2005: A Year in Self-Defense
By Ken Hanson Esq.
It is the end of 2005. A time to gather with family and loved ones and enjoy the season together. A time to reflect on the year’s accomplishments and failures. A time to resolve to do better in the coming year.
For me, as we look forward to a very exciting legislative year, it is a time to look at the predictions of the two sides of the concealed carry debate and examine how reality measures up to the hype.
I will defer to anti-gun crusaders to show the examples of the soccer mom shootouts, the fender-bender murders and the valuable uses of the media access loophole, and instead focus my efforts on the pro-gun predictions offered when Ohio first passed HB 12, Ohio's concealed carry law. The examples cited are drawn upon the first 18 months of the law being in effect.
I would like to apologize to the individuals involved in these examples, their families, and anyone impacted by the incidents. It is not my intent to re-open old wounds or to gain from your tragedy. However, it is critical that the public understand how well this law is working.
Compliance with the law
As with other states, Ohio’s concealed handgun license (CHL)-holders have proven themselves to be an above average group when it comes to abiding by the law. Revocation/suspension rates are extremely low. In fact, it is difficult for even this small number of suspensions/revocations to show a propensity towards lawlessness, because the revocation statistics don’t distinguish between a CHL being revoked for someone dying versus someone being convicted of a crime. So it appears that, as with all the other states before us, Ohio’s CHL-holders have been a law-abiding group.
Unfortunately, the one area where Ohio licensees do seem to find themselves on the wrong side of the law is with some of the poison-pill provisions of HB 12. Due to my work with concealed carry, I am often made aware of criminal cases throughout Ohio involving license-holders, and have represented a portion of these cases. Invariably, these fall into one of two categories. The first category is what I will broadly refer to as “application headaches.” The second is “carrying headaches.”
The application headaches almost always deal with convictions and the wording of Ohio law. Predominantly this involves someone with a sealed conviction. Someone with a sealed conviction in Ohio operates under the assumption that the conviction is “expunged” and no longer exists. The sealing of the record also automatically restores the person to any civil rights they lost as a result of the conviction. So these people are naturally answering “no” on the CHL application with regard to the sealed conviction. Unfortunately, Ohio appellate courts have unanimously ruled, thus far, that a sealed record is a disqualification. This can, of course, potentially subject someone to a felony charge for “lying” (falsifying an application).
Application headaches also include misdemeanor drug convictions, such as minor misdemeanor marijuana or misdemeanor paraphernalia. Again, Ohio law is pretty clear on this one when it comes to minor misdemeanor marijuana. The ORC literally says that it is not a conviction and need not be disclosed on any application. Similarly, most people assume that since paraphernalia is just a misdemeanor and not a felony, it is not a disqualification. As you have probably guessed by now, innocent mistakes are leading to charges of falsification on the application.
With regard to the carrying headaches, overwhelmingly where the Ohio CHL-holder is getting into trouble is with car carry and the plain sight provisions. I am adamant about the following: Plain sight in a motor vehicle, under Ohio case law, is a legal fiction and cannot be reliably complied with by a law-abiding citizen, no matter how well intentioned they are. Ohio Courts have ruled that a firearm in a motor vehicle can be simultaneously in plain sight for the purposes of a search warrant exception while being concealed for the purposes of concealed carry. Ohio’s plain sight requirement is a standing invitation for any traffic stop of a CHL-holder to turn into a felony arrest at the discretion of the arresting officer, and the entire case will boil down to the officer testifying that the handgun wasn’t plainly visible. I have personally represented people charged in these situations, and it really boils down to one thing and one thing only: The opinion of the arresting officer.
So it would appear that gun owner’s predictions have been accurate: HB 12 has numerous opportunities to create accidental felons of otherwise law-abiding citizens, and these criminal charges are serving no public purpose.
There was a good deal of acrimony over the need for the law, and the General Assembly was accused of knuckling under to a vocal micro-minority. As the establishment media and the gun ban crowd told it, no one needed/wanted this law. Again, I will defer to the anti-gun industry to produce their examples of someone obtaining a permit to go on a crime spree, or committing a crime of passion due to having a firearm readily at hand, as they predicted, and instead concentrate on the known examples of a CHL-holder acting in self-defense. As a disclaimer, I will state that these are just the examples I know of and could independently document - there might be others.
To repeat - it is not my intent to re-open old wounds or to gain from these tragedies. However, it is critical that the public understand how well this law is working. The following accounts are based upon public records or the permission of those involved.
- Ohio wrestled with the arguments against concealed carry reform for over a decade before finally passing HB 12. Criminals harvested a pillar of the community just one month prior to licenses finally becoming available in Ohio. When criminals attempted to rob Zane Wilson’s gun store in Clintonville, Zane, 78, a longtime proponent of firearm rights and a military veteran, managed to untie himself, grab a gun and return fire, wounding one of his assailants. Zane’s family asked that memorial donations be directed to Ohioans for Concealed Carry Inc. in recognition of their work to get Ohio’s CHL law passed at long last. The criminal’s motivation for the robbery was to obtain firearms. No concealed carry proponent was surprised that the criminals had not waited the extra month to obtain a CHL when the licenses became available, nor that the criminals did not want to bother with a background check or training. Sometimes things can be debated to death.
- Another pillar of the community, Bill Singleton was a small business owner in the city of Cleveland, and was licensed to carry a concealed handgun. Five days after the Cleveland Plain Dealer identified Mr. Singleton as a licensee by publishing the lists of CHL-holders as a “public service”, he was subjected to a very rare “ambush-style” robbery at his place of business. According to accounts, the bad guys began the robbery by simply opening fire on Mr. Singleton without warning. Mr. Singleton managed to return fire, killing one of his attackers, who had a lengthy criminal record.
- Mr. Pryor obtained his CHL due to previously being robbed. According to reports, Mr. Pryor was returning home when three masked gunmen, without warning, pulled up to his car and shot him three times. Mr. Pryor was able to return fire, hitting one of his attackers and causing the gunmen to flee. Published accounts credit his being able to return fire with saving his life. Mr. Pryor recovered from his injuries and was not charged.
- A mere three days after receiving his CHL, Habib Howard was working in his family-run business when an armed robber entered the store, demanding money and a 12 pack of beer. Habib managed to pull his handgun and fire 4 shots. The wounded attacker was later apprehended. Mr. Howard was not charged.
- Having been robbed in the past, Mark made the decision to obtain a CHL to protect himself. Facing two armed teenage attackers, Mark, a parent himself, agonized over the need to employ force against the young men. Eventually making the decision that any CHL dreads having to make, Mr. Hill exchanged gunfire with his attackers, wounding one of them. The two teens were arrested leaving the hospital after receiving treatment for their wounds. Mr. Hill was not charged, and according to published reports, he still agonizes over the being forced to decide between using force against some else’s children and not returning home to his own child.
- A small business owner and CHL-holder, Eugene Madill found himself facing four masked assailants while on a pizza delivery. The assailants held Eugene in an abandoned house at knifepoint and beat him while demanding money. Mr. Madill drew his handgun and fired three shots, ending the attack and allowing him to call police. The police found the body of a 16 year old near by, apparently one of the attackers. Mr. Madill was not charged.
- A small business owner in Toledo, Dean felt it was prudent to obtain a CHL due to long, lonely hours. When a robber entered the store and threatened to shoot his clerk, Dean didn’t hesitate to act. The bad guy fled after Dean fired two rounds into the getaway car’s front tire. Jumping into his own car with another patron, Dean followed the bad guy with a cell phone, leading police to the suspect, who was arrested. The Sheriff’s Deputy commented Dean handled the situation “extremely well.” Dean was not charged.
- Talk show host and business owner Cornell McCleary obtained a CHL, in part, due to his running a security company. In that capacity, Cornell found himself in a “mob situation” as ten men surrounded him and began to attack. Cornell drew his gun and fired, wounding two of the attackers. The remaining men fled into nearby apartments. Cornell, with 23 years in the security business, said of his attackers, “It is a new breed. They don’t need a reason.” Cornell was not charged.
- Perhaps emboldened by a rash of quick and easy motel robberies in the Columbus area, one armed robber made the mistake of his life when he walked into the Super 8 motel where CHL-holder Ramsey was working. When the robber showed his gun and demanded money, Ramsey drew his handgun and fired multiple shots into the bad guy. Police made an easy arrest of the repeat criminal, who later added a conviction of armed robbery to his record out of this incident, due to the fact that he never made it out of the lobby of the hotel. Franklin County prosecutors referred to the case as a “textbook” self-defense shooting and Ramsey was not charged.
- CHL-holder Dr. McAdoo found himself staring out his driver’s window at an irate driver in a road rage encounter. The other driver involved had left his own vehicle and approached Dr. McAdoo’s vehicle, threatening the Dr. with bodily harm. Dr. McAdoo drew his gun and defused the situation long enough for the police to respond to the scene. No shots were fired, and Dr. McAdoo was not placed on trial after the prosecutor completed an investigation.
- Unfortunately, not all stories are positive examples. Take the Al Rosa bar shooting in which Nathan Gale stormed a concert stage and began to shoot at unarmed, innocent civilians. Thanks to Ohio’s law prohibiting carrying in a bar, Roger, a CHL-holder and military veteran, had to stand 5 feet away and watch people get slaughtered while powerless to do anything. His handgun, which would have stopped this rampage of death promptly, was at home due to Ohio law. To add insult to injury, several victims have filed suit against the Al Rosa for having insufficient security. Due to Ohio law, Roger would be unable to bring a similar suit, since business owners are given immunity for claims from a CHL who is disarmed on their property.
To repeat, the above examples are just the ones I am aware of.
Eighteen months into the law, more than 64,000 licenses have been issued, and the list will continue to grow. So, as I sit here reflecting, the following is clear:
The proponent predictions are accurate. The law is working to protect law-abiding citizens, but the poison-pill provisions continue to needlessly expose the law-abiding, and only the law-abiding, to criminal prosecutions.
The proponent case is proven, the opponent predictions ring hollow, and it is time to make Ohio’s law more rational by stripping out the poison-pill provisions the opponents insisted upon.
HB 347 is a great start. Every day of delay in passing this bill is another day where the law-abiding continue to labor under provisions that can render them an accidental felon, or another day when someone who could have acted might find themselves in a situation where the poison-pills prohibited them from acting.
About the author:
Buckeye Firearms Association Legislative Chair Ken Hanson is a private practice attorney involved in civil and criminal firearms cases across Ohio. Ken is also the author of “The Ohio Guide to Firearm Laws.”