7 years too late: Columbus Dispatch finally discovers open carry isn't a viable self-defense option for Ohioans
By Chad D. Baus
"Ohioans already have the right to carry guns and other weapons openly but not concealed. Anyone who believes he is in danger can holster a pistol on his waist or tote a shotgun around wherever he goes." - Columbus Dispatch editorial, June 22, 2001
"I can cite you example after example of people [openly] carrying weapons in the City of Columbus. ...I never heard a single example [of someone being arrested.]" - Ohio Supreme Court Justice Evelyn Lundberg, Klein vs. Leis, et. al. oral arguments, April 15, 2003
In the days leading up to passage of Ohio's concealed carry law in 2004, everyone was talking about the fact that there is no law in Ohio prohibiting the practice of "open carry" (carrying a firearm in plain sight).
Despite warnings from pro-gun activists that attempting to openly carry a firearm would lead to harrassment or even arrest, gun ban extremists and their media allies repeatedly argued that no concealed carry law was needed, citing the ability of Ohio citizens to openly carry firearms with no training or licensure mandates.
In Klein vs. Leis, et. al., the Ohio Supreme Court echoed the CCW opponents' arguments, ruling that while Ohioans have a "fundamental, individual right to bear arms for self-defense", a 100 year-old legislative ban on concealed carry was Consitutional because the practice of open carry was allowed. The decision was the final impetus to passage of Ohio's new concealed carry reform law. Four days after the ruling was announced in September 2003, the first of nearly 20 Open Carry 'Defense' Walks was held. Several local and state officials, including then-State Senator and current Attorney General Marc Dann (D), participated in one of the demonstrations that occurred across the state.
Even though the potential trouble for persons who "open carry" has been well-documented over the course of several years, the Columbus Dispatch is just now discovering the problem, nearly seven years after the editorial quoted above smugly chided CCW proponents.
From a March 30, 2008 Dispatch story entitled "Openly carrying gun not a crime"
By Bill Bush
In the political tussle over Ohio's concealed-carry gun law, one fact seems to have been overlooked by many: You never needed a permit to carry a gun in public, and you still don't --- you just can't conceal it.
As long as you haven't been convicted of a felony, if you want to wear a pistol on your belt or walk around town carrying a shotgun, Ohio has no law against it.
But if you do, don't be surprised if you get some unwanted attention from police officers.
Open carry "overlooked"? Is that what Bush calls an editorial in his own newspaper on that very topic? Or numerous other articles and letters to the editor leading up to passage of Ohio's concealed carry law? (It's hard to believe that, at the very least, this reporter wasn't aware of his newspaper's 2001 editorial, since he copied a section quoted above in his second paragraph nearly word for word.)
It might be seven years too late, but at least the Dispatch finally recognizes there is a problem with trying to exercise the Constitutional right to bear arms for self-defense via "open carry":
Philip Turner, 30, discovered that in July when he walked from his Hilliard apartment to his parked truck wearing a gun on his belt. At the time, Turner worked protecting banks' ATMs as they were serviced and delivering diamonds to jewelry stores.
An undercover agent with the Ohio Investigative Unit -- the police agency that enforces the state's alcohol, tobacco and food-stamp laws -- saw the gun and quickly ordered him against his truck with his hands on his head.
"He came up and treated me like a felon for absolutely no reason at all," Turner said. "There wasn't even a suspicious action on my part to warrant him taking this action against me. Had I been out waving a gun around the parking lot, (then) yeah."
After being detained for about 30 minutes, and after Hilliard police arrived at the agent's request, Turner was released without charges. An internal investigation that concluded this week found that neither Agent Timothy Gales, who had stopped Turner, nor his partner, Betty Ford, did anything wrong.
However, it also revealed that Gales did not know it was legal for Turner to carry a gun openly, said Lindsay Komlanc, spokeswoman for the state Department of Public Safety. As a result, more than 100 agents in the unit are to attend a mandatory refresher course on Ohio's gun laws over the next couple of months, she said.
...Turner, who has a license to carry a concealed gun, said he was carrying his gun openly "because it's my right. I choose to exercise my right to protect myself." He doesn't know whether the two agents pulled their guns; he was instructed not to face them. The agents told investigators they didn't.
But it wouldn't be unreasonable for officers to draw their guns until they know what the situation is, said Sgt. Rich Weiner of the Columbus Police Division.
"The first thing we need to address: This man has a gun," Weiner said. "We're going to pull our guns.
"As a police officer, we also have the right to protect ourselves and protect the public, so we do have the right to disarm him momentarily. Now everybody is a little bit more at ease. We don't have a potential weapon being used against an officer or anybody else."
If your open display of a firearm is causing panic, you could be charged with inducing panic, Weiner said. If you carry it onto private property, you could be charged with trespassing, he said.
This is the exact problem plaintiffs' Attorney William Gustavson argued before the Supreme court was the reason why open carry did not suffice as a means of allowing Ohioans their Constitutional right to bear arms for self-defense on April 15, 2003.
I do think folks are concerned about being arrested. I think they're concerned about a situation where a police officer confronts them with a gun pulled. 'Get down on the ground, sir! Put your hands behind your back! Why do you have this gun!? What are you doing!?' And I think most folks know that's what would happen ifthey walked down the street with an exposed firearm.
Even one anti-gun Supreme Court Justice, Paul Pfeifer, acknowledged the problem during Klein vs. Leis, et. al. oral arguments that sunny Spring day in 2003:
If you walk down the street like some cowboy with a couple of six-shooters strapped on, cops would be getting calls from every one saying there's some nut walking around.
So why did it take the Columbus Dispatch so long to catch on?
Buckeye Firearms Association regularly receives inquiries on the subject of Open Carry in Ohio. There is obviously much confusion among the media, law enforcement agencies, and even Supreme Court Justices in Ohio regarding the open carrying of firearms, so perhaps the following information will help clarify Ohio’s law as it relates to citizens carrying firearms.
1. As a general matter of law, the right to bear arms is a fundamental, individual right guaranteed by Section 4, Article 1 of the Ohio Constitution.* This right, however, is not absolute, and is subject to regulation.
2. Beyond the rights granted by the Ohio Constitution, Revised Code § 9.68 provides that, unless otherwise prohibited by State or Federal law, any person "may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.” Specifically included in this statute is the right to openly carry a firearm. See Revised Code § 9.68(C)(1). There is no requirement that the person first get a license, get permission or show any need prior to openly carrying a firearm.
3. Officer safety must always be a paramount concern and goal for peace officers. However, officers should not consider openly carrying a firearm as per se suspicious or criminal conduct. Openly carrying a firearm does not automatically equate into a Disorderly Conduct (R.C. § 2917.11) or Inducing Panic (R.C. § 2817.31) charge. To take this position would be tantamount to taking a position that a person may not exercise their statutory or constitutional rights without risking constant "Terry stops” or police arrest. This position is obviously problematic. Instead, the officer or the dispatcher needs to look at the totality of the circumstances. Is there reasonable, articulable suspicion that criminal conduct is occurring? What are the facts and circumstances, beyond the mere presence of a firearm, that indicate it is reasonable to suspect criminal activity?
Simply reacting to every single "man with a gun” situation as an automatic "Terry stop” or felony stop will clearly have a chilling effect on the exercise of these rights by citizens, thus potentially opening the officer and the department up to civil liability. Officers and dispatchers should carefully question informants when being dispatched on these types of calls to verify what allegations of further suspicious or criminal conduct, if any, the suspect is engaged in. In a non-dispatch or informant situation, where the officer directly observes the conduct of the suspect, the officer should be ready to articulate what factors beyond the mere carrying of the firearm prompted the official police interaction with the suspect.
4. Nothing in Ohio’s concealed carry law requires a license holder to carry their firearm strictly concealed. Rather, Ohio’s concealed carry law is mostly a series of exceptions to the existing criminal statutes. For instance, see Revised Code § 2923.12(C)(2). The main statute, § 2923.12(A)(2), prohibits carrying a concealed handgun, and section (C)(2) simply states that the main statute does not apply to someone with a Concealed Handgun License. While some states do require strict concealment by their license holders, Ohio has not taken this approach. Further, there is nothing in Ohio’s concealed carry law that requires a license holder to forfeit their constitutional and statutory right to bear arms in order to obtain a Concealed Handgun License. Thus, a person who has been issued a Concealed Handgun License may still openly carry a firearm if they chose to do so, provided all other laws are observed.
5. Nothing in this article should be construed to mean that someone may openly carry a firearm where the person is otherwise prohibited from carrying a firearm. For instance, if the person is under firearm disability pursuant to Revised Code § 2923.13, the person may not openly carry a firearm, as the person cannot legally possess a firearm. Further, if the area where the open carry occurs in a prohibited area, such as a courthouse as provided for by Revised Code § 2923.123 or in a car as provided for by Revised Code § 2923.16, then the person may not openly carry the firearm.
* See Klein v. Leis, (Ohio 2003) 99 Ohio St.3d 537, 539 and Arnold V. Cleveland, (Ohio 1993) 67 Ohio St.3d 35, 46.
There is still very much a need for education on the matter of open carry in Ohio, because there is still very much a need to open carry.
For instance, Ohio law restricts concealed handgun license (CHL)-holders from carrying concealed inside publicly-owned buildings, such as highway rest stops. And although the law does NOT restrict open carry in these places, the signs that the state Attorney General's office provides for state facilities erroneously state that firearms are prohibited "anywhere on these premises", and do not differentiate between openly-carried and concealed firearms.
Until the Ohio legislature modifies the mandatory language on these signs, and as the following 2004 email from the office of the Ohio Attorney General notes, potential rest stop rape or robbery victims will be forced to make the choice between self-protection and the potential for false arrest:
"While it is legal for a person to carry a weapon openly some law enforcement agencies have said such actions may prompt an arrest for inducing panic, a misdemeanor.
It is impossible to say if any particular officer will cause problems for any particular person at any particular time, but carrying openly in a rest area – while within the bounds of law – may still result in difficulties.
Director of Constituent Services
Office of Attorney General Jim Petro
Despite the claims of Dispatch reporter Bill Bush, Ohio gun owners have long been aware that open carry is a legal, if risky, option for exercising their Constitutional right to bear arms for self-defense.
Despite the many uncertainties, open carry is an important stop-gap measure for Ohioans who have no other means of protection or who have not yet obtained a CHL or temporary emergency license.
ANY attempt to limit open carry in Ohio, a practice previously endorsed by everyone from the Million Mom March to the Ohio Coalition Against Gun Violence, should be met met with vigorous opposition.
Chad Baus is the Buckeye Firearms Association Vice Chairman and Northwest Ohio Chair.
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