Supreme Court Strikes Down City Ordinance Banning Guns in Public Parks

The good news is, we won. The bad news is that three Ohio Supreme Court Justices earnestly believe that government should have the same rights as an individual citizen, and that carrying a gun is no different than leash laws or drinking in a park.

Ohio Supreme Court Opinion Summaries

The Supreme Court of Ohio held today that a Clyde city ordinance banning possession of firearms in municipal parks is unconstitutional because it conflicts with a general state law that permits licensed individuals to carry a concealed weapon on any public property other than at locations specified in the state statute. The Court’s 4-3 decision was authored by Justice Terrence O’Donnell.

In January 2004, the General Assembly enacted R.C. 2923.126, a state law allowing persons who meet certain qualifications and obtain a license to carry a concealed firearm anywhere in Ohio other than in excepted locations enumerated in the statute. In uncodified language adopted as part of the concealed carry bill, the legislature declared that its purpose was to adopt a general and uniform regulatory scheme for the concealed carry of firearms in all parts of the state. In adopting that scheme, the legislature stated that it intended to preempt the future adoption or enforcement by any Ohio municipality or political subdivision of any local ordinance that conflicted with state law by prohibiting the carrying of a concealed weapon in a location where concealed carry is permitted by R.C. 2923.126.

In June 2004, the Clyde City Council enacted a municipal ordinance that prohibited any person within the confines of any city park from possession of a deadly weapon. The ordinance expressly included in its weapons ban persons who were licensed to carry a concealed firearm “pursuant to R.C. 2923.125.” In August 2004, Ohioans for Concealed Carry (OCC) filed suit in the Sandusky County Court of Common Pleas seeking a declaratory judgment that the Clyde ordinance was void and unenforceable because it was in conflict with R.C. 2923.126.

While the Clyde case was pending, the Sixth District Court of Appeals in Toledo v. Beatty upheld a Toledo city ordinance banning guns from city parks. Citing Beatty, the trial court entered judgment in favor of Clyde, affirming the enforceability of its ordinance. OCC appealed. While that appeal was pending, the legislature adopted new legislation, H.B. 347, reaffirming its intent to enact a statute that would “provide uniform laws throughout the state” regulating the concealed carry of firearms and explicitly stating that Ohioans have a fundamental constitutional right to possess a firearm where such possession is not expressly prohibited by the U.S. or Ohio constitutions or by a state or federal law. In light of the adoption of H.B. 347, the 6th District abandoned its previous holding in Beatty, reversed the ruling of the trial court, and invalidated the Clyde city ordinance as in conflict with a “general law of the state.”

Clyde sought and was granted Supreme Court review of the appellate court ruling.

The majority in today’s decision, rejected Clyde’s claim that the challenged ordinance was a valid exercise of the city’s “home rule” powers granted by Section 3, Article XVIII, of the Ohio Constitution, and affirmed the 6th District’s holding that the local ordinance is unconstitutional because it conflicts with a general law of the state.

In arriving at that conclusion, Justice O’Donnell analyzed the city ordinance and the state statute under tests established by prior Supreme Court decisions. The majority held that: (1) The Clyde ordinance is not an “exercise of local self-government” affecting only the internal affairs of the city but is rather “an exercise of police power” that establishes a public safety regulation also applicable to non-residents using the city’s parks; (2) R.C. 2923.125 meets each of the four criteria for a statute to qualify as a “general law” set forth in the Supreme Court’s 2002 decision in Canton v. State; and (3) The Clyde ordinance is “in conflict with” R.C. 2923.125 because it prohibits conduct (i.e. possession of a gun by a person licensed to carry a concealed weapon in a public park) that is permitted by the state law.

Clyde specifically claimed that R.C. 2923.125 is not a “general law” subject to uniform statewide application because it allows owners of private property to bar concealed weapons but denies public entities the same option. In the majority opinion, Justice O’Donnell wrote: “The distinction between private and public property merely reflects that private landowners can restrict access to their property in many ways public owners cannot. ... There is a distinction between public and private property. A private landowner is the sole possessor of private property. ... On the other hand, public property is owned by the taxpayers and is accessible to all. If there were no distinction made between public and private property as the dissent suggests, then a municipality could in the future choose to expand the prohibition from public parks to public sidewalks and roadways, and eventually to all public property. We therefore conclude that the public/private distinction does not affect the uniform application of this statute.”

The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Chief Justice Thomas J. Moyer entered a dissent, joined by Justice Judith Ann Lanzinger, in which he disputed the majority’s holding that R.C. 2923.125 meets the requirement set forth in Canton v. State that in order to be a “general law” a state statute must “operate uniformly throughout the state.”

He wrote: “Given the exception for private property owners, the general rules on where a person may carry a concealed handgun fluctuate depending on who owns the property at issue ... The different treatment of public and private property is patently arbitrary and unreasonable; it affects one class of land solely on the basis of ownership, which has little to do with the relative safety of allowing concealed handguns on a particular type of property ... Given the arbitrary and unreasonable distinction between public and private landowners, the fact that the law is subject to the will of private landowners, and the fact that the statute fails to meet its stated objective of establishing uniformity in its designation of those places in which persons may carry concealed handguns, I would hold that R.C. 2923.126 is not a general law and that it therefore does not take precedence over Clyde Ordinance 2004-41.”

Justice Paul E. Pfeifer entered a separate dissenting opinion stating that the 2004 amendments to the state concealed carry statute are unconstitutional under the Equal Protection Clause: “There is no rational basis to distinguish between private and public property owners in regard to their statutory ability to prevent persons from carrying firearms onto their property. Clyde owns its municipal park. Is there any reason why the owner of this property, where families gather and children play, should be forced to allow people with guns to enter, while the private owner of a public space such as a shopping mall can bar from entry any gun-carrying citizens?”

2007-0960. Ohioans For Concealed Carry, Inc. v. Clyde, Slip Opinion No. 2008-Ohio-4605.
Sandusky App. Nos. S-06-039 and S-06-040, 2007-Ohio-1733. Judgment affirmed.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Moyer, C.J., and Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-4605.pdf



Analysis of Dissent:
The Volokh Conspiracy - Arbitrary and Irrational to Distinguish Private Property from Public Property?



Related Media coverage:
Associated Press - Ohio court strikes down ban on guns in parks

The Ohio Supreme Court on Thursday struck down a city law that banned people from carrying concealed guns in public parks, saying it conflicts with a state law that established a uniform policy on firearms.

In a 4-3 decision, the court said the city of Clyde's home-rule powers don't allow it override the 2004 state law that allowed people to get a permit to carry concealed weapons in many places.

The city, about 40 miles southeast of Toledo, complained that the state gun law allows owners of private property to ban concealed weapons but denies public entities the same option.

Writing for the majority, Justice Terrence O'Donnell said there's a distinction between private and public property.

"Public property is owned by the taxpayers and is accessible to all," O'Donnell wrote. "If there were no distinction made between public and private property as the dissent suggests, then a municipality could in the future choose to expand the prohibition from public parks to public sidewalks and roadways, and eventually to all public property."

A message seeking comment was left for attorney John McDonald, who represented the city of Clyde.

...Ohio law bans concealed weapons from most public buildings, including stadiums and arenas but not parks.

Cleveland Plain Dealer - Cities can't ban guns from parks, Ohio Supreme Court rules

Cities cannot ban firearms from their public parks, a deeply divided Ohio Supreme Court said in a ruling Thursday that could blow away gun ordinances around the state.
In a 4-3 decision, the court upheld an appeals court ruling that had struck down the city of Clyde's 2004 ban on guns in its parks because it conflicts with the state's multifaceted concealed-carry law. Clyde is southwest of Sandusky.

The ruling not only eliminates gun bans in Independence and Cleveland Heights parks but also threatens several Cleveland gun restrictions and all but kills further efforts by cities to trump or challenge the 4-year-old state law.

"The main impact is that it is going to restrict municipalities, city councils and so forth from restricting the rights of Ohio citizens who carry concealed weapons in public areas," said Patrick Lewis, a Cleveland attorney and member of the conservative Federalist Society, who was not involved in the case.

...The question for the court was whether the concealed-carry law was meant by state legislators to be applied evenly -- from the Ohio River up to Lake Erie and everywhere in between.

The court decided that it was, dismissing Clyde's argument that it was exercising "home rule" -- a state constitutional provision that allows municipalities to approve, in the interests of citizens, ordinances that conflict with state rules.

...Independence passed a law two years ago banning concealed weapons in city parks. Law Director Gregory J. O'Brien said the council worried what might happen at a children's sporting event if park-goers were carrying guns.

"At times people's emotions get the better of them," he said. O'Brien added that he will make sure the city is in compliance.

John Gibbon, Cleveland Heights' law director, said the ruling was disappointing.

...Gibbon said he would explore whether the city might pass a regulation that would not conflict with the ruling.

"We'd certainly like to keep guns out of parks," Gibbon said.

Gun-rights groups cheered the decision.

"I believe the only thing a local government can do today in respect to a firearm is zoning restrictions on where a firearm range and a firearm retail store can be," said Jeff Garvas, president of Ohioans for Concealed Carry, which won the lawsuit. "That's it."

...The ruling drew varied responses from Cleveland-area residents.

"People should be able to carry guns wherever they like, as long as they're registered and within the limits of the law," Mike Marx, 42, of North Royalton, said while eating lunch at Lakewood Park. "Parks, public places -- if someone feels the need, they should have one."

Across the table, Lisa Herhuth, 28, had the opposite view. "I don't believe anyone should carry guns at all," the North Olmsted resident said. "I don't want to see them in public places or parks, either, especially where children are playing."

Sisters Pat Cichowicz and Edna Orgill, taking a brisk stroll along Lake Erie, were torn.

Cichowicz, 61, said that she would never carry a gun but that she can understand why some people may feel uneasy in any park. Orgill, 68, said authorities need to crack down on illegal possession of guns.

The Ohio attorney general's office argued in favor of the legislature's right to impose a uniform law on everyone, said Stephen Carney, deputy solicitor.

Carney wondered if Clyde had won, what would have stopped a city from banning concealed gun carriers from public sidewalks.

"Even though some things are left for the cities to decide for themselves, there are times when the General Assembly can decide for the entire state," he said.

And if a person doesn't like it, Carney said, "anyone that wants changes is going to have to go lobby the legislature. That's who they need to talk to."

Columbus Dispatch - City gun ban trumped - State concealed-carry law takes priority, Ohio Supreme Court rules

The state law giving Ohioans the right to carry concealed weapons, even in parks, overrules a city's ability to regulate firearms, the state Supreme Court said yesterday in a ruling that wipes out local gun ordinances.

The court's 4-3 decision struck down a Sandusky County city's ban on firearms in municipal parks, but it also is expected to invalidate assault-weapons restrictions in other cities, including Columbus and Cleveland.

The majority of justices said lawmakers were within their rights in 2004 when they stripped away dozens of local gun ordinances -- including the assault-weapons bans in Ohio's largest cities, a registration requirement in Cleveland Heights, a waiting period for purchases in Dublin and a trigger-lock requirement in Akron -- in favor of a statewide standard.

As the state law drew multiple challenges, lawmakers passed another measure in 2006 reaffirming their intention to have a uniform statewide policy on firearms. Then-Gov. Bob Taft vetoed the law, but the legislature overrode him.

"This has basically vindicated the legislature's efforts and ours, which were to make gun laws consistent statewide," said Jeff Garvas, president of the grass-roots group. "There's no way a city can pass a local gun law, which is an exercise of police powers, and not skirt this decision. It's not just parks."

Leaders in many cities had argued that they needed tougher gun restrictions to deal with factors specific to urban living, such as high population density and gang violence.

...Like Cleveland, Dayton and Toledo, Columbus passed an assault-weapons ban but has not been enforcing it, pending the outcome of the Supreme Court case.

"This puts a pretty good crimp on what the city can do on the regulation of firearms," said Columbus City Attorney Richard C. Pfeiffer Jr., a former state lawmaker. "We believe in home rule, but four votes (on the Supreme Court) win every time."

He said prospects for Columbus upholding its assault-weapons ban appear "pretty dim."

Unlike Columbus, Cleveland has filed legal challenges to the statewide gun law. City officials there did not respond to questions about whether they plan to drop those challenges.

Rep. James Aslanides, R-Coshocton, the sponsor of the concealed-carry law, said a statewide standard is necessary because gun owners can't be expected to navigate a hodgepodge of local regulations as they travel from city to city. He also said there's good reason to allow guns in parks.

"Parks are places where people particularly need to be able to defend themselves, because we don't want users of a park to be victims," Aslanides said. "As long as the criminal knows that potentially someone could have a gun in a park to defend themselves, the intent is to deter that crime. As a result, we'll all be safer in parks."

The Ohio Supreme Court ruling is the second high-profile court victory in three months for gun-owners in the state. In June, the U.S. Supreme Court struck down a handgun ban in the District of Columbia, declaring that gun ownership is a fundamental American right under the Second Amendment.

Salem News - Parks already in line with court’s concealed carry ruling

When it comes to concealed weapons, Salem parks are within Ohio law.

Salem Parks Director Steve Faber said licensed concealed carry permit holders are allowed to carry their firearms in Salem parks.

Last week, the Ohio Supreme Court with a 4-3 decision struck down a ban on carrying such weapons that was passed by Clyde, a Sandusky County city, shortly after the Ohio General Assembly first instituted the concealed carry measure.

Faber said the city had discussions about the concealed carry law when it was first passed in 2004 and was told that it could not ban concealed carry permit holders from carrying their guns in city parks.

...Faber said he couldn't say whether individuals have carried concealed weapons in Salem's parks because so long as it isn't necessary for them to use their weapon and they follow the law nobody would ever know.

...Bob Clutter of Leetonia, a local sportsman, said, "Towns, townships and municipalities should not be allowed to override the law." Clutter also said he believes the law should be uniform across all communities in Ohio.

Sandusky Register - Gun ban lifted by Ohio Supreme Court

"I'm somewhat disappointed," said Clyde city manage Dan Weaver. "Once again we think the court took away some more home rule power."

Weaver added that he was not surprised by the decision.

"Money and special interest groups win out, and local government loses," he said. "When parents see people carrying guns at their kids' baseball games and they call the police and get all upset, we won't be able to do anything about it."

Toledo Blade - Court OKs guns in public parks; Clyde ban ruled in conflict with Ohio concealed-carry law

This decision is also likely to affect a Toledo park regulation that the court described as “strikingly similar” to Clyde’s ordinance as well as bans passed in other cities such as Cleveland. A beneficiary of timing, Toledo’s ban had been upheld in the courts before the General Assembly enacted a follow-up law that flatly prohibited local governments from enforcing gun laws more restrictive than federal or state law.

“The General Assembly could not have been more direct in expressing its intent for statewide comprehensive handgun-possession laws,” wrote Justice Terrence O’Donnell for the majority.

...[John Madigan, Toledo’s general counsel said ] “We’re not going to charge people for that park violation. But if someone doesn’t have that permit, he’ll be charged just like in the old days.”

Toledo’s ordinances remain on the books, however, and the city is placing its bets with yet another case in which Cleveland is challenging the broader prohibition against stricter local gun laws.

Jeff Garvis, founder of Ohioans for Concealed Carry, said the organization will use this Supreme Court ruling to try to have the Cleveland case dismissed.

“This [decision] is going to have statewide impact on more than just parks,” he said. “The original challenge was narrow, but the court just basically said you can’t pass a local police power that conflicts with Ohio’s gun laws.”

Other media outlets, such as the Dayton Daily News, made short mentions of the ruling, essentially mirroring the AP story.

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