Delaware County judge grants preliminary injunction against Columbus over unlawful gun ordinances

Delaware County judge blocks Columbus gun ordinance enforcement

Delaware County Common Pleas Judge David M. Gormley issued a ruling today (April 25, 2023) prohibiting the city of Columbus from enforcing its unlawful ordinances that would outlaw certain firearm magazines and implement gun-storage restrictions.

From the ruling:

... the plaintiffs' request for a preliminary injunction is granted. Defendant City of Columbus, as well as its officers, agents, representatives, employees, and the individual defendants, plus all other persons acting in concert with them or with knowledge of this order are enjoined, until further order of the court, from enforcing Columbus City Code 2303.05(D), 2303.05(E), 2303.14(D), 2303.14(E), 2323.11(N), 2323.11(O), 2323.191, 2323.23(E), 2923.23(F), 2323.32, and 2323.321.

This order binds not only the defendants but also their agents, employees, law enforcement officers, attorneys, and any other persons or entities in active concert with them who receive actual notice of this order whether by personal service or otherwise. The City of Columbus and the individual defendants are directed to notify their employees, agents, and any other persons associated or acting in concert with them about the terms of this order and to make their best efforts at all times to ensure that all those persons comply with the order.

This means the city of Columbus cannot enforce its unlawful and unconstitutional gun ordinances until the legal issue has run its course. And this should provide some relief to residents who have been facing a deadline of July 1 to get rid of magazines capable of holding 30 or more rounds.

This ruling is the result of a suit brought by the Buckeye Institute in Delaware County.

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"This is unlikely to be the end of this case," said Dean Rieck, Executive Director of Buckeye Firearms Association. "Columbus is likely to appeal. And we have ongoing litigation in Franklin and Fairfield Counties, as well as a separate case in Hamilton County.

"But this ruling should be welcome news to residents of Columbus. And it's a step in the right direction to unravel the mess created by Mayor Ginther, City Attorney Zack Klein, and Columbus City Council when they passed laws they knew for a fact were illegal and unconstitutional in Ohio."

Judge Gormley: City's decision to delay prosecution to July doesn't make case 'moot'

Gormley took issue with the city's assertion that because it had adjusted its ordinance to defer prosecutions to July 1, this case was somehow "moot."

He wrote:

The city's ban on large-capacity magazines is not a theoretical one. That ban has, in fact, been enacted, is in effect now, and will evidently be enforced on a date certain. ...

The risk of prosecution hanging over the anonymous plaintiffs may have been deferred for a few months, but the July 1, 2023 effective date for the city's enforcement efforts is fast approaching. And the latest version of the ordinance calls for persons holding large-capacity magazines to — before July 1, 2023 — remove those magazines from the city's geographic boundaries, sell the magazines to licensed firearms dealers elsewhere, or surrender the magazines to the city's division of police. ... Those choices are ones that the plaintiffs and others are directed by the ordinance to make now to comply with a ban that is in effect now.

ORC 9.68 renders city's ordinance 'unenforceable'

Gormley pointed to the constitutionality of Ohio Revise Code Section 9.68 and its authority on firearms legislation.

According to the plaintiffs, the Columbus ordinance conflicts with R.C. 9.68, which is a state statutory provision that "declares null and void" any ordinance or other regulation that imposes any firearms-related restrictions beyond those found in state or federal law. I agree.

He pointed to the Supreme Court of Ohio's 2006 decision in the Cincinnati v. Baskin case that led to the state law being enacted in 2007. ORC 9.68 appears to have abrogated that 2006 decision, he said, adding that the Supreme Court "has undeniably already rejected ... a home-rule challenge to R.C. 9.68."

He continued:

Also, the parties agree that Ohio law imposes no limitations of the sort that the Columbus ordinance has imposed on so-called high-capacity magazines and on the safe storage of firearms. R.C. 9.68 indicates, too, that statewide uniformity in the regulation of the "possession" and "storage" of "firearms, their components, and their ammunition: is now compelled by the State and that any firearms-related regulations "[e]xcept as specifically provided by" state or federal law are "null and void. ...

In light of the current wording of R.C. 9.68 and in light of the Supreme Court's earlier rejection of a home-rule challenge to that provision, I conclude that any limitations or restrictions in the Columbus ordinance that go beyond those embodied in state law cannot be enforced by the city.

Judge invokes Second Amendment, even though plaintiffs don't

Gormley pointed out that although the plaintiffs' case doesn't directly mention the Second Amendment, it still must be considered.

So even though the plaintiffs have not claimed that the Columbus ordinance violates the Second Amendment, their reliance on that amendment's right-to-bear-arms counterpart in our state constitution means that this and other Ohio courts must — in analyzing that state-constitutional claim — interpret (Article I, Section 4) in a way that protects the individual right to bear arms at least as much as the U.S. Supreme Court would protect that right under the Second Amendment. ...

And the U.S. Supreme Court explained last year that any Second Amendment challenge must focus on two things: the Amendment's text and the country's historical tradition.

David C. Tryon, director of litigation at the Buckeye Institute, commented after Gormley granted the organization's request for a preliminary injunction.

“Judge Gormley’s order vindicates and protects our clients’ rights and recognizes that The Buckeye Institute’s clients are likely to succeed in their claims that this ordinance conflicts with state law and violates the right to bear arms as set forth in the Ohio Constitution," he said in an April 25 post on the organization's website. "In granting the preliminary injunction, Judge Gormley recognized that Buckeye’s clients are already being harmed by the enforcement of the gun ordinance, which makes it a criminal offense to possess a 30-round magazine in the city of Columbus and dictates how firearms must be stored.”

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