767 N.E.2d 286 | Ohio Ct. App. | 2002
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The General Assembly has enacted laws dealing with concealed weapons. The issue today is R.C.
There is no doubt that the Ohio Constitution grants citizens the right to possess, and to bear, arms. That is exactly what it says.
The Ohio Constitution, Section 4, Article I, states, "The people have the right to bear arms for their defense and security * * *." The framers of the Ohio Constitution did not add this and others in a "bill of rights" as amendments, as in the United States Constitution. They put the citizens' rights right up front, in Article I. We believe they meant what they said. Concerning weapons, they did not add the "well-regulated militia" language of the
Additionally, R.C.
While we do not need to reach the issue of whether R.C.
If times have changed, and weapons are no longer necessary to procure food or safety (a dubious proposition), the proper course is to amend the Ohio Constitution. This court can deal only with the law as written.
The problem with R.C.
Guns or no guns, we know of no other situation where a citizen is guilty until proven innocent. And no one has been able to tell us how someone walking might legally move a firearm from one location to another — if the gun is visible, a citizen will be arrested for inducing panic; if it is concealed, for violating R.C.
A law-abiding citizen may not be subject to arrest, incarceration, indictment, trial, appeal, legal fees, and the possibility of loss of freedom for doing a legal act.
It is the very real threat of arrest, incarceration, indictment, and trial that provided the appellees with the standing to request a declaratory judgment on the constitutionality of R.C.
Carry a Gun, Concealed or Unconcealed, and Go Directly to Jail
As previously stated, Section
Typically, legislative restrictions on fundamental constitutional rights must pass the highest level of judicial review — strict scrutiny. Under this standard, a law that seeks to limit the exercise of a fundamental right is presumed to be unconstitutional unless the state can prove that it is necessary to promote a compelling governmental interest,6 and that it is narrowly tailored to accomplish that goal.
But according to precedent established by the Ohio Supreme Court in Arnold, the test we are required to apply is one of "reasonableness" — whether the legislation is "fair, proper, moderate, suitable under the circumstances and not excessive."7 We believe, as did the trial court in this case, and as did Judge Hoffman in his dissent in Arnold,8 that strict scrutiny is the appropriate standard to be applied to legislation impinging upon fundamental rights. We hope that the Ohio Supreme Court will use this case as a vehicle to clarify the constitutional paradox created by the Arnold decision. But as we are bound to follow our supreme court, we must presume that the legislation is constitutional unless the appellees have proved it to be unreasonable. The record in this case demonstrates that the statute is unreasonable. It passes no level of judicial scrutiny.
The appellants in this case — the state of Ohio, the city of Cincinnati, and a host of townships and municipalities — seek to characterize R.C.
The Nieto court held that the statute was constitutional, reasoning that it "[did] not operate as a prohibition against carrying weapons, but as a *535 regulation of the manner of carrying them. The gist of the offense [was] the concealment."10 Presumably then, in 1920, one could carry a pistol, bowie knife, dirk, or other dangerous weapon on or about his person, provided only that it was not concealed. But today, one may not. Today, as the trial court found and the record reflects, if one were to openly carry a firearm, one would be arrested for inducing panic11 or for disorderly conduct.12 Further, we believe that State v. Arnold has superceded Nieto.
Rather than view this case myopically, as the appellants urge us to do, and consider only a single statute in isolation, we must consider a broader scope. And the broader scope, as the evidence introduced in the trial court reflects, is that R.C.
The exercise of no other fundamental right subjects a citizen to arrest. Should a citizen first go to jail for voting, and be required to prove innocence of multiple voting? Should a citizen first go to jail for marrying, and then get out by proving innocence of bigamy? Should we jail people for publishing a newspaper, then require them to prove that what was published was not libelous or obscene?
We hold today that R.C.
First, as we have previously noted, the record reflects that these affirmative defenses are largely ignored at the initial point of contact between a *536 citizen and an officer. The act of carrying a concealed weapon typically results in arrest, and affirmative defenses are sorted out later. The practical effect then is to expose a citizen to arrest, indictment, and prosecution for what later may be determined to have been the legal exercise of a fundamental right. And that, as we have held above, cannot be.
Second, the affirmative defenses are unconstitutionally vague. They may not be understood by a citizen of reasonable intelligence, and they are susceptible to arbitrary enforcement.
The first affirmative defense is that a citizen may carry a concealed weapon provided that it is (1) carried for defensive purposes, (2) while the citizen is engaged in a lawful business, (3) when it is necessary to conduct the business at a time and place that renders the citizen "particularly susceptible to criminal attack," such that (4) a "prudent person" would be justified in going armed.13
A second affirmative defense to the crime of carrying a concealed weapon may be asserted when the weapon is carried (1) for defensive purposes, (2) while the citizen is engaged in a lawful activity, (3) and he has "reasonable cause" to fear a criminal attack upon himself, a member of his family, or his home, (4) that would justify a "prudent person" in going armed.14
The third defense is that a weapon may be kept at hand for any "lawful purpose" in one's own home.15
Finally, R.C.
In this case, evidence adduced at trial demonstrated that a senior police official with many years of law enforcement experience could not determine *537 whether an affirmative defense was applicable. The witness testified that he would have needed to call a prosecutor or an attorney. If a senior law enforcement official cannot properly apply the affirmative defenses to a given situation, the average citizen of ordinary intelligence could be expected to fare no better. We consider ourselves persons of average intelligence, and we cannot tell what is legal and what is not. As written, the affirmative defenses are unconstitutionally vague — they do not provide clear warning of the conduct that they seek to exempt from criminal liability.
"`Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'"18 Thus vague laws may trap the unwary because they do not provide adequate warning of the conduct that they seek to prohibit. "`Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy to policemen, judges, and juries for resolution on an ad hoc and subjective basis.'"19 Vagaries are not law.
A statute may be held unconstitutionally vague if a "person of common intelligence" is unable to determine what conduct is prohibited, or if the statute fails to "provide sufficient standards to prevent arbitrary and discriminatory enforcement."20 The record reflects that R.C.
Trial courts have applied the law inconsistently, and appellate courts have done no better.21 We mention these decisions of our colleagues not to *538 criticize, but only to demonstrate that vague statutes are open to subjective interpretation, rather than objective application. The result, which is confusing or opaque to the average citizen — and to police officers, lawyers, judges, and jurors — is an unconstitutional delegation of public-policy matters. When the police, the citizens, and the courts all must guess at the meaning of a criminal statute, subjective and arbitrary enforcement results.
Citizens of ordinary intelligence, experienced police officers, and the court system all have had difficulty discerning what the General Assembly intended to be an affirmative defense to the charge of carrying a concealed weapon. Thus, to exercise a fundamental constitutional right, citizens must chance their liberty to the vagaries of what a random judge or jury might find "reasonable." Constitutional rights may not rest on a foundation of quicksand.
We affirm the judgment of the trial court that the affirmative defenses are unconstitutionally vague, that vagueness renders the general prohibition in R.C.
The trial court violated the code of judicial conduct, disregarded the plaintiffs' lack of standing, spited stare decisis, usurped legislative authority, ignored burden of proof, made clearly erroneous findings, misapprehended the law, and otherwise abused its discretion. *539
Declaring an unconstitutional statute unconstitutional is not judicial bias — it is judicial duty. Based on the law and the record before him, the trial judge had no choice but to rule as he did. Neither do we, regardless of our personal opinions. If Judge Ruehlman had ruled the other way, we would have reversed him.
All judges bring the sum total of life's experiences to their courtrooms. While we strive to be free of bias or prejudice, we should not disregard our knowledge of humanity — our experiences in the ways of the world.
We would not hesitate to criticize a judge who crosses the line. But the city's attack on the trial judge in this case is offensive. Judging can often be a lonely and thankless job; one side of any dispute is always unhappy. We expect the normal slings and arrows of outrageous criticism. But to be subject to unwarranted allegations of bias — based on an event that might at first blush arguably create bias, if any, in the other direction is beyond justification.
We overrule the appellants' allegations.
At issue is the testimony of two experts. Dr. David B. Mustard is an economics professor from the University of Georgia. He testified for the appellees that, according to his studies, states that had enacted some form of legislation permitting law-abiding citizens to carry concealed weapons had not experienced a rise in violent crime, accidental deaths, or felonious police deaths. Instead, he testified that a statistically significant reduction had occurred in violent crime murder, rape, robbery, and aggravated assault — with the most profound impact found in urban areas. Mustard also conceded that some experts in his field disagreed with his methodology, and that reasonable people might differ on the efficacy of various concealed-carry laws.
Professor Franklin E. Zimring is a law professor at the University of California at Berkeley. Zimring has written extensively on firearm regulations. He testified for the appellants that, in his opinion, Ohio's concealed-carry laws were a reasonable attempt to (1) reduce the deadliness of assaults and robberies in public places; (2) provide the police with a basis for early intervention before a more dangerous crime occurred; and (3) ensure the safety of police officers. He also testified that no state with significant urban areas allowed the unrestricted carrying of weapons. But he conceded that he was not familiar with all of the *540 related Ohio statutes regulating access to weapons, such as those that prohibit persons under a disability from acquiring or possessing a weapon.
From the trial court's findings of fact and conclusions of law, it is clear that the court found Mustard's testimony helpful. Indeed, the court adopted much of it. But the court gave no weight to Zimring's opinions and, even though the testimony remains part of the record in this appeal, stated that it "should be stricken from the record."
Initially, we note that "the determination of an expert's qualifications to testify on a particular subject is within the sound discretion of the trial court."24 An abuse of discretion is more than an error of law or judgment — it implies that the court's attitude was unreasonable, arbitrary, or unconscionable.25 We can discern no abuse of discretion in the trial court's admission of either expert's testimony. Nor can we determine that the court was speaking literally when it suggested that Zimring's testimony should have been stricken. But we believe that the trial court, in its "gatekeeper" role, could have excluded Zimring's testimony. We hold that both experts' opinions are properly part of the record and overrule any assignment of error to the contrary.
Next we turn to the weight the trial court gave each expert's testimony. The weight and credibility that is to be given to evidence, including expert testimony, are within the discretion of the trier of fact — in this case, the trial court.26 The court was free to accept all, part, or none of any expert witness's testimony, whether it was merely evidential or tended to prove the ultimate fact.27
We hold that the trial court did not abuse its discretion in assigning no weight to Zimring's testimony. His opinion regarding Ohio's concealed-carry laws was of limited usefulness because the record reflects that it was not considered in the context of Ohio's other laws, law enforcement practices, *541 or the state constitution. Simply because a law professor believes a statute is reasonable does not make it so.
Similarly, the court was free to adopt Mustard's testimony. He essentially testified that when states passed some form of legislation that allowed law-abiding citizens to carry concealed weapons, there was minimal detrimental effect and a small positive impact in key areas. This may be comforting should Ohio enact such laws. And it may tend to show that Ohio's concealed-carry laws are stricter than necessary. But it does not bear directly on the reasonableness of the current statute. That statute is unreasonable because it, in conjunction with the practice of arrest for openly carrying a weapon, effectively prohibits law-abiding citizens from exercising the constitutional right to bear arms, and because it is vague. Thus, while we do not find the testimony crucial to the resolution of the issue in this case, we hold that the court did not abuse its discretion in considering it.
The law requires that when, as in this case, declaratory relief is sought, any entities that "have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding."29 Clearly, the county, township, and municipal appellants have an interest in R.C.
Judgment affirmed as modified.
Doan and Hildebrandt, JJ., concur.
