Clyde is sued over ban on guns in parks

August 13, 2004
Toledo Blade

CLYDE - Ohioans for Concealed Carry has sued the city of Clyde for its refusal to rescind a May council decision outlawing concealed weapons in city parks.
Sandusky County Common Pleas Judge Harry Sergeant granted a temporary restraining order yesterday to prohibit the city from enforcing the ordinance, said Ken Hanson, chief counsel for the pro-gun group.

Clyde Law Director Barry Bova said he had not been notified of the restraining order, and Judge Sargeant could not be reached for comment.

But Mr. Bova said the city hadn't been enforcing the ban anyway.

Regardless, Mr. Hanson said the passage of the ordinance ignored state law and that the city is going to cost its constituents thousands of dollars to fight a suit it won't win.

"The state of Ohio has already said that they are allowed in parks," Mr. Hanson said. "No one would seriously argue that someone with an Ohio driver's license couldn't drive on Clyde's streets."

Mr. Bova said he was made aware of the suit yesterday and expects to be officially served with the complaint today. He said the city didn't intend to deny anyone his or her right to carry a concealed weapon as permitted by the state in April.

"We felt that there may be a safety issue with people carrying concealed weapons in parks," he said. No one has been arrested under the ordinance nor have any signs been posted in the parks.

"They want to prevent us from eventually enforcing the statute," he said. "We're not totally surprised that it happened."

Mr. Hanson said that city officials have ignored his group's letters, e-mails, faxes, and phone calls for months. Two weeks ago, the group abandoned its efforts to contact the city and decided to seek relief in Sandusky County Common Pleas Court, he said.

Mr. Hanson said the city's safety concerns are unfounded, because there is no evidence that concealed weapons in parks are dangerous. "They've never provided any legal reasoning as far as why they're right and we're wrong," he said.

A spokesman for the Ohio attorney general's office said the enforcement of local ordinances such as Clyde's can be challenged in court.

"Our interpretation of the law is that [licensed individuals] can carry in a park," Kim Norris said.

State Sen. Ray Miller (D., Columbus) introduced a bill in May to let local communities ban the carrying of concealed weapons in parks and recreation areas. The state Senate has taken no action on the bill.

Mr. Hanson said his group used a letter campaign to convince the western Ohio village of Arcanum to change an ordinance that banned concealed handguns in parks. He hopes a court victory against Clyde will send a message to other municipalities.

"The law is squarely on point and clear," he said. "A municipality cannot prohibit what the state allows."

Toledo prohibits guns in its 144 parks. The city relies on its home-rule authority for the power to regulate activities that take place in city parks, rather than specific ordinances with criminal penalties banning the weapons, said Barb Herring, city law director.

NOTE: Clyde Law Director Barry Bova claims the city never posted signs, but a photo of a sign posted in the Clyde Community Park appeared in the July 14 issue of the Fremont News Messenger. The photo can still be viewed on the newspaper's website today. OFCC provided a copy of the photo in our website news story about the filing.

Click on the "Read More..." link below for coverage from the Fremont News Messenger.

August 13, 2004
Fremont News Messenger

Judge bars Clyde's gun ban

As anticipated, the disagreement between the City of Clyde and Second Amendment advocates has landed in court, and Clyde has lost the first battle.

Sandusky County Common Pleas Court Judge Harry Sargeant Thursday granted a temporary restraining order, barring the city from enforcing a ban on legally concealed weapons in city parks.

The judge's action was in response to a motion filed on behalf of Ohioans for Concealed Carry Inc., based in [Cleveland], Ohio, and James J. Stricker Jr. of Gibsonburg by L. Kenneth Hanson III, general counsel of Ohioans for Concealed Carry Inc.

The motion seeks to have the city's ban declared unconstitutional and to prevent the city from enforcing it. The action names the City of Clyde and various Clyde officials, including City Solicitor Barry Bova, Mayor Dan Giebel, City Manager Dan Weaver, council members and Sandusky County Sheriff David Gangwer.

The court action had been anticipated since city officials said they would not rescind the ban despite demands from the advocacy group.

The Ohio concealed carry law, which went into effect this year, lists places, including public buildings, where concealed weapons may be banned. The law does not, however, list public parks as being among those places where bans are permitted.

Several cities discussed ordinances to ban concealed weapons in parks. While many cities have decided against formal action or have rescinded such ordinances, Clyde has been firm that the ban is legal, with officials noting that Clyde is a charter government.

"I think we all feel we're on firm ground with (Ohio law) and with our powers as a home-rule government," Weaver said about a week ago. "I don't see us making any moves at this point. Let a judge make the decision if that's what it comes to."

It has.

Efforts to reach Weaver this morning were unsuccessful. An employee answering the phone at City Hall said the city would have no comment on the suit or whether signs regarding weapons have been posted in city parks.

In issuing the temporary injunction, Sargeant ruled:

"Defendants, their agents, officers and employees, are restrained from any enforcement actions of any nature against holders of a license to carry a concealed handgun issued under (Ohio) Revised Code Section 2923.125, 29223.1213, or any concealed carry license issued by a state that has entered into a written reciprocity agreement with the Attorney General of Ohio."

The judge said that within 24 hours after the motion is served on defendants, all signs banning legally concealed guns at city parks must be removed.

The injunction order is in effect for 13 days or until further court action.

In arguing for the rescinding of the law, Ohioans for Concealed Carry said that the city's position that its home rule gives it the power to enact such a ban is misplaced.

In a letter to Clyde in July, Hanson quoted the Ohio concealed gun law as saying, "No municipal corporation may adopt or continue in existence an ordinance and no township may adopt or continue in existence any resolution, that is in conflict with those sections, including, but not limited to, any ordinance or resolution that attempts to restrict the places where a person possessing a valid license to carry a concealed handgun may carry a handgun concealed."

Ohioans for Concealed Carry Inc. is a nonprofit corporation that has among its goals the education and training of the public with regard to Ohio's firearms laws, including the concealed carry law.

Clyde officials and others have said they are working with state representatives to amend the law to eliminate what they see as a loophole in the restrictions included in the measure.

State Sen. Ray Miller, D-Columbus, introduced a bill in May to allow local communities to ban the carrying of concealed weapons in parks and recreation areas. No action has been taken on the bill to date.

Related Story:
Fremont News Messenger applauds passage of illegal ordinance