State v. HendersonState v. Henderson
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
George G. Keith, 135 Portage Trail, P.O. Box 374, Cuyahoga Falls, OH 44223 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Harry L. Henderson, appeals his conviction in the Portage County Court of Common Pleas for improper handling of a firearm in a motor vehicle. Appellant claims the trial court should have granted his motion to dismiss the indictment. At issue is whether
{¶3} As a result of the stop, appellant was indicted on one count of improperly handling a firearm in a motor vehicle, a felony of the fifth degree, in violation of
{¶4} Appellant filed a motion to dismiss, arguing the statute under which he was charged,
{¶5} The trial court denied appellant‘s motion to dismiss in light of State v. Brown, 168 Ohio App.3d 314, 2006-Ohio-4174, in which this court held that
{¶6} Appellant subsequently pled no contest to the charge and was found guilty, following which he was sentenced to community control sanctions.
{¶8} “The trial court erred in failing to grant Mr. Henderson‘s motion to dismiss, as
{¶9} Appellant concedes the right to bear arms is not absolute and may be limited by reasonable restrictions. However, he argues the trial court erred in denying his motion to dismiss because, he contends,
{¶10} An appellate court reviews a trial court‘s denial of a motion to dismiss de novo. State v. Perry, 8th Dist. No. 89819, 2008-Ohio-2368, ¶20. Further, challenges to constitutionality are subject to de novo review. Id. at ¶22. De novo review is independent and without deference to the trial court‘s determination. Id.
{¶11} This court has held that “there is a strong presumption that all legislative enactments are constitutional.” State v. Ferraiolo, 140 Ohio App.3d 585, 586 (11th Dist.2000), citing State v. Collier, 62 Ohio St.3d 267, 269 (1991). Before a court may declare a legislative enactment unconstitutional, the legislation and constitutional provisions must be clearly incompatible. State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. “That presumption of validity of such legislative enactment cannot be overcome unless it appear[s] that there is a clear conflict between the legislation in question and some particular provision or provisions of the constitution.” Xenia v. Schmidt, 101 Ohio St. 437 (1920), paragraph two of the
{¶12} A statute may be challenged on constitutional grounds in two ways: (1) that the statute is unconstitutional on its face, or (2) that it is unconstitutional as applied to the facts of the case. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, ¶37, citing Belden v. Union Central Life Ins. Co., 143 Ohio St. 329 (1944), paragraph four of the syllabus. To mount a successful facial challenge, the party challenging the statute must demonstrate that there is no set of facts under which the statute would be valid, i.e., that the law is unconstitutional in all of its applications. Id., citing United States v. Salerno, 481 U.S. 739, 745 (1987). A facial challenge permits a defendant to challenge a statute due to its effect on conduct other than the conduct for which the defendant is charged, thus protecting the right to engage in conduct not directly before the court. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). Where it is claimed that a statute is unconstitutional as applied, the challenger must present clear and convincing evidence of a presently existing set of facts that makes the statute unconstitutional when applied to those facts. Id., citing Belden, supra.
{¶13}
{¶15} The statute at issue here is
{¶16} The Supreme Court of Ohio has considered the parameters of the right to bear arms in a series of cases, which, as pertinent to our analysis, began with Arnold v. Cleveland, 67 Ohio St.3d 35 (1993). In Arnold, the Supreme Court considered a challenge based on an alleged violation of the Ohio Constitution to a Cleveland ordinance that banned the possession and sale of assault weapons.
{¶17} The court in Arnold held that ”
{¶18} To meet the divergent needs and evolving conditions of society, legislation pursuant to the police power needs to be enacted. Almost every exercise of this authority will, in most if not all instances, interfere with a personal * * * liberty. Therefore, the test is one of reasonableness. * * * Here, the question is whether the legislation is a reasonable regulation, promoting the welfare and safety of the people of Cleveland. (Footnote omitted.) Id. at 47-48.
{¶19} In upholding the Cleveland ordinance, the court in Arnold held:
{¶20} [W]e believe that the ordinance, while admittedly broad in its scope, is a reasonable exercise of the municipality‘s police power. The ultimate objective of the legislation appears to be public safety. To reach this end, the municipality is attempting to limit the accessibility of certain generally recognized dangerous firearms. Id. at 48.
{¶21} The court in Arnold held that, although the ordinance at issue prohibited the possession and sale of all assault weapons, the police power includes the power to prohibit, and, since the city did not ban all firearms, the ordinance was a proper exercise of the police power and did not violate the Ohio Constitution. Id. at 49.
{¶22} Ten years later, in Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, the plaintiffs, who sought an injunction to prevent enforcement of
{¶24}
Section 4, Article I of the Ohio Constitution states: ‘The people have the right to bear arms for their defense and security * * *.’ Today we are asked to determine whetherR.C. 2923.12 ,2923.16(B) and(C) * * * infringe that right by prohibiting the carrying of concealed weapons. * * * [W]e conclude thatR.C. 2923.12 and2923.16 do not unconstitutionally infringe the right to bear arms. Id.
{¶25} Approximately one year after the court‘s decision in Klein was released, on April 8, 2004, the General Assembly enacted Ohio‘s concealed carry law.
{¶26} (E) No person who has been issued a license * * * to carry a concealed handgun under
section 2923.125 or2923.1213 of the Revised Code shall do any of the following:{¶27} (1) Knowingly transport or have a loaded handgun in a motor vehicle unless one of the following applies:
{¶28} (a) The loaded handgun is in a holster on the person‘s person.
{¶29} (b) The loaded handgun is in a closed case, bag, box, or other container that is in plain sight and that has a lid, a cover, or a closing mechanism with a zipper, snap, or buckle, which lid, cover, or closing mechanism must be opened for a person to gain access to the handgun.
{¶30} (c) The loaded handgun is securely encased by being stored in a closed, locked glove compartment or vehicle console or in a case that is locked.
{¶31} * * *
{¶32} (3) If the person is the driver or an occupant of a motor vehicle that is stopped as a result of a traffic stop * * *, and if the person is transporting or has a loaded handgun in the motor vehicle * * * in any manner, fail to do any of the following that is applicable:
{¶33} (a) If the person is the driver or an occupant of a motor vehicle stopped as a result of a traffic stop * * *, fail to promptly inform any law enforcement officer who approaches the vehicle while stopped that the person has been issued a license * * * to carry a concealed handgun and that the person then possesses or has a loaded handgun in the motor vehicle * * *.
{¶34} In State v. Brown, 168 Ohio App.3d 314, 2006-Ohio-4174, the defendant argued that
{¶35} Following the Supreme Court of Ohio‘s holding in Klein[, supra,]
R.C. 2923.16 was amended, including the additions of current subsections (E)(1) and (3). These subsections were added due to the enactment of Ohio‘s concealed carry law. SeeR.C. 2923.125 , et seq. These subsections expanded the right to bear arms in a motor vehicle. Prior to the enactment of these subsections, a loaded firearm was not permitted in the passenger compartment of a motor vehicle. SeeR.C. 2923.16(B) .R.C. 2923.16(E)(1) and(3) permit, with certain limitations, the holder of a concealed carry license to have a loaded firearm in the passenger compartment of a motor vehicle. SinceR.C. 2923.16(E)(1) and(3) place less restrictions on the right to bear arms than the former version of the statute, which the Supreme Court of Ohio found to be constitutional, these subsections are constitutional. Brown, supra, at ¶18.
{¶36} Further, in holding that the prohibitions in
{¶37}
R.C. 2923.16(E)(1) requires a loaded handgun in the passenger compartment of a motor vehicle to be secured in plain sight in a holster on the licensee‘s person, or locked in a glove compartment
or secured case. These restrictions reduce the possibility of the loaded firearm being acquired by a third person and increase safety for police officers approaching the vehicle.
R.C. 2923.16(E)(3) requires the concealed carry licensee to promptly notify a law enforcement officer that a loaded firearm is in the vehicle. Likewise, this provision is designed to increase police officer safety by alerting the officer that a loaded firearm is in the vehicle. Both of these subsections are a reasonable use of the state‘s police power to control the manner in which loaded firearms are transported. Brown, supra, at ¶19.
{¶38} Two other Ohio Appellate Districts have also relied on the Supreme Court of Ohio‘s decision in Klein, supra, in holding that
{¶39} Interpreting Ohio‘s Constitution, the Supreme Court of Ohio has held that
R.C. 2923.16(B) does not constitutionally infringe on an individual‘s right to bear arms. Klein[, supra.] We see no reason for a different conclusion when applying theSecond Amendment to the United States Constitution . Id. at ¶25.
{¶40} Likewise, in State v. Watson, 157 Ohio App.3d 217, 2004-Ohio-2628 (4th Dist.), the defendant argued that
{¶41} Further, the United States Supreme Court recently addressed the constitutional right to bear arms in two landmark cases, District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 130 S.Ct. 3020 (2010). Appellant bases his constitutional challenge on these cases.
{¶42} In Heller, supra, the United States Supreme Court considered a Second Amendment challenge to three ordinances enacted by the District of Columbia, which (1) totally banned the possession of handguns in the home and (2) required that any lawfully-owned firearms in the home be disassembled or bound by a trigger lock at all times, rendering them inoperable. The Supreme Court held that “the Second Amendment confers an individual right to keep and bear arms * * *.” Id. at 622. In explaining this right, the Court held:
{¶43} In sum, we hold that the District‘s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. Id. at 635.
{¶44} Further, the Court in Heller held that the right to bear arms is not unlimited:
{¶45} Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. * * * For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Id. at 626.
{¶46} Two years later, in McDonald, supra, the United States Supreme Court reaffirmed that Heller stands for the proposition that “the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.” Id. at 3050. The Court in McDonald further held that “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” Id.
{¶47} One issue left unanswered in the foregoing cases is the appropriate standard of review for courts to apply in considering legislation that affects the right to bear arms. While the United States Supreme Court in Heller held that the presumption of constitutionality must be more narrow than that provided by the rational basis test, the Court did not specify the appropriate standard of review. Id. at 628, fn. 27.
{¶48} We note, however, that, while the Supreme Court of Ohio in Klein, supra, did not address the appropriate standard of review, in that case, then-Justice O‘Connor, in her dissenting opinion, considered the issue. She stated that, while infringements on fundamental rights, such as the right to bear arms for one‘s security and defense, are
{¶49} Although appellant argues that
{¶50} We note that
{¶51} As noted above, appellant has asserted an as-applied and a facial challenge to
{¶52} As noted above, in applying the intermediate scrutiny standard to legislation that regulates the Second Amendment, such legislation (1) must be narrowly tailored to serve a significant government interest, and further, it (2) must leave open alternative means of exercising the right. Perry Ed. Assn., supra. We apply the same test with regard to the challenge under the
{¶53} Applying these principles here, first,
{¶54} In addition,
{¶55} Further, subsequent to the Supreme Court‘s holding in Klein, supra, that
{¶56} Applying the intermediate scrutiny analysis, appellant has failed to establish that
{¶57} We next address appellant‘s facial challenge. Because neither the Second Amendment nor the Ohio Constitution grants an absolute right to carry a loaded firearm in one‘s vehicle and appellant has not successfully asserted an as-applied challenge, it necessarily follows that
{¶58} We therefore hold the trial court did not err in granting appellant‘s motion to dismiss the indictment.
{¶59} For the reasons stated in the opinion of this court, the assignment of error is not well taken. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J., concurs in judgment only with Concurring Opinion,
DIANE V. GRENDELL, J., dissents with Dissenting Opinion.
{¶60}
{¶61} Viewed in its entirety, therefore, the statutory scheme does not amount to a complete unconditional ban on loaded firearms for use in self defense within a vehicle. This conclusion is especially patent given the code‘s express allowance for license holders to carry a loaded handgun in a holster on their person for potential use in the event of emergent danger.
{¶62} This court is required to presume the constitutionality of this statute. Klein v. Leis, 99 Ohio St.3d 537 (2003); Arnold v. Cleveland, 62 Ohio St.3d 35 (1993); Hilton v. Toledo, 62 Ohio St.2d 394 (1980). Moreover, legislation “will not be invalidated
{¶63} Appellant has not argued that the licensure requirement is unconstitutional or that all of the available permitted options for transporting a loaded handgun within a vehicle fail to secure his second amendment rights under the United States and Ohio Constitutions. Thus, the constitutional presumption prevails and for this reason alone, appellant‘s argument lacks merit.
{¶64} In deciding the case in this manner, simply applying the long standing principle that statutes are presumed constitutional and upholding the statute due to a complete lack of argumentation and briefing on the determinative licensure requirement, the precedential value would be intentionally limited. Thus, the opinion could not be cited for the proposition that the statute either withstood or failed to withstand a substantive constitutional challenge on the licensure requirement.
{¶65} I write further because I disagree with the lead opinion‘s express declaration that the statute is substantively constitutional and the dissent‘s express declaration that the statute is substantively unconstitutional.
{¶66} The lead opinion‘s conclusion is based primarily upon Brown. While the lead opinion accurately states both the Brown court‘s holding and rationale, Brown‘s rationale is fatally flawed and should be overruled.
{¶67} Brown did not expressly examine or analyze whether the licensure requirement is constitutional. Instead, it reasoned that because the Supreme Court of Ohio, in Klein, upheld as constitutional the prior version of the statute at issue in which “*** a loaded firearm was not permitted in the passenger compartment of a motor
{¶68} Brown is simply wrong when it states that the Ohio Supreme Court in Klein upheld as constitutional the prior version of this statute in which a loaded firearm was not permitted in the passenger compartment of a motor vehicle. In fact, the statutory scheme upheld in Klein permitted loaded firearms in a passenger compartment albeit under limited circumstances. See
{¶69} “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 a 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.
{¶70} “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 lawful activity, (3) and he has a ‘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.”
{¶72} I cannot endorse the lead opinion‘s reliance on Brown. Brown‘s analysis is based on an erroneous reading of the law and its rationale is logically flawed. Far from relying on Brown, I would therefore overrule it.
{¶73} Finally, the lead opinion does not address whether the licensure requirement amounts to a valid constitutional exercise of the state‘s police power to regulate but expressly declares the statute substantively constitutional. The licensure requirement is not just a pivotal issue, it is dispositive of the statute‘s constitutionality.
{¶74} Regarding the dissent, it is clear that the statute permits the operator or occupant of a car to have a loaded handgun on his person thus satisfying the self defense concerns expressed. Accordingly, this statute, presumed constitutional, cannot be declared unconstitutional unless the licensure requirement is unconstitutional. Klein, citing Arnold. Like the lead opinion, the dissent has not addressed the licensure issue yet expressly declares the statutory scheme unconstitutional on substantive grounds.
{¶75} The constitutional issue in this case, licensure, was not briefed or argued. For this reason alone, appellant‘s assignment of error lacks merit. Moreover, for the reasons previously stated, this court should overrule Brown and address the
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
{¶76} I respectfully dissent from the majority‘s holding that
{¶77} The
{¶78}
{¶79} It is important to note that, as firearms should be allowable for self defense within a vehicle, the occupant of the vehicle must be able to access the weapon, which is currently prevented by
{¶81} The majority cites Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633, for the proposition that
{¶83} It is important to note that Klein was also decided prior to the former version of
{¶84} Based on the foregoing analysis, I would reverse Henderson‘s conviction, as