Seneca County: Appeal of weapon ruling heard
When he rose in opposition to Sub. HB12 on the floor of the Senate today, Sen. Eric Fingerhut (D, Cleveland) told Senators that "no one has, in all these debates, shown me a case where the [existing law concerning] affirmative defenses present a problem."
Apparently Fingerhut doesn't read the papers much.
June 18, 2003
Tiffin Advertiser-TribuneLIMA, Ohio - Seneca County’s prosecutor argued in the 3rd District Court of Appeals yesterday that a county judge failed to follow judicial precedent this year when he declared Ohio’s concealed-weapon law unconstitutional.
In a 10-minute argument before the appellate judges, Prosecutor Ken Egbert, Jr., further said legislators should be the ones to change state laws, not judges.
In February, Mr. Egbert filed an appeal with the court in Lima regarding a ruling that same month in Seneca County Common Pleas Court by Judge Michael Kelbley. In an 18-page decision, Judge Kelbley dismissed felony charges of carrying a concealed weapon against a Fostoria woman who said she hid a gun under a car seat because she feared for her safety after being raped twice.
The judge said the concealed-weapon law infringes on citizens’ rights to defend themselves.
"The statute deprives Ohio citizens of an effective means of self-defense," the judge wrote. "The Ohio Constitution affirms the right to self-defense, even by the use of arms."
Judge Kelbley’s ruling was the second in a little more than a year by a county court against the concealed-weapon law. A judge in Hamilton County Common Pleas Court declared the law unconstitutional in January, 2002.
The Hamilton County ruling later was upheld by the 1st District Court of Appeals. The state has appealed that decision to the Ohio Supreme Court, which has yet to rule in the matter.
What follows is a detailed response to Mr. Egbert's arguments, from an OFCC supporter who was there:
I attended the oral arguments for the appeal by the State on the concealed weapons case from Seneca County, State v. Howard. Mr. Kenneth Egbert, Seneca County Prosecutor, representing the State, was present; Mr. John Kahler chose not to attend, resting on his brief. Shaw, Walters, and Cupp were impaneled to hear the arguments. There were several others in the gallery, including Mr. Ryan Good of the Advertiser-Tribune, most of them appeared to have been attorneys or parties to the other cases on the docket. The Howard case was the first to be heard.
Mr. Egbert opened by reiterating the procedural history of the case and by stating only the very basic facts. He pointed out that the defendant was riding as a passenger in a car and pursuant to a search of the vehicle. The weapon was found under her seat - readily accessible to the defendant.
Mr. Egbert insisted that "there are no facts upon which the common pleas court could have made its decision." No facts were stipulated, he claimed. He made no mention of the "Joint Exhibit", Ex. A. which was submitted to the court below at the hearing on the motion to dismiss. He failed to mention that he had not filed any motion in opposition to the motion to dismiss.
Citing State v. Neito, 101 Ohio St. 409 (1920), Mosher v. Dayton, 48 Ohio St.2d. 243 (1976) and Arnold v. Cleveland, 67 Ohio St.3d 35 (1993), Mr. Egbert claimed that the Ohio Supreme Court has found statutes prohibiting the carrying of concealed weapons to be valid exercises of the state's police power. Mr. Egbert did not mention that Arnold dealt with a specific make of weapon, Mosher was addressing the constitutionality of the City of Dayton's permit to carry requirement, and Neito predated the legislature's enactment of section 2321.12's affirmative defenses and dealt with someone who had already threatened another with violent use of the weapon.
Mr. Egbert said that the court below "over-reached" and was acting as a "super legislature." He said that the court below "ignored the precedent of this very court," referring to a case decided by the Third District two weeks after Kelbley's court issued its ruling. See State v. Ferguson, 2003-Ohio-866, Feb. 27, 2003, 2003 WL 548360 (3rd Dist. 2003). (It is hard to follow a case that hasn't been decided at the time you write your own opinion.) In any event, Ferguson dealt with a man who was carrying with a disability and while committing another crime, albeit a DUI. Id. There was no suggestion that Ferguson was carrying the weapon out of fear for his safety.
Mr. Egbert spoke for ten minutes. There were no questions from the Court. Afterward, I spoke with the court administrator, Gregory B. Miller. He told me that the case "is not a declaratory action" but is viewed by the Court only as "a simple appeal in a criminal case." Though the issue at hand is already in the Ohio Supreme Court, the Court of Appeals didn't want the case open before them for too long. Apparently it looks bad if they have cases that sit unresolved for long periods of time, even if there is a pending case in the Supreme Court.
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