2014 Ohio 2869
Ohio Ct. App.2014Background
- In 2010 Wysocki was charged with domestic violence; a temporary protection order prohibited him from possessing deadly weapons and the Oberlin Police seized two firearms.
- The temporary protection order ended after Wysocki pleaded no contest to reduced charge of criminal mischief (R.C. 2909.07), a third-degree misdemeanor.
- Wysocki sought return of the firearms; the municipal court ruled it lacked authority to release them absent a replevin action.
- Wysocki filed suit in the Lorain County Common Pleas Court for replevin and conversion; the court set briefing rather than taking testimony and granted defendants’ summary judgment, denying Wysocki’s motion for possession as moot.
- Defendants relied on 18 U.S.C. § 922(g)(9), arguing Wysocki’s conviction was a "misdemeanor crime of domestic violence" that federally bars possession of firearms.
- On appeal this Court reversed, holding the elements of Wysocki’s criminal mischief conviction do not include the requisite physical-force element to qualify as a federal misdemeanor crime of domestic violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wysocki’s criminal mischief conviction qualifies as a "misdemeanor crime of domestic violence" under 18 U.S.C. 921(a)(33)(A) / 922(g)(9) | Wysocki: his conviction does not include use or attempted use of physical force and thus is not a federally disqualifying domestic violence misdemeanor | Defendants: conviction falls within § 921(a)(33)(A)’s definition and therefore § 922(g)(9) bars his possession of firearms | Court: conviction lacks the physical-force (offensive touching) element; it is not a § 921(a)(33)(A) misdemeanor crime of domestic violence |
| Whether the trial court properly granted defendants’ summary judgment and denied Wysocki’s motion as moot | Wysocki: summary judgment should have been granted to him or at least his motion adjudicated on merits | Defendants: summary judgment appropriate because Wysocki is federally barred from possessing firearms | Court: trial court erred to grant defendants’ summary judgment; case remanded for further proceedings (Wysocki’s own summary-judgment claims not decided) |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (summary judgment standard review)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Civil Rule 56 requirements)
- Dresher v. Burt, 75 Ohio St.3d 280 (burden on movant and nonmovant on summary judgment)
- United States v. Castleman, 134 S. Ct. 1405 (interpretation of "use of physical force" as offensive touching for § 921(a)(33)(A))
- United States v. Al-Rekabi, 454 F.3d 1113 (criminal mischief not a misdemeanor crime of violence under federal law)
- State ex rel. Toma v. Corrigan, 92 Ohio St.3d 589 (definition of conversion)
- United States v. Medicine Eagle, 266 F. Supp. 2d 1039 (examining court records to determine if state conviction includes a physical-force element)