns. Prior to the time he conducted the study, Professor Mustard expected that with more guns, violent crime would go up. (T.p. 84-85, Supp. 9-10). He has also published a study entitled, The Impact of Gun Laws on Police Deaths. Both articles have been peer reviewed prior to publishing, which means that other researchers at the publications review and comment prior to the acceptance of the study for publication. (T.p. 77-78, 102-103, Supp. 3-4, 174-175).

The studies used econometrics, which is a statistical way of studying data surrounding economic types of questions. (T.p. 79-80, Supp. 5-6) . The studies analyzed crime data from every county in the United States to look at the impact of allowing law-abiding citizens to carry concealed firearms on crime rates. (T.p. 82, 85, Supp. 7, 10). The crime data were for violent crimes like murder, rape, robbery, aggravated assault, burglary, larceny and auto theft from the published statistics of the FBI. (T.p. 85, Supp. 10). Other government published data, such as data from the Bureau of Census were also used. (T.p. 86, Supp. 11).

The data and the methodology that served as the basis of the study were admitted at trial. (T.p. 87, 501, Supp. 176, 177). Dr. Mustard s studies looked at states that enacted shall issue permitting systems, where the government is required to issue permits to allow law-abiding citizens to carry concealed firearms, and compared the data from those states to other states to determine the impact of the change in the law that allowed the citizens to carry concealed firearms. (T.p. 88-90, Supp. 13-15). The studies produced statistically significant results, which means that there was between a 95% and 99% probability that the results were not random or due to chance. (T.p. 99-101, Supp. 19-21).

In the Crime, Deterrence, and Right-to-Carry Concealed Handguns study, the issue being examined was the effect of allowing law-abiding citizens to carry concealed firearms on serious crime rates. (T.p. 96-97, Supp. 16-17). The study found that when law-abiding citizens were allowed to carry concealed firearms for defensive purposes, serious and violent crimes against people are reduced by between 2% and 10%. (T.p. 97-98, Supp. 17-18). The study found that the crime rates decreased more in urban and large urban areas, which are more densely populated, and decreased more in communities with large minority populations. (T.p. 97, Supp. 17). The study also found there was no effect on accidental shootings by allowing law-abiding citizens to carry concealed firearms. (T.p. 101, Supp. 21).

In The Impact of Gun Laws on Police Deaths, the issue under study was the impact of allowing law-abiding citizens to carry a concealed firearm for self-defense on felonious police deaths. The statistically significant results of that study were that allowing law-abiding citizens to carry a concealed firearm for self-defense had no effect, to a slightly lower effect, on felonious police deaths. (T.p. 110-111, Supp. 22-23).

Professor Mustard also looked at the Ohio laws that pertain to the issues, such as the laws that prohibit criminals, and persons with drug or alcohol problems from possessing firearms, and compared the laws in Ohio to the laws in the states that allow law-abiding citizens to carry concealed firearms for self defense. Professor Mustard testified in his expert opinion, were the Court to strike down R.C. 2923.12 and R.C. 2923.16 as unconstitutional, and hence law-abiding citizens were allowed to carry concealed firearms for self defense, the same results would probably occur in Ohio, in Hamilton County: a 2% to 10% reduction in serious crimes against persons would occur, with the net impact greater in the bigger cities and where there are large percentages of African-Americans, like in Cincinnati and Hamilton County (T.p. 117-118, Supp. 24-25); there would be no increase in accidental deaths due to shootings (T.p. 118-119, Supp. 25-26); and there would be no increase in felonious police deaths (T.p. 118, Supp. 25). These opinions of Professor Mustard were admitted without objection by the Appellants. (T.p. 117-119, Supp. 24-26).

Professor Mustard also testified that based on his research and study, citizens who are lawfully allowed to carry concealed firearms for their defense are one of the most law-abiding groups in the populous. (T.p. 122. Supp. 27).

Professor Mustard also pointed out numerous mistakes and errors by the witness offered by the defense, Franklin Zimring. Professor Mustard pointed to many factual errors and mistakes that served as the basis for Professor Zimring s opinions, such as Professor Zimring s statements of fact, that were contradicted by the published government statistics. T.p. 122-129, Supp. 27-34).

Professor Zimring is not a statistician or an economist. Professor Zimring is a law rofessor at the University of California at Berkeley. (T.p. 129, Supp. 34). Professor imring acknowledged in his testimony that he has been associated with the no free lunch analysis that suggests that fairly substantial efforts to restrict general civilian availability to handguns would be necessary if one wanted to make large dents in the proportionate use of handguns and violence. (Zimring trial dep. p. 39, Supp. 131). He also testified that he has made the statement that the rate of gun-related violence would almost certainly increase if carrying loaded weapons became widespread. (Zimring trial dep. p. 41, Supp. 132). He acknowledged that at the time he made the statement, there was no study in existence that would support his position that increasing the carrying of loaded weapons would increase gun-related violence. (Zimring trial dep. p. 41-42, Supp. 132-133).

Professor Zimring also testified that he published a critique of Professors Lott and Mustard s study Crime, Deterrence, and Right-to-Carry Concealed Handguns, but that prior to writing the critique, he did not request or review the data upon which the study was based. (Zimring trial dep. p. 45, Supp. 134). Although Professor Zimring testified that he did several studies on the impact of firearms on society, the studies are more than 30 years old. (Zimring trial dep. p. 205-206, Supp. 129-130). Professor Zimring testified that he had done no studies on the issue of the impact of shall issue concealed carry of firearms laws and their impact on police deaths (Zimring trial dep. p. 51, Supp. 137), and he had done no statistical research or analysis from which he concluded that the passage of shall-issue concealed carry laws result in an increase in violent crime. (Zimring trial dep. p. 53-54, Supp. 138-139).

Professor Zimring s testimony was also based on studies by authors such as Nagin, Black and Duggin, none of which were admitted into evidence, all of which were clearly hearsay, and could not be used as the basis for an opinion under Evid. R. 703. (Zimring trial dep. p. 49-50, Supp. 135-136). The testimony of Professor Zimring was clearly biased and based on an inadmissible foundation. Id.
 

II. ARGUMENT

A. INTRODUCTION

The specific constitutional challenges in this case has not been made before. Although this case involves the carrying of concealed firearms and a determination of the constitutionality of R.C. 2923.12 and R.C. 2923.16, there is a more fundamental issue. It involves the Ohio constitutional right to bear to bear arms for defense and security. The evidence found to be true in the Findings of Fact by the trial court made it clear that any law-abiding citizen who carried a firearm concealed would be arrested. The testimony at trial, which the trial court incorporated into the Findings of Fact, made it equally clear that any law-abiding citizen who carried a firearm unconcealed would also be arrested. The same is true if found with a firearm in a motor vehicle, unless stopped by the Ohio State Highway Patrol.

The question posed by this case, then, is simple. If a law-abiding citizen is arrested for carrying a concealed firearm and is arrested for carrying an unconcealed firearm, how can a law-abiding citizen exercise the constitutional right to bear arms for defense and security without being arrested? This Honorable Court has commented in Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163, that a total prohibition on the carrying of firearms is unconstitutional. The facts in this case did not show a regulation of firearms in the time, place or manner of carrying them, but showed a total ban on the bearing of firearms for defense and security, concealed or unconcealed.

Clearly, the city would have exceeded its authority under Section 3, Article XVIII, and would have violated Section 4, Article I if it had banned all firearms. (Emphasis in original). Arnold, at 49. It is no wonder that the Court of Appeals found the statutory scheme unconstitutional.

PROPOSITION OF LAW NO. 1: The testimony of the Appellees that they carry a concealed firearm for their defense and security, that they are in constant fear of arrest, that one of them has been arrested and prosecuted for carrying a concealed firearms, and where the evidence shows that all but 1 person in Hamilton County in the last several years, a government employee, had been arrested when found in possession of a concealed firearm, the matter is ripe and the Appellees have standing to challenge the statutes that prohibit them from carrying a firearm for their defense and security.

The Appellants claim that the Appellees do not have standing and that the matter is not ripe for adjudication. Under the analysis of the Appellants, there is no circumstance under which a law-abiding citizen can challenge the constitutionality of a statute until that law-abiding citizen has been arrested. The Appellants claim that a law-abiding citizen's constitutional rights are adequately protected by an arrest, strip searching, hiring of a lawyer, the fear, embarrassment, cost and anxiety of prosecution, and a trial, wherein the law-abiding citizen is required to prove innocence or suffer conviction, which would forever bar the convicted of possessing a firearm in the future-thereby eliminating the very right the citizen tried to exercise responsibly. This argument is the epitome of bureaucratic governmental arrogance and insensitivity to the basic constitutional rights of citizens.

The power and duty of the judiciary to determine the constitutionality and the validity of the acts of the legislature is firmly established in Ohio law. Beagle v. Walden (1997), 78 Ohio St.3d 59, 62, 676 N.E.2d 506, 508 ("interpretation of the state and federal Constitutions is a role exclusive to the judicial branch")

In State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999) 86 Ohio St.3d 451, 715 N.E.2d 1062, the Supreme Court explained standing to challenge a legislative pronouncement as it applied to a private litigant:

These concerns become more acute where there may be an intrusion into areas committed to another and coequal branch of government. The judicial "power to declare legislative enactments unconstitutional is not a superior power, neither one of veto nor of greater wisdom. It is rather a power burdened with a duty -- a duty to decide in particular cases whether the Legislature has reached and passed the extreme boundary of legislative power." (Citation omitted). Thus, the judicial function does not begin until after the legislative process is completed and "the void law is about to be enforced against a citizen to his prejudice." Otherwise, if "no private rights of person or property are in jeopardy, * * * we are simply asked to regulate the affairs of another branch of government." (Citation omitted).

Accordingly, in the vast majority of cases brought by a private litigant, " 'the question of standing depends upon whether the party has alleged such a personal stake in the outcome of the controversy, as to ensure that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.' " (Citations omitted.). In order to have standing to attack the constitutionality of a legislative enactment, the private litigant must generally show that he or she has suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the public in general, that the law in question has caused the injury, and that the relief requested will redress the injury. (Citations omitted).

In the federal judicial system, where the requirement for injury is grounded in the constitutional requirements of Section 2, Article III of the United States Constitution, the necessity of showing injury in fact prevails irrespective of whether the complaining party seeks to enforce a private or public right. (Citations omitted). However, the federal decisions in this area are not binding upon this court, and we are free to dispense with the requirement for injury where the public interest so demands. "Unlike the federal courts, state courts are not bound by constitutional strictures on standing; with state courts standing is a self-imposed rule of restraint. State courts need not become enmeshed in the federal complexities and technicalities involving standing and are free to reject procedural frustrations in favor of just and expeditious determination on the ultimate merits. (Citation omitted).

As the foregoing points out, standing, as applied in Ohio to the litigation of the constitutionality of Ohio statutes, is different from Article III standing. In Ohio, to establish standing, Appellees Klein, Feely and Cohen must show, as a private litigant, that they are threatened with arrest if caught carrying a concealed firearm. Each of them has testified that they routinely carry a concealed firearm in the City of Cincinnati and Hamilton County. The FIR cards show that it is virtually impossible to avoid arrest for carrying a concealed firearm if they are stopped by a City of Cincinnati Police Officer or a Hamilton County Deputy Sheriff. Likewise, the testimony of Carl Rauschenberger demonstrates that arrest for carrying a concealed firearm by any of the other jurisdictions that enforce the laws in Hamilton County, with the exception of the Ohio State Highway Patrol, is a virtual certainty. (T.p. 398-406, Supp. 94- 102). That daily occurrence of potential arrest is a concrete injury for Appellees Klein, Feely and Cohen and gives them standing.

It is unnecessary for the Appellees to establish that they have been arrested under a municipal ordinance in order to have standing. In Peltz v. South Euclid (1967), 11 Ohio St. 2d 128, 44 O.O. 2d 129, the Ohio Supreme Court held, in its syllabus 1: Where a municipal ordinance imposing criminal penalties upon a contemplated act will be enforced against a person if he proceed with that act, such person has standing to test the validity, construction and application of such ordinance by an action for declaratory judgment, and it is unnecessary to demonstrate the existence of an actual controversy for such a person to incur a violation of the ordinance. (Section 2721.03, Revised Code.) (Wilson v. Cincinnati, 171 Ohio St. 104 [12 O.O. 2d 129], approved and followed).

Pack v. Cleveland (1982), 1 Ohio St.3d 129, 438 N.E.2d 434, paragraph one of the syllabus, extended the Peltz holding to state criminal statutes. The Appellees have standing to challenge these statutes.

As to ripeness, in determining that a case is ripe for a declaratory judgment, it must be demonstrated that (1) a real controversy exists between the parties; (2) the controversy is Justiciable in character; and (3) the situation requires speedy relief to preserve the rights of the parties. Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 97, 296 N.E.2d 261. It is not necessary that there be a violation of the statute at issue in order for a justiciable controversy to exist. Burger Brewing, at 98. On the contrary, it is necessary only that there be a controversy "between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Peltz v. South Euclid, supra, at 131.

As can be seen by the above cases, where the constitutionality of a criminal statute is challenged in a declaratory judgment, there need not be an arrest for the parties to have standing and for the case to be ripe. Here, the Appellees Klein, Feely and Cohen face daily arrest and prosecution under R.C. 2923.12 and R.C. 2923.16 for carrying concealed firearms. Said Appellees have standing and their cases are ripe for adjudication.

PROPOSITION OF LAW NO. 2: The constitutionality of a statute that limits the exercise of a fundamental, individual constitutional right, even though in the area of police powers regulation, should be examined under the strict scrutiny standard.

The Court of Appeals applied the Arnold, supra, standard for review of the constitutionality of R.C. 2923.12 and R.C. 2923.16, police power regulations. Arnold relied on Benjamin v. Columbus (1957), 167 Ohio St. 103, 146 N.E.2d 854, for the standard. The Benjamin test of a police powers statute's constitutionality is two-fold: 1.) does it bear a real and substantial relation to public health, safety, morals or general welfare of the public, and, if so, 2.) is it unreasonable or arbitrary? The Court of Appeals criticized the application of this test where, as here, the issue in the case is the law-abiding citizen s right to bear firearms for defense and security. Arnold held this right, as guaranteed by Art. I, Sec. 4, of the Ohio Constitution, a fundamental, individual right.

The criticism of the application of the Benjamin test where a fundamental constitutional right is involved is justified. In addition to Benjamin, the Court in Arnold also relied on Cincinnati v. Correll (1943), 141 Ohio St. 535, 49 N.E.2d 412, which involved an ordinance concerning the hours of operation of a barber shop, and Kraus v. Cleveland (1955), 163 Ohio St. 559, 127 N.E.2d 609, which involved the fluoridation of water. Where police regulations are at issue, but no fundamental constitutional right is involved, the Benjamin test may be appropriate. But, where a fundamental constitutional right is involved, strict scrutiny has always been the test.

In the dissent in Arnold, Judge Hoffman, sitting by designation, criticized the diversion from firm constitutional precedents created by the Court in dealing with legislation that impaired a fundamental constitutional right. Judge Hoffman stated: "Under the strict scrutiny analysis, a law which impinges upon a fundamental right is presumptively unconstitutional unless a compelling governmental interest justifies it." (Citations omitted). The Court of Appeals found that no matter what standard was used, the strict scrutiny or Benjamin standard, R.C. 2923.12 and R.C. 2923.16 were unconstitutional. Those issues are discussed infra. The Appellees urge this Court to apply strict scrutiny in its analysis of the issues.

As Justice Hoffman, in his dissent in Arnold, joined by Justice Pfeiffer, stated: "The majority adopts the position that as long as the legislation is enacted to promote public health and safety it need only be reasonable to pass constitutional muster, even though it interferes with a personal or collective liberty. Such standard is appropriate when analyzing legislative restrictions on nonfundamental rights. However, I believe a stricter standard must be utilized when the legislation places restrictions upon fundamental rights, particularly where the legislation prescribes an outright prohibition of possession as opposed to mere regulation of possession. A 'strict scrutiny' test, i.e., whether the restriction is necessary to promote a compelling governmental interest, as opposed to the less demanding 'reasonable' or 'rational relationship' test, ought to be applied." (Citation omitted). Under the strict scrutiny analysis, a law which impinges upon a fundamental right is presumptively unconstitutional unless a compelling governmental interest justifies it. (Citations omitted). Furthermore, any such infringement must be drawn with "precision." (Citation omitted). "And if there are other, reasonable ways to achieve those goals with a lesser burden on a constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose 'less drastic means.'" (Citations omitted). Exercise of the police power may not be achieved by a means which sweeps unnecessarily broadly. (Citation omitted).

This Honorable Court was recently faced with a decision on the level of scrutiny to be applied to a determination of the constitutionality of a police regulation where a fundamental right was involved. In State v. Thompson (2002), 95 Ohio St. 3d 264, 767 N.E.2d 251, the Court held that where a fundamental right is involved, strict scrutiny is required. Id., . 30.

The Appellees urge the Court to reexamine the strict scrutiny standard as it applies to this case where fundamental constitutional rights are affected. The Appellants below have not shown that making it a felony to possess a concealed firearm is necessary to promote a compelling governmental interest and have not shown that the least intrusive means was used to accomplish the goal. There was no testimony below by the Appellants on either of those issues, which is their burden. Id., . 20. Even if the Court were to hypothesize a compelling governmental interest, a less intrusive means to accomplish the goal would be a permit system, which exists in 43 other states. Professor Mustard made this point clear. (T.p. 88- 89, Supp. 13-14). A properly constructed permit system would not allow criminals and other miscreants from legally possessing a concealed firearm, and would not make it a felony for a citizen attempting to exercise his constitutional rights by carrying a concealed firearm. This failure to utilize the least intrusive means requires that R.C. 2923.12 and R.C. 2923.16 be struck down under a strict scrutiny standard.

PROPOSITION OF LAW NO. 3: Prior precedent concerning the carrying of firearms does not mandate a finding of constitutionality for statutes that are clearly unconstitutional on their face and as applied.

The Appellants rely on State v. Nieto (1920), 121 Ohio St. 280, 130 N.E. 663, for the proposition that the Ohio statutory scheme prohibiting law-abiding citizens from carrying concealed firearms is constitutional. The argument of the Appellants ignores the differences in the statute at issue in Nieto, and the testimony in the court below, and the trial court's findings of fact.

Nieto was an appeal by the State after an acquittal, the trial judge having instructed the jury that there was an exception to the carrying concealed weapon statute, to wit, that one could have a concealed weapon in one s own home. The prosecution did not like this statement of law, so it appealed the instruction. The Ohio Supreme Court agreed, holding that there was no home exception.

At the time, Nieto was rendered, the law read as follows:

Section 12819 Whoever carries a pistol, bowie knife, dirk, or other dangerous weapon concealed on or about his person shall be fined not to exceed five hundred dollars, or imprisoned in the county jail or workhouse not less than thirty days nor more than six months, or imprisoned in the penitentiary not less than one year nor more than three years.

Section 13693 Upon the trial of an indictment for carrying a concealed weapon, the jury shall acquit the defendant if it appear that he was at the time engaged in a lawful business, calling or employment, and that the circumstances, in which he was placed, justified a prudent man in carrying such weapon for the defense of his person, property or family.

First, Mr. Nieto was found drunk by police after being called to the bunkhouse for threatening a cook. A violent threatening drunk from Mexico should not bind this Court on issues involving the law-abiding citizens of Ohio. Second, on the specific point decided by Nieto, the state legislature has overruled it. There is now a specific exception for carrying of concealed weapons in one s own home. One must wonder about the viability of an 80 year-old case that held that Ohio citizens have no right to have concealed weapons in their own homes, a proposition of law that was directly overruled by the Ohio Legislature. Furthermore, the statute and the times were different. There was no provision of Section 12819, General Code, that allowed any government employee to carry a concealed firearm with the permission of the agency or department head, such as is contained in R.C. 2923.12 and R.C. 2923.16. There was no indication in the decision that law-abiding citizens were customarily arrested for carrying exposed firearms, such as was the testimony in the court below, which was accepted and incorporated in the Findings of Fact. Both the government exception to prosecution and the arrest for unconcealed carry served as the basis for the finding of unconstitutionality below and clearly distinguish Nieto from the decision below. Finally, the older law specifically charged the jury to acquit the defendant if the facts were in favor of the defendant-indicating the burden was on the state to prove no justification for carrying the weapon, not the other way around. R.C. 2923.12 and R.C. 2923.16 have switched this burden to the defendant to prove a justification for his constitutionally protected conduct.

Likewise, the issues in Porello v. State (1929), 121 Ohio St. 280, 168 N.E. 135, are clearly distinguishable. Porello again involved Section 12819, General Code. In discussing the constitutionality of Section 12819, General Code, under existing law, the court did not cite Nieto. Rather, the court stated: It is claimed further by plaintiff in error that he is denied his constitutional right by virtue of this judgment of conviction, claiming that Sections 4, 10, and 14 of Article I of the Constitution of Ohio have been infringed by his trial and conviction. The first of these sections gives the people the right to bear arms for their defense and security. In view of Section 13693 which makes ample provision for the necessities of genuine self-defense, we see little soundness in this contention.

In Porello, like Nieto, there was no discussion or testimony that government employees with the permission of their agency or department heads were allowed to carry concealed firearms. R.C. 2923.12(B); R.C. 2923.16(D)(1); Opinion No. 87-015 (1987) 1987 Op. Atty Gen. Ohio 92. Also, there was no testimony in Porello or Nieto that law abiding citizens were not being allowed to carry unconcealed firearms. The statutes at issue below were materially different from the General Code provisions at issue in Porello and Nieto, as was the testimony. Porello and Nieto cannot serve as authority in this materially different case.

An insight into the times can be gained, however, by examining a quote in Porello. There, quoting Spear, J., in the case of State v. Hogan, 63 Ohio St. 202, at page 218, 58 N.E., 572, 575, Porello stated: The constitutional right to bear arms is intended to guarantee to the people in support of just government such right and to afford the citizen means for defense of self and property. While this secures to him a right of which he cannot be deprived, it enjoins a duty in execution of which that right is to be exercised. If he employs those arms which he ought to wield for the safety and protection of his country, his person and his property, to the annoyance and terror and danger of its citizens, his acts find no vindication in the bill of rights. That guarantee was never intended as a warrant for vicious persons to carry weapons with which to terrorize others. Going armed with unusual and dangerous weapons to the terror of the people is an offense at common law. A man may carry a gun for any lawful purpose, for business or amusement, but he cannot go about with that or any other dangerous weapon to terrify and alarm a peaceful people.

As the quotation shows, at the time of the Porello decision, it was understood that law-abiding citizens could carry firearms for any lawful purpose, including their amusement. It was the criminals that were intended to be prohibited by the General Code provision, such as Porello who was a bootlegger carrying a concealed firearm. It was never the intention of the court in Porello to prohibit law-abiding citizens from carrying firearms. And, when the term amusement is read in conjunction with the affirmative defenses in the code, Section 13693, General Code, which only allowed carrying a concealed firearm while the person was engaged in a lawful business, calling or employment, and that the circumstances, in which he was placed, justified a prudent man in carrying such weapon for the defense of his person, property or family, it is clear that there was no prohibition on the unconcealed carrying of any firearm for amusement. However, as the evidence below accepted by the trial court in the Findings of Fact showed, carrying an unconcealed firearm today for amusement means certain arrest. (T.p. 400, Supp. 96, 146-147). Porello clearly concerned a factual situation different from the testimony below.

The authorities cited by the Appellants have no precedential effect. Additionally, it is clear that neither Nieto or Porello considered claims of unconstitutionality under Article I, Section 1, dealing with inalienable rights, Section 2, dealing with equal protection, Section16, dealing with due process, or Section 20, dealing with the limitation on the legislature to enact laws and the powers reserved to the people. Nieto and Porello are not binding authority on the Court for the issues in the court below for many reasons, including that Nieto and Porello were not law-abiding citizens at the time of their possession of the firearms.

PROPOSITION OF LAW NO. 4: The Ohio Constitutional guarantees as contained in Article I, Sections 1 and 4, are intended to be expressions of the rights that the Founding Fathers wanted to ensure were clearly understood to be retained by the people. Also, the expressions contained in Article I, Sections 1 and 4, are delineations of the limits of regulation allowed to the legislature. If the Founding Fathers had intended the legislature to be able to limit the right of law-abiding citizens to carry concealed firearms, Article I, Sections 1 and 4, would contain language allowing such a limitation. Article I, Section 20, makes it clear that citizens have a constitutional right to carry a concealed firearm.

In the trial court, the Appellees requested the trial court to find a fundamental, personal, constitutional right to carry a concealed firearm. The Trial Court so found. (Supp. 165). The Court of Appeals affirmed the ruling of the trial court, although the Court of Appeals did not discuss the fundamental, personal, individual right to carry a concealed firearm found within the Ohio Constitution.

Article I, Sections 1 and 4, of the Ohio Constitution recognize that every citizen of Ohio has a constitutional right to defend their life and to bear arms for their defense and security. Virtually every state, and the Federal Constitution, contain similar provisions. The Constitutions of the states of Colorado, Idaho, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, North Carolina, and Oklahoma contain a constitutional right to bear arms, but specifically allow the legislature to enact laws to regulate the carrying of concealed weapons.

In other words, those state constitutions recognize the right of citizens to bear firearms for their defense and security, but the constitutional provisions also specifically delineate the right of the legislature to place restrictions on the right to bear arms. If the Founding Fathers of the State of Ohio had intended to allow the General Assembly to regulate the carrying of concealed firearms, it is obvious that such a provision would have been clearly stated in the Ohio Constitution.

Article I, Section 20, explains the right of the legislature to pass laws affecting citizens rights. Article I, Section 20 of the Constitution of the State of Ohio, states as follows: Powers reserved to the people. This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.

Article I, Section 20, makes the Ohio Constitution a document of delegated powers. State ex rel. A. Bently & Sons Co. v. Pierce (1917), 96 OS 44, 117 NE 6. The section expressly precludes the legislative branch from exercising any power which is not delegated to it in the constitution. State ex rel. Robertson Realty Co. v. Guilbert (1906), 75 OS 1, 78 NE 931 ( The Constitution explicitly grants and defines the separate powers of each branch of the General Assembly; and all powers which are not delegated to each house are expressly reserved to the people. ). However, the General Assembly exercises delegated authority only, and any act passed by it not fairly falling within the scope of legislative authority is as clearly void as though expressly prohibited. Cincinnati, Wilmington & Zanesville Rd. Co. v. Commissioners of Clinton County (1852), 1 Ohio St. 77; Baker v. City of Cincinnati (1860), 11 Ohio St. 534.

In construing these constitutional provisions, as they apply to the facts of this case, the language of the constitution must be given its usual and ordinary meaning. Cleveland Tel. Co. v. Cleveland (1918), 98 OS 358, 121 NE 701.

In the absence of a delegated power to the legislature to limit or regulate the carrying of concealed firearms by a private citizen, the right of citizens to carry concealed weapons is a clear constitutional right. There was no power given to the legislature in Article I, Section 4, to limit or regulate the bearing of arms for defense and security. Article I, Section 20, then, reserves as a constitutional right any right not specifically limited in Article I, Section 4, and reserves to the people any power not specifically delegated to the legislature in Article I, Section 4. The legislature has no authority to regulate the carrying of concealed firearms because the legislature was not given the right in the Ohio Constitution to limit the right of the people to carry a concealed firearm. The trial court was correct in determining a fundamental constitutional right to carry a concealed firearm. The Court of Appeals was correct in its affirming of the trial court decision.

Additionally, the Appellants try to contend that the people in Art. I, Section 4, of the Ohio Constitution, wherein it states [t]he people have the right to bear arms for their defense and security, means that people in a collective sense have the right to possess arms in a military context. This argument deserves little scrutiny.

First, it makes no sense for the framers of the Ohio Constitution to place a constitutional right of the military to possess weapons of defense, an absurd concept in itself, in the Ohio Bill of Rights. Second, the Appellants analysis is directly contrary to this Honorable Court s analysis in Arnold, supra, wherein the Court found an individual, fundamental, personal right to bear arms under Art. I, Section 4 of the Ohio Constitution, and Porello, wherein the Court noted the right of a law-abiding citizen to carry a firearm for amusement. Third, to argue that the people are not individuals could require the Court to conclude, for example, that the right of the people to be free from unreasonable searches and seizures didn't protect individual citizens from governmental invasion of their person or home. (Art. I, Section 14, Ohio Constitution: The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; . . . ) If the position of the Appellants were correct, no individual citizen could complain about a governmental unreasonable search, since under their analysis, only the collective people of Ohio could complain. The argument of the Appellants is feckless.

Unfortunately, the Appellants don t stop there, but claim that other state Constitutions do not prohibit a ban on concealed carry. They also claim that bear should become possess and that handguns are not arms. These baseless claims require some rebuttal as well.

First, the other states mentioned do not have a system where all forms of carrying firearms are prohibited, as was demonstrated in the Findings of Fact below, so citing old concealed-carry-only rulings ignores the pertinent fact in this case. Second, many of the cases cited are either selectively cited or ignore later decisions. For example, the Kansas examples cited by the amici ignore a later case where the Kansas Supreme Court backed away from the collective right hypothesis and actually struck down a complete carry ban as an unconstitutional use of police power because it was unreasonable and oppressive. City of Junction City v. Mevis (1979), 226 Kan. 526, 601 P.2d 1145, headnote 2. Third, they ignore the fact that the Supreme Court of Vermont declared its concealed carry ban unconstitutional. State v. Rosenthal (1903), 75 Vt. 295, 55 A. 610. Vermont still exists, with a much lower crime rate than Cincinnati. Fourth, the legislature of Ohio is poised to enact a licensed carry system, so the fear of unregulated carry for everyone is exaggerated.

They also claim that the Second Amendment does not bar a ban on concealed carry. The Second Amendment was not an issue in this case, but their point remains unknown as there is no federal law barring the concealed carry of firearms except in a few locations-a fact they neglect to mention. Until the issue comes before the U.S. Supreme Court under the Second Amendment, there is no way to reasonably predict the outcome. Citing federal cases dealing with the Second Amendment simply have no bearing on this case.

PROPOSITION OF LAW NO. 5: R.C. 2923.12 and R.C. 2923.16 are void for vagueness and violative of Due Process where senior law enforcement officials testify that they cannot determine whether a person is in violation of those statutes without consulting a lawyer.

To illustrate the difficulty of a citizen in predicting the outcome of his or her claim of an affirmative defense when deciding to carry a concealed firearm under R.C. 2923.12 or R.C. 2923.16, Appellees ask the Court to go to the page 178-183 of the Supplement of the Appellees. There, the Court will find a test, which Appellees believe will be instructive. After marking down your answers and comparing them to the correct answers, the reader should return to this page.

The due process clause mandates that statutes governing conduct define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson (1983), 461 U.S. 352, 357, 103 S.Ct. 1855, 1858. In order for R.C. 2923.12 and R.C. 2923.16 to survive a void for vagueness challenge, the statutes must be written so that a person of common intelligence is able to determine what conduct is prohibited, and the statute must provide sufficient standards to prevent arbitrary or discriminatory enforcement. State v. Williams (2000), 88 Ohio St.3d 513, 532, 728 N.E.2d 342.

As pointed out in the Proposition of Law No. 6 relating to equal protection, R.C. 2923.12 and R.C. 2923.16 are enforced in Hamilton County in an arbitrary and discriminatory manner depending on which of the law enforcement agencies finds the citizen in possession of a concealed firearm. Therefore, R.C. 2923.12 and R.C. 2923.16 are violative of due process and equal protection.

Lt. Col. Janke of the Cincinnati Police Department, an Assistant Police Chief, testified that law enforcement officers who stop a suspect and find them in possession of a loaded firearm must conduct an investigation to determine whether any affirmative defense applies before an arrest can be made. (T.p. 434-435, Supp. 105-106). However, Lt. Col. Janke, who has over 20 years of experience in law enforcement, testified that he could not determine whether Appellees Klein, Feely or Cohen could lawfully carry a concealed firearm without suffering arrest and that he would have to contact an attorney or prosecutor to make that determination. (T.p. 467-472, Supp. 107-112). If a senior member of law enforcement in Hamilton County can t determine whether an affirmative defense applies to Klein, Feely or Cohen without contacting an attorney or prosecutor, how can Klein, Feely, Cohen, or any other law-abiding citizen determine whether they are committing a crime when they decide to walk down the street, or drive their car, with a concealed firearm while exercising their constitutional right to bear a firearm for their defense and security? Any statute that is so difficult to understand that the most senior members of a law enforcement agency can't determine whether there is a violation of law with an opinion by legal counsel is devoid of any standard that a reasonable person could be expected to understand and, hence, void for vagueness. The Court of Appeals agreed and so found in their decision at p. 10.

In Perez v. Cleveland (1997), 78 Ohio St.3d 376, 678 N.E.2d 537, the Court explained void-for-vagueness claims: In Grayned v. Rockford (1972), 408 U.S. 104, 108-109, 92 S. Ct. 2294, 2298- 2299, 33 L. Ed. 2d 222, 227-228, the United States Supreme Court set out the following guidelines for evaluating a void-for-vagueness claim: 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. Vague laws may trap the innocent by not providing fair warning. 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 matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

*** [FN1] (Footnotes omitted.) Accordingly, when a statute is challenged under the due process doctrine of vagueness, a court must determine whether the enactment (1) provides sufficient notice of its proscriptions and (2) contains reasonably clear guidelines to prevent official arbitrariness or discrimination in its enforcement. Smith v. Goguen (1974), 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605.

Here, Appellee Feely got an interpretation from police officers and lawyers that all told him that he could lawfully carry a concealed firearm. (T.p. 269, Supp. 69). Still, he was arrested and prosecuted. (T.p. 272-273, Supp. 72-73). Janke, a seasoned senior law enforcement official stated that even though officers were required to determine whether an affirmative defense existed before an arrest could be made (T.p. 434-435, Supp. 105-106), he couldn t determine it himself without a prosecutor s opinion. (T.p. 467-472, Supp. 107-112). Such a statutory scheme, which citizens and lawyers cannot understand, is void for vagueness. The Court of Appeals was correct in striking down R.C. 2923.12 and R.C. 2923.16 as a violation of Due Process.

PROPOSITION OF LAW NO. 6: R.C. 2923.12 and R.C. 2923.16 create a classification of government employees, who, merely because of their government employment, are permitted to carry concealed firearms while virtually identically situated private citizens are not permitted to carry concealed firearms. R.C. 2923.12 and R.C. 2923.16 deny Equal Protection and are unconstitutional.

R.C. 2923.12 and R.C. 2923.16 create classifications that describe who may possess concealed firearms, and those who may not without fear of arrest and felony prosecution. Under those classifications, police officers, other law enforcement personnel, and any other federal or state employee who has permission from their employer may carry a concealed firearm. The sections specifically state that it is not a criminal offense for officers, agents, or employees of this or any other state or the United States . . . authorized to carry concealed weapons or dangerous ordnance, and acting within the scope of their duties to carry a concealed firearm. The meaning of this section has been interpreted by the Appellant State of Ohio, through its Attorney General. In Ohio Attorney General Opinion 87- 015, the Attorney General opined:

Your second question concerns whether the Department of Agriculture's food stamp trafficking investigators are permitted by law to carry concealed weapons. The General Assembly has chosen not to statutorily authorize persons holding specified positions to carry a concealed weapon. Thus, there are no statutory provisions stating that persons who hold specific positions are permitted to carry a concealed weapon.

However, R.C. 2923.12 provides that: (A) No person shall knowingly carry or have, concealed on his person or concealed ready at hand, any deadly weapon or dangerous ordnance. (B) This section does not apply to officers, agents, or employees of this or any other state or the United States, or to law enforcement officers, authorized to carry concealed weapons or dangerous ordnance, and acting within the scope of their duties. Emphasis added.)

Pursuant to this section, law enforcement officers and agents or employees of this or any other state or the United States are exempted from the prohibition against carrying concealed weapons if they are authorized to carry a concealed weapon or dangerous ordnance and are acting within the scope of their duties. As concluded above, the investigators in question do not qualify as law enforcement officers.
However, they are agents or employees of the state, and presumably would be carrying the weapons only within the scope of their duty, if "authorized" to do so. The requirement that the person be authorized to carry a concealed weapon presents an additional difficulty. R.C. 2923.12 is silent as to whether the authorization to carry a concealed weapon or dangerous ordnance must be made by statute or whether it may be conferred by the chief officer of the person's department or agency. Since, as noted previously, I have found no statutes which authorize a person holding a specified position to carry concealed weapons or dangerous ordinances, I must conclude that the General Assembly intended through R.C. 2923.12(B) to allow the chief officer of a state department or agency to authorize agents or employees to carry a concealed weapon.

In other words, any government investigator, with permission from the supervisor, may carry a concealed firearm while working. Under the rationale of the Attorney General, any federal or state employee, of this or any other state, with permission of his/her department or agency head, may carry a concealed firearm while working. So, under the classification in the statute, the mere fact of government employment, for someone who is not law enforcement, is enough to allow carrying of a concealed firearm, provided the department or agency head permits it.

Contrast the classification of permission for government employees, with the prohibition for private citizens. Appellee Klein is a licensed private investigator. (T.p. 196, Supp. 35). If he is caught carrying a concealed firearm in Hamilton County, he will be arrested. (T.p. 398-399, Supp. 94-95). Appellee Klein has been threatened with arrest if he is caught with a concealed firearm. (T.p. 201, Supp. 40). Appellee Feely has already been arrested and prosecuted once. (T.p. 269-275, Supp. 69-75). Klein, Feely and Cohen will be arrested, while a government employee will go free under the legislative classification system created to protect any government employee as set forth in R.C. 2923.12 and R.C. 2923.16. Klein, if working on a private assignment as an investigator, will run the same risk as a State investigator on the same type of assignment, doing the same type of investigation on the same type of people for similar purposes; Klein will be arrested if he is found in possession of a concealed firearm while the government investigator will not. This classification violates Article I, Section 2, of the Ohio Constitution.

In Beagle v. Walden (1997) 78 Ohio St.3d 59, 676 N.E.2d 506, the test to determine whether equal protection is violated was explained: The standard for determining violations of equal protection is essentially the same under the state and federal law. Beatty v. Akron City Hosp. (1981), 67Ohio St.2d 483, 491, 21 Ohio Op. 3d 302, 307, 424 N.E.2d 586, 591-592.

The preliminary step in analyzing an equal protection challenge involves scrutiny of classifications created by the legislation. "Where there is no classification, there is no discrimination which would offend the Equal Protection Clauses of either the United States or Ohio Constitutions." Conley v. Shearer (1992), 64 Ohio St.3d 284, 290, 595 N.E.2d 862, 868. Moreover, "only when it is shown that the legislation has a substantial disparate impact on classes defined in a different fashion may analysis continue on the impact of those classes." Califano v. Boles (1979), 443 U.S. 282, 294, 99 S. Ct. 2767, 2774, 61 L. Ed. 2d 541, 551. "'Whenever the law operates alike on all persons and property, similarly situated, equal protection cannot be said to be denied.'" Union Sav. Assn. v. Home Owners Aid, Inc. (1970), 23 Ohio St.2d 60, 63, 52 Ohio Op. 2d 329, 330, 262 N.E.2d 558, 560, quoting Walston v. Nevin (1888), 128 U.S. 578, 582, 9 S. Ct. 192, 193, 32 L. Ed. 544, 546.

Here, the law doesn t operate alike on similarly situated individuals. Government investigators are treated different from private investigators, like Appellee Klein. There is a distinction in the statute, between being on the government payroll, and not being on the government payroll. This distinction also favors government employees of other states over private citizens of Ohio. That classification, where we are talking about possession of firearms, which the Arnold case found to be a fundamental, personal, constitutional right, is arbitrary and unreasonable and violates equal protection. There simply is no connection between government employment and the right to protect one s life and property. The statutes deny equal protection for another reason. In Hamilton County, there are many law enforcement officers. As shown at trial, all of those jurisdictions, with the exception of the Ohio State Highway Patrol ( OSHP ), will always arrest the person caught in possession of a concealed firearm. The OSHP routinely releases persons found in possession of a concealed firearms, primarily if they are hunters. (T.p. 340, Supp. 83). Maj. Allen of the OSHP testified that he has released over 100 persons in his career. (T.p. 320, Supp. 81). R.C. 2923.12 has no affirmative defense or exception to prosecution for hunters. The only exception in R.C. 2923.16 for hunters is for coyote and groundhog hunters. It strains credulity to believe that all 100 hunters were scouring the hills for coyote and groundhog. In fact, Maj. Allen, the official spokesperson for the OSHP (T.p. 339, Supp. 82), testified that R.C. 2923.12 and 2923.16 were enforced by the OSHP in Hamilton County and elsewhere arbitrarily ( arbitrary decision ). (T.p. 343, Supp. 86).

This statement by Maj. Allen shows that even within the classification of private citizens, all private citizens are not treated equally. In other words, as to the classification of non-law enforcement and non-government, in Hamilton County, if the private citizen is stopped by any law enforcement agency other than the OSHP, the private citizen will be arrested. If the private citizen is stopped by the OSHP, the private citizen may or may not be arrested, by arbitrary decision. For this reason also, the trial court was correct in finding a violation of equal protection because of the arbitrary and unreasonable enforcement of the statute, which, although not specifically discussed by the Court of Appeals, the decision was affirmed by the Court of Appeals.

And while the law is enforced with extreme vigor against private citizens, it is ignored by law enforcement officers when they are confronted with their off-duty brethren. All of the law enforcement officers who testified admitted that they would not arrest an off- duty officer who is carrying a concealed firearm, even though he is not acting in the scope of his duties. The primary justifications for this posture is that they could be called back to duty at any moment, or they might run into disgruntled erstwhile arrestees. These precise arguments were rejected by the court below in State v. Hassell, Hamilton App. No. C- 920530, May 5, 1993. Thus, even where the statute and case law prohibit them from carrying a weapon, they openly refuse to enforce the law against themselves. He who has the guns, makes the rules.
Appellees do not mean to imply that off-duty officers should not carry firearms. Appellees merely claim that they should be treated equally. Even in the manner in which one may determine his right to carry a concealed weapon, government employees are given procedural due process, while private citizens are not. Government employees are provided with a method to predetermine their right to carry by simply asking their boss if it is permitted. Private citizens must risk a felony conviction, and even if vindicated at trial, they have no post-deprivation cause of action for damages because of probable cause to arrest them if they are found with a concealed firearm.

Finally, for the Appellants to suggest here, for the first time, that if the affirmative defenses are unconstitutional, the court should strike down the affirmative defenses, but leave the other provisions intact is contrary to law and common sense. Arnold stated that a total prohibition on carrying firearms was unconstitutional. As the Findings of Fact show, there is a total ban in Hamilton County, Ohio, on carrying firearms concealed or unconcealed. Striking the affirmative defenses, but leaving the ban on concealed firearms intact, won t change that fact or the denials of equal protection.

PROPOSITION OF LAW NO. 7: An affirmative defense that requires a citizen to be arrested and prosecuted in order to exercise his/her fundamental Ohio constitutional right to bear arms for defense and security denies a law-abiding citizen due process under the Ohio Constitution.

The trial court found that a citizen is without an adequate remedy at law under the statutory structure that creates affirmative defenses in R.C. 2923.12 and R.C. 2923.16. (Supp. 172). The Court of Appeals agreed. The reason for this finding is obvious. There can be no dispute that, according to Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163, the right to bear arms under Article I, Section 4, is a fundamental, personal right. Yet, a law-abiding citizen who seeks to exercise that constitutional right by carrying a concealed weapon has no way to determine in advance whether the law-abiding citizen will be arrested, prosecuted and subjected to the possibility of a felony conviction. The statutes provide no hearing or other pre-arrest opportunity for this determination. In order for the arrest to be lawful, all the law enforcement officer must do is find a law-abiding citizen in possession of a concealed firearm. Then, if the law-abiding citizen cannot prove innocence to the satisfaction of the fact finder, a felony conviction results and the law-abiding citizen is forever barred by state and federal law from ever possessing a firearm again. And, no matter whether the law-abiding citizen is found innocent or guilty, there is no remedy at law for the citizen since an arrest for the possession of a concealed firearm, nearly always bars any federal or state civil liability against the arresting officer. Weible v. Akron, App. No. 14878, Summit Co., May 8, 1991. No other Ohio constitutional right is treated this way.

Appellants have argued that there is civil liability if the arresting officer knows the suspect has an affirmative defense. However, this knowledge must be to a certainty for civil liability to ensue. Of course, the reason that none of the Appellants, not the State Patrol, not the Hamilton County Sheriff, and not the Cincinnati Police Department, were able to document in the FIR cards a single example of someone being released for this reason is that the only time it can ever happen is where the officer knows the suspect intimately, and people are not usually arrested by their friends or acquaintances. See, Painter v. Robinson (6th Cir. 1999), 185 F.3d 557; 1999 U.S. App. LEXIS 16681; Estate of Dietrich v. Burrows (6th Cir. 1999), 167 F.3d 1007(6th Cir. 1999).
Thus, the statute creates a crime, wherein the prohibited act is frequently, if not usually innocent conduct, and sets up a procedure whereby nearly everyone found engaging in that conduct will be arrested, strip searched, and charged with a felony, and even though most will be vindicated, almost none will be entitled to compensation for that arrest. And there is no way to avoid the dilemma with a predeprivation hearing, unless you work for the government.

To establish a due process violation, it must be shown that the conduct complained of deprived appellant of a liberty interest without adequate procedural safeguards. Bd. of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 569, 33 L. Ed. 2d 548, 92 S. Ct. 2701. Doubtless, the Appellants will contend that a right to appeal a criminal conviction is an adequate procedural safeguard. But is it adequate when a mistake by the law-abiding citizen in determining their legal ability to carry a concealed firearm will forever bar the citizen from possessing a firearm again on conviction? A review of the appellate cases on concealed carrying of firearms shows that law-abiding citizens with an objectively reasonable basis for carrying a concealed firearm, within the affirmative defenses of the statutes, routinely have their convictions upheld on appeal. What procedural safeguards are in place to protect these law-abiding citizens exercising their fundamental constitutional rights? There is no pre-deprivation or post-deprivation process that adequately protects the law-abiding citizen from the potential loss of their fundamental constitutional right to bear a firearm for defense and security. This is a violation of due process under Article I, Section 16 of the Ohio Constitution.
In Martin v. Ohio (1987), 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267, the Supreme Court held that the defendant could be required to prove the defense of self-defense without violating procedural due process. This was at least partly due to the fact that this was the common law at the time the U.S. Constitution was adopted. Under an original intent interpretation, there could be no other result. In the case of the concealed carrying of firearms, there is no historical support for shifting the burden to the defendant. At the time the Ohio Constitution was adopted, there was no prohibition against carrying a concealed weapon.

Martin involved the intentional killing of another human being with prior calculation and design. Normally, killing someone in a planned manner is culpable conduct. There are exceptions, of course, but they are rare. Therefore, it is not fundamentally unfair to shift the burden of proof to the defendant on that issue. Likewise, it is fair to shift the burden on the issues of competency and insanity. These are exceptional circumstances, which can more easily be proven by the defendant. Moreover, this was the common law at the time the Bill of Rights was adopted.

But while the Supreme Court has permitted some shifting of burdens, it has maintained that there are limits. As was stated in Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281: This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. Thus, these cases do not suggest that criminal statutes can be structured to shift the burden of proving essential elements of crimes by the creative use of affirmative defenses.

On the other hand, Chapter 2903 prohibits a wide range of assaultive conduct. Each of the crimes is subject to the affirmative defense of self-defense. Before a defendant is required to present such a defense, however, it must be proven that he hurt someone, or tried to hurt someone. R.C. 2919.01 makes it a crime for a married person to marry someone else. He can prove the affirmative defense that the spouse disappeared for five years. R.C. 2913.03 criminalizes the use of a motor vehicle without the consent of the owner, but provides for affirmative defenses of reasonable mistaken belief. There are numerous other statutes which criminalize conduct, and then permit the defendant to justify or excuse or lessen responsibility for his conduct by proving some set of circumstances. In each of these crimes, however, the original criminal act is always, on its face, criminal.

In other words, it is facially wrong to hit someone, marry two people, or take someone s car without his consent. Some of these crimes are malum prohibitum; some are malum in se; but they are all malum. A state could not, however, make it a crime to engage in speech about sex, and shift the burden to the defendant to prove the speech was not obscene. Nor could it prohibit unlawful assembly, and force the defendants to prove there was no criminal conspiracy. In each of these examples, however, the conduct is essential innocent or constitutionally protected, just as carrying a concealed weapon is essentially innocent and constitutionally protected. Police are not only permitted to engage in the same activity on a wide scale, they are encouraged to do so. Moreover, since the vast majority of states provide a method for citizens to predetermine their right to carry a firearm, the vast majority of people who carry concealed firearms do so for innocent purposes.

So the issue is whether the state can punish innocent conduct absent proof by the citizen of noncriminal intent. Appellees believe it may not. The Court of Appeals agreed. The legislature cannot "validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt." Tot v. United States, 319 U.S. 463, 469 (1943). See also, Speiser v. Randall, 357 U.S. 513, at 523-525. Morrison v. California, 291 U.S. 82 (1934), also makes the point with sufficient clarity.

More recently, in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that it was unconstitutional for a State to disguise an element of an offense as a sentencing factor, and thereby relieve it of the obligation to prove each and every element beyond a reasonable doubt. The essence of the 2923.12 is that one is permitted to carry a concealed weapon for legitimate, defensive purposes, but not for offensive, criminal purposes. And by requiring the defendant to prove at trial that he had a defensive purpose, the state has essentially transferred proof of innocent intent to the defendant where it has no historical, logical, or moral reason for doing so.

Furthermore, none of the cases which permit the state to shift the burden of proof on some fact deal with a fact that could be predetermined. Self-defense, sanity, and provocation are all matters that arise suddenly, without a chance for studied decisions. Here, the interests claimed by the state can all be protected by the use of a permit system. The State of Ohio could tell people, in advance, whether they could carry a firearm. They have chosen not to do so. Instead, they say, You have the right to go armed in most circumstances. We won't tell you when or where. But if you feel the need, go ahead and try. If we think you are not prudent, however, we will arrest you, strip search you, try you as a felon, and if we win, you can go to prison. If you win, we can do it all over again next time we find you with a firearm.

When the Department of Agriculture wanted to know whether a food stamp ivestigator could carry a concealed firearm, they did not send him out into the field to be arrested and tried for a felony in order to get an answer. They requested the Attorney General to give them an answer. And he did. OAG 87-015. And they gave their investigator a badge. And he was protected from arrest. The private citizens of this state are entitled the same due process rights accorded the employees in the public sector.

PROPOSITION OF LAW NO. 8: R.C. 2923.12 and R.C. 2923.16 deny law- abiding citizens their inalienable rights which are protected under the Ohio Constitution.

In Preterm Cleveland v. Voinovich (1993), 89 Ohio App.3d 684, 691, 627 N.E.2d 570, the court explained the broad scope of the inalienable rights that cannot be unduly restricted by government: Section 1, Article I, Ohio Constitution, together with Section 2; Article I, Ohio Constitution (together originally contained in Section 1, Article VIII of the 1802 Ohio Constitution), make it quite clear that, under Ohio's Bill of Rights, every person has inalienable rights under natural law which cannot be unduly restricted by government, which is formed for the purpose of securing and protecting those rights, and that all governmental power depends upon the consent of the people. Thus, the Ohio constitutional provision is broader in that it appears to recognize so-called 'natural law,' which is not expressly recognized by the [federal] Bill of Rights or any other provision of the United States Constitution, although it is recognized in the Declaration of Independence. In that sense, [Section 1, Article I of] the Ohio Constitution confers greater rights than are conferred by the United StatesConstitution . . ..

In State v. Williams (2000), 88 Ohio St.3d 513, 728 N.E.2d 342, the Supreme Court stated that Article I, Section 1: . . requires other provisions of the Ohio Constitution . . . to give it practical effect. Article I, Sections 4, provides a fundamental constitutional right to keep and bear arms for defense and security that gives practical effect to the Article I, Section 1, provision that allows all men to defend life and liberty, and protecting property, and seeking and obtaining safety. These inalienable rights, then, which are greater than the right granted under the federal constitution, of all men to defend life by keeping and bearing arms for defense and security, cannot be unduly restricted.

Defense and security are two distinct concepts. While defense means the act of defending or the method or means of protecting oneself (Supp. 155), security means the freedom from fear or anxiety of attack (Supp. 155). Security is the preparation for protection from attack, while defense is the act of protecting from attack. Both concepts are protected under the inalienable rights granted to Ohio citizens under Article I, Sections 1 and 4. Those broad rights may not be unduly restricted by the government. But, the evidence in this case shows that law-abiding citizens are unduly restricted in the exercise of their inalienable rights.

Appellee Klein, for example, is a private investigator. In conducting his lawful business activities, he could get a license to carry an unconcealed firearm under R.C. 4749.06 and R.C. 4749.10. If carrying an unconcealed firearm were legal for private citizens, as Appellants contend, there would be no need for such a license for Klein. Even if granted a license, however, there is no way a private investigator can conduct a discreet investigation with an unconcealed handgun strapped to his waist. The person being interviewed might feel threatened by the unconcealed firearm making it impossible or impractical for Klein to perform his normal daily work assignments. T.p. 217-218, Supp. 54-55). On the other hand, how can Appellee Klein provide for his defense, and preserving his inalienable right to a feeling of security with an exposed firearm. An exposed firearm is capable of being taken by an assailant, causing potential injury to Klein in the process. Only by carrying a concealed firearm, without the fear of arrest and prosecution, can Klein exercise his inalienable right to be armed for his defense and security.

The same applies to Appellees Feely and Cohen. If they carry an unconcealed firearm, they will be arrested. (T.p. 400, Supp. 96). How can they exercise their inalienable right to carry a firearm for defense and security except by carrying a concealed firearm without the fear of arrest and prosecution? The trial court was correct in finding an inalienable right to carry a concealed firearm. The Court of Appeals was correct in affirming that decision.

PROPOSITION OF LAW NO. 9: Matters of credibility of witnesses are for the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. The City Appellants, for example, place great weight on the testimony of Franklin Zimring. They also cite, for example, testimony from a deposition of Dr. Mustard, testimony that was not admitted in the trial of the case. The trial court accepted the trial testimony of Dr. David Mustard as valuable and found the testimony of Franklin Zimring worthless. (Supp. 152). The Court of Appeals found this factual determination to be in accordance with law.

In Myers v. Garson (1993) 66 Ohio St.3d 610, 614-615, 614 N.E.2d 742, the Ohio Supreme Court stated: However, as we have often noted in the past, where the decision in a case turns upon credibility of testimony, and where there exists competent and credible evidence supporting the findings and conclusions of the trial court, deference to such findings and conclusions must be given by the reviewing court. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410, 461 N.E.2d 1273, 1276; and Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 10 OBR 500, 462 N.E.2d 407. In addition, this court has held that a reviewing court is not authorized to reverse a correct trial judgment merely because erroneous reasons were assigned as a basis therefor. Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275, 284, 29 O.O. 426, 430, 58 N.E.2d 658, 663. As this court observed in Seasons Coal, supra, 10 Ohio St.3d at 80, 10 OBR at 410, 461 N.E.2d at 1276: "The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.

Every single fact found by the trial court and incorporated into the Findings of Fact and Conclusions of Law was a result of the trial court s observations of the witnesses and the testimony. This Court may not substitute its judgment for which facts should be adopted. Rather, the question in this case is the application of the law to the facts as found by the trial court.

The Appellants claim that this Honorable Court should ignore the factual findings of the trial court concerning the compelling scientific analysis and testimony of Professor David Mustard and substitute the political opinions of Franklin Zimring for purposes of appeal. The position of the Appellants is contrary to established law. The weight to be given the evidence and the credibility of witnesses are primarily for the trier of fact to decide. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. In Simms v. Heskett (2000), Fourth District, 2000 Ohio App. LEXIS 4325, copy attached, the court succinctly explained the law concerning a trial court s evaluation of the witnesses: It is axiomatic that the weight to be given evidence and the credibility to be afforded to witness testimony are issues for the trier of fact. (Citations omitted).

The underlying rationale for affording such deference to the findings of the trier of fact (in this case, the trial court) is that the trier of fact is better able than an appellate court to view the witnesses and observe their demeanor, gestures and voice inflections, and use those observations in weighing the credibility of the proffered testimony. (Citations omitted). It logically follows then that the trier of fact is free to believe all, part or none of the testimony of each witness who appears before it. (Citations omitted). The trial court in this case simply afforded more weight to the testimony of appellee and his expert witnesses (as to the reason the building was sinking) than it did to the explanation given by appellant. This was within its province and we will not second guess its determination as to matters of weight and credibility of evidence.

Likewise, the trial court s determination that an individual qualifies as an expert will be overturned only for an abuse of discretion. State v. Williams (1983), 4 Ohio St.3d 53, 58, 148, 446 N.E.2d 444, 448.

During the trial of this matter, the court examined the qualifications, demeanor, and opinions of Franklin Zimring in his videotape trial deposition and found that he was merely a lawyer and gun control advocate who had opinions on gun policy that were not based on his own experience. Rather, the trial court found that Zimring s opinions were based primarily on reading some journal articles from various sources, such as Black and Nagin, which were not admitted in evidence or otherwise capable of being used as evidentiary support for his testimony. The trial court had the right to reject that testimony in its entirety.

The trial court did that and the decision to reject the testimony of Zimring as untrustworthy and biased is not a proper subject for appellate review. Although the Appellants and amici may wish that they had tried the case differently, or that the trial court had accepted are correct a different set of facts, they are bound by the trial court s findings of fact. Those facts determine this case.

PROPOSITION OF LAW NO. 10: Appellants who contend that a trial judge is biased are required to file a motion for disqualification under R.C. 2701.03, which is the sole and exclusive means to raise the issue of judicial bias. Otherwise, the issue is waived for appeal.

The City Appellants claim that the trial judge was biased and prejudiced in any number of ways. Any claim of bias by a trial judge must be raised in accordance with R.C. 2701.03.

In Jones v. Billingham (1995) 105 Ohio App.3d 8, 663 N.E.2d 657, the court stated: The chief justice of the Supreme Court of Ohio, or his designee, has exclusive jurisdiction to determine a claim that a common pleas judge is biased and prejudiced. Section 5(C), Article IV of the Ohio Constitution. See Adkins v. Adkins (1988), 43 Ohio App.3d. 95, 539 N.E.2d 686. We conclude that R.C. 2701.03 provides the exclusive means by which a litigant may claim that a common pleas judge is biased and prejudiced.

Accordingly, an appeals court is without authority to pass judgment on an appeal claiming bias and prejudice on the part of the trial judge and is without authority to void a judgment on that ground. Beer v. Griffith (1978) 4 Ohio St.2d 440, 377 N.E.2d 775. The failure to file the appropriate affidavit of disqualification with the Supreme Court and proceeding to judgment constitutes a waiver of any claim of bias and prejudice and cannot serve as a ground for appeal. In re Disqualification of Watson (1992), 74 Ohio St.3d 1237, 657 N.E.2d 1344.

Proposition of Law No. 11: R.C. 4749.06 and R.C. 4749.10 deny Private Investigators equal protection of the law. The Court of Appeals modified the ruling of the trial court only in the matter of the constitutionality of R.C. 4749.06 and R.C. 4749.10 as they apply to private investigators to prohibit them from carrying concealed firearms. The ruling of the Court of Appeals failed to take into account that regardless of any other right (statutory, fundamental or inalienable) it is a crime for an Ohio Licensed Private Investigator to carry a concealed firearm. The Appeals Court, at page 3, incorrectly stated: "The statutes . . . do not prohibit anything . . .."

To the contrary, R.C. 4749.10 states: "No . . . licensee . . . shall carry a firearm . . . in the course of engaging in the business of private investigations . . . unless all of the following apply: (1) The licensee . . . has successfully completed a basic firearm training program...."

R.C. 4749.13(B)(1) states: "No . . . licensee . . . shall: (1) Knowingly violate any provision of this chapter . . .."

R.C. 4749.99(B) states: "Whoever violates division (B) . . .of section 4749.13 of the Revised Code shall be fined not less than one hundred or more than one thousand dollars, imprisoned not more than one year, or both."

Therefore, a practicing, Licensed Private Investigator, without an UNconcealed carry license under R.C. 4749.10, who exercises his/her Constitutional right (not to mention his/her right to raise an affirmative defense under R.C. 2923.12 or R.C. 2923.6) to carry a concealed firearm under Article I, Section 4, of the Ohio Constitution is in violation of R.C. 4749.13. In other words, singling out Private Investigators for punishment for carrying a firearm, concealed or unconcealed, while exempting other Ohio Private Investigators licensed under Chapter 4749, is a violation of the Private Investigator's equal protection rights as guaranteed by Article I, Section 2, of the Ohio Constitution.

The requirement to have security guards (covered under the same statutes) undergo specialized training to carry an unconcealed firearm might be a reasonable requirement because carrying unconcealed firearms is risky inasmuch as the carrier is subject to snatch-and-grab thieves. In addition, security guards have limited powers of arrest and detainment not granted to Private Investigators. Only Private Investigators need a concealed gun for their own personal protection. Whereas security guards are empowered to protect people, property and make arrests, and an unconcealed gun might meet their purposes and allow them to perform their duties.

"...Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Justice Louis Brandeis, 1927.

 

III. Conclusion

Law-abiding citizens in Ohio have long suffered in fear of arrest under statutes that made them criminals for exercising their constitutional right to bear arms. Every time a law-abiding citizen walks out of the house, the law-abiding citizen knows the criminal element is armed. But that law-abiding citizen also knows that they may be the one arrested, not the criminal. Police agencies, such as the City of Cincinnati, are confused about whether the law-abiding citizen can carry a concealed firearm. Some police agencies, such as the Ohio Highway Patrol, ignore the law under the assumption that groundhog and coyote hunters are legion in this state. Some agencies always arrest; some agencies arrest by arbitrary decision. In the end, the law-abiding citizen is given no guidepost to determine if their conduct is illegal. And one mistake (see The Test, Supp. 178-183), and a conviction for a felony of carrying a concealed firearm means that the law-abiding citizen becomes the criminal and is forever barred from possessing a firearm again. Only the government employee with the permission of a superior is spared this burden. Making law-abiding citizens the criminal for exercising their constitutional right is the crime. It is not fair, it is not right, and it violates our Ohio Constitution. The Appellees request the Court to affirm the finding of unconstitutionality of R.C. 2923.12 and R.C. 2923.16.

__________________________________________ WILLIAM M. GUSTAVSON #0016674 Attorney for Appellees Casablanca Building 1011 Paradrome Street Cincinnati, Ohio 45202 (513) 621-4477 (513) 421-3043 FAX

_____________________________________ TIMOTHY SMITH #0032087 Attorney for Appellees 119 East Court Street, Suite 409 Cincinnati, Ohio 45202 (513) 632-5333 (513) 421-1890

 

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