The Mentel(ly) challenged
By Ken Hanson Esq.
I read with stunned disbelief the story about the large scale bar shooting that happened in Columbus on August 5, 2005.
For those that missed the coverage, two shooters entered into a bar in Columbus, the ironically named Friendly Bar and Grill, and opened fire, striking 6 patrons with some of the reported 30 shots fired from what were reportedly semi-automatic pistols. One of the patrons has since died. No arrests have been made as of the writing of this story. If you have any information, call Crime Stoppers.
While it is never appropriate to find benefit from human tragedy (unless, of course, you are a gun grabber, then it is apparently OK to walk over whatever bodies necessary on the way to your goal), I thought this would be a great time to point out the absurdity of Columbus City Councilman, and presumptive Mayoral candidate, Mike Mentel’s assault weapon ban. Most people have heard of this ban, thanks in no small part, to it costing the City of Columbus tens of millions of dollars in lost revenue when the the NRA pulled their convention out of the city.
However, in talking with coworkers and friends, it became apparent that no one had actually read the text of the ban. “Doesn’t it just ban machine guns?” was a common question. These same people are also shocked to learn that any prosecution under this ordinance is highly unlikely, as I am about to explain.
So how does this get us to the Friendly Bar and Grill? Simple, your semi-automatic pistol is an “assault weapon” under the ban. The Columbus Code, at 2323.11(G)(3)(b) defines an “assault weapon” as any semi-automatic pistol “Originally designed to accept a detachable magazine with a capacity of more than twenty rounds.” That’s right, it isn’t a typo.
Anyone who has even the most basic understanding of firearms understands that ANY semi-automatic pistol that takes a detachable magazine is designed to accept the detachable magazine, regardless of the number of rounds it holds. The gun could care less how many rounds are in the magazine, as long as the outer form of the magazine and the magazine notch are to spec, the magazine could hold 1 round or 100 rounds as far the gun is concerned. You ever see a snail drum for a WWII Luger? As originally designed, it accepts a magazine holding more than twenty rounds. Yep, this century old collector’s piece is now an assault weapon in Columbus.
Same, obviously, with any other semi-auto handgun with detachable magazine, modern or otherwise. And here I just sold my reproduction black powder revolver, darn the luck. Talk about a menace to society, that gun nearly killed a dozen people with one shot. Of course, that was when I set the ground on fire at the range from the powder flash.
It gets even worse with rifles and carbines, where the definition drops the “originally designed for” and uses instead “capable of accepting” 20+ round magazines. (Belt-fed rifles appear to still be ok. Pffft.) This, of course, bans every single center fire rifle that accepts a detachable magazine. As a historical aside, to show you the futility of these definitions, the AR15, universally hated among gun grabbers, went through its first decade with 20 round magazines, as originally specified by Eugene Stoner. Same, I believe, with the M1 carbine and the M14, M1A etc. So with this Mentel Image it is arguably the actions of after-market vendors decades later that turn these guns into banned death machines, not the original design or function of the gun. Funny (not really.)
So, applying this definition to the firearms almost certainly used in the (not so) Friendly Bar and Grill, this horrendous shooting almost certainly was “caused by” assault weapons. Darn the luck, if it had been just a week later, I’m sure these guys would have been downtown dutifully registering their “assault weapons”, rather than shooting up a bar with them.
Had it been a week later, what would have happened to them under the Mentel Ban, you ask? Nothing.
Columbus, like any other city in Ohio, may only pass misdemeanor ordinances. Because of this, there are three important reasons why this ordinance is as likely to punish a criminal in the coming year as it is for the Bengals to win the Super Bowl. These three reasons are 1.) Crimes of similar import, 2.) Mandatory concurrent time for misdemeanors, 3.) Double Jeopardy.
As the Ohio gun owner is well aware, pretty much ANY gun crime is a felony in Ohio. This is where mandatory concurrent time comes into play. Looking at the Friendly Bar and Grill, you will be reassured to learn that it is a felony for one human being to shoot at another human being, even in Columbus. Furthermore, it is a felony for these guys to have even had firearms inside the bar.
Given that at least two felonies were committed (probably many more, since 6 victims can lead to multiple counts), mandatory concurrent time would come into play. In Ohio, if a bad guy is convicted of both a felony and a misdemeanor for the same actions, the penalty imposed for the misdemeanor must, by law, be concurrent to the penalty for the felony. Our Friendly shooters would be facing mandatory prison for gun specifications, plus presumed prison for the F1 or F2 charges. Thus any penalty for the Mentel Ban would never be imposed.
Additionally, I can tell you, as a municipal prosecutor, Double Jeopardy is always a concern when there are charges split between a misdemeanor and a felony, and in such cases the municipal prosecutor always defers to the county prosecutor for the felony prosecution. Think of it this way, had our Friendly shooters merely been caught with a gun in the bar, then they’d be facing a minimum felony charge of possession of a firearm in a bar. If they were also charged under the Mentel Ban, and quickly plead guilty to this misdemeanor charge the morning of their arraignment, then when it came time to face the felony charge, the Friendly shooters would argue that they had already been punished for that action, and cannot be punished again in the felony case.
Similarly, the legal doctrine of crimes of similar import means that although the same conduct may be a crime several different ways, it may only be punished once. Let’s assume that our Friendly shooters had a prior conviction that made it illegal for them to own a gun in Ohio, and they were merely caught in possession of the firearm in the bar. The same possession is illegal 1.) as a felony since they are under legal disability, 2.) as a felony since they are in a bar, and 3.) as a misdemeanor for being in violation of the Mentel Ban. Although technically guilty of all three, the Friendly shooter would likely not be punished for all three, since that would be punishing the same conduct multiple ways (Though there could be an argument about punishing the two felonies separately.)
So, ladies and gentlemen, what we have is a law that will almost certainly never result in meaningful prosecution, at least as far as criminals go. Any criminal who violates the Mentel Ban will almost certainly have also violated another, felony level, law, rendering the Mentel Ban meaningless.
You might think “that can’t be right, no one would pass a law so meaningless.” Go look at the prosecution statistics for any municipality with misdemeanor gun laws. (i.e. magazine bans, AWBs, Saturday Night Special bans etc.) There are almost no prosecutions under these laws, because criminals almost ALWAYS do something felony level at the same time. The information I have seen is that Toledo had TWO convictions for violations of their Saturday Night Special ban as of a year ago. Care to guess how many Hi-Points get taken off criminals in Toledo in a given month? Where are the prosecutions?
I am so confident in this analysis that today I am announcing the formation of the Mentel Ward. This group of volunteer readers will attempt to monitor gun crime in Columbus and point out each time a gun crime happens in apparent violation of the Mentel Ban, yet is unpunished by this same ban. This will do two things. First, it will show how the ban is failing to prevent gun crime. Second, it will show how the ban is failing to punish criminals for violating the ban. The only people impacted by any gun ban are the law abiding.
As you can imagine, monitoring gun crime in Columbus is a monumental task, and we need your help. Click here to be admitted to the Mentel Ward.
After you've committed yourself, please help report Mentel Cases here.
About the author:
Ken Hanson is a general practice attorney in Delaware, Ohio, and is involved in gun rights cases throughout Ohio. Ken has previously served as a Chief Assistant County prosecutor, and currently serves as a prosecutor for two municipalities. Ken is an NRA Certified Instructor and teaches CCW classes for Ohio and Utah licensing.