West v. CincinnatiWest v. Cincinnati
Emily Smart Woerner, City Solicitor, and Scott M. Heenan and Shuva J. Paul, Senior Assistant City Solicitors, for Defendants-Appellants.
BERGERON, Judge.
{¶1} In some respects, plaintiff-appellee Frank West‘s failure to lock up his gun at home, and his son‘s gunshot injury resulting from a friend accessing and firing it, demonstrated the purpose of defendant-appellant city of Cincinnati‘s new “safe storage” gun law, Cincinnati Municipal Ordinance (“CMC“) 915-3. As one council member put it, “Our message is lock it up or get locked up.” But, as Mr. West argues in this appeal, the city‘s attempt to regulate firearm storage under the guise of a child endangerment statute runs into a familiar problem for local governments in Ohio:
I.
{¶2} The impetus for Mr. West‘s civil case for declaratory and injunctive relief arose in the Hamilton County Municipal Court‘s Criminal Division, where he faced charges for two counts of endangering children under state law, in violation of
{¶3} About two months after the charges were filed against him, Mr. West jumped over to the Hamilton County Court of Common Pleas, filing suit against defendants-appellants the city of Cincinnati, Mayor Aftab Pureval, City Solicitor Emily Smart Woerner, and Chief of Police Teresa Theetge (collectively, the “City“). He asked the court for a declaratory judgment under
{¶4} The City enacted CMC 915 in early 2023, adding it as a new chapter labeled “Weapons Offenses” under Title IX (“Misdemeanors“) of the city code. The heart of the chapter is CMC 915-3, titled “Child Endangering,” under which the City established its “safe storage” gun law. CMC 915-3, in relevant part, provides:
(a) No person who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child shall create a substantial risk to the health or safety of the child by violating a duty of care, protection, or support.
(b) It shall be a substantial risk to the health or safety of a child for a person who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child to negligently store or leave a firearm in a manner or location in the person‘s residence or vehicle where the person knows or reasonably should know a child is able to gain access to the firearm.
(c) This section does not apply to a person who does either of the following:
- Stores or leaves a firearm in the person‘s residence or vehicle if the firearm is kept in safe storage; or
- Stores or leaves a firearm in the person‘s residence or vehicle if a child gains access to the firearm as a result of any other person‘s unlawful entry into a person‘s residence or vehicle.
(d) Penalties. Whoever violates this section is guilty of a first degree misdemeanor.
{¶5} In a separate section, CMC 915-5 criminalizes having weapons while under disability in a way that the parties agree generally mirrors state law. At the time Mr. West filed his civil suit, the only other section of CMC 915 was CMC 915-1, which contains an array of definitions relevant to the chapter.1 Most important of these is CMC 915-1-S, which defines “[s]afe storage” as:
(a) a device that, when installed on a firearm, is designed to prevent the firearm from being operated without first deactivating the device;
(b) a device incorporated into the design of the firearm that is designed to prevent the operation of the firearm by anyone not having access to the device; or
(c) a safe, gun safe, gun case, lock box, or other device that is designed to be or can be used to store a firearm and that is designed to be unlocked only by means of a key, a combination, or other similar means.
If a person stores a device in a way that meets this definition of “safe storage,” CMC 915-3(c)(1) dictates that CMC 915-3 “does not apply” to them.
{¶6} The core of Mr. West‘s challenge to CMC 915-3 is that it is preempted by
{¶7} The City moved to dismiss this suit under Civ.R. 12(B)(6), primarily on the grounds that equitable relief should not be granted where an adequate remedy at law exists, pointing to Mr. West‘s criminal case and the option of a motion to dismiss
{¶8} The trial court below here acted first. At the conclusion of an August 2023 hearing on Mr. West‘s motion for a temporary restraining order and preliminary injunction and the City‘s motion to dismiss, the court granted a permanent injunction against the enforcement of CMC 915 in its entirety and denied the City‘s motion without further argument or evidence. The City then requested written findings of fact and conclusions of law.
{¶9} In its entry, the trial court declared that ”
{¶10} The City appealed, raising procedural concerns with the trial court‘s injunction, challenging the court‘s decision to proceed in equity despite the ongoing criminal proceedings, and contesting the injunction on overbreadth and vagueness grounds. With this appeal pending, Mr. West‘s criminal charges under CMC 915-3 were dismissed, as that trial court cited a conflict with
II.
{¶11} We first address the procedural posture of this appeal and its relationship to an appeal also before this court that concerns the constitutionality of
{¶12} In September 2023, in a separate case, a different trial court judge granted the City‘s request for a preliminary injunction of the 2018 and 2022 amendments to
{¶13} In the appeal now before us, the City does not challenge the trial court‘s conclusion that it was bound by the Supreme Court of Ohio‘s determination in City of Cleveland v. State that the version of
B.
{¶14} Next, we acknowledge a potential mootness concern with Mr. West‘s appeal and the underlying injunction, given the resolution of his CMC 915-3 charges and the related state charges in his criminal proceedings. “Under the mootness doctrine, American courts will not decide cases in which there is no longer an actual legal controversy between the parties.” Cyran v. Cyran, 152 Ohio St.3d 484, 2018-
C.
{¶15} We now turn to the City‘s two assignments of error relating to procedure (its second and fourth assignments). First, it insists that the trial court abused its discretion by proceeding to the merits of the permanent injunction during the hearing on Mr. West‘s motion for a temporary restraining order and preliminary injunction. Under Civ.R. 65(B), “the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application” before or after the commencement of the preliminary injunction hearing. We review its decision to do so for an abuse of discretion. See Civ.R. 65(B) (providing that a trial court “may” order
{¶16} The parties agree that the trial court consolidated the permanent injunction trial into the preliminary injunction hearing without notice. Several Ohio courts have found error in such a consolidation absent a formal consolidation order prior to the hearing or some other form of notice that the trial court intends to proceed to the merits at the hearing. See id. at ¶ 10, citing Turoff v. Stefanac, 16 Ohio App.3d 227, 475 N.E.2d 189 (8th Dist.1984); Gionino‘s Pizzeria Inc. v. Reynolds, 7th Dist. Carroll No. 20 CA 0940, 2021-Ohio-1289, ¶ 44. This aligns with the U.S. Supreme Court‘s interpretation of the near-identical federal rule and its relationship to due process. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981), quoting Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (7th Cir.1972) (” ‘[T]he parties should normally receive clear and unambiguous notice [of the court‘s intent to consolidate the trial and the hearing] either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases.’ “). Such notice enables parties to be prepared and to marshal an appropriate evidentiary record to prosecute or defend the injunction.
{¶17} Even so, a court does not abuse its discretion by consolidating the trial into the preliminary hearing without notice if the parties did not suffer prejudice from this maneuver. See Strah v. Lake Cty. Humane Soc., 90 Ohio App.3d 822, 835, 631 N.E.2d 165 (11th Dist.1993); MD Acquisition, LLC v. Myers, 10th Dist. Franklin Nos. 11AP-390 and 11AP-412, 2013-Ohio-3825, ¶ 31; see also 11A Wright and Miller, Federal Practice & Procedure, Section 2950 (3d Ed.2023) (“[O]rdering consolidation
{¶18} The City claims prejudice from the unnoticed consolidation because it was “denied the ability to develop [its] case against a permanent injunction and refused the opportunity to prepare and present evidence in [its] favor.” But the trial court considered the dispute “purely a question of law,” and it remains unclear what additional facts, if any, could have been developed to oppose Mr. West‘s request for relief. The City mentions in a footnote that the trial court declined to receive evidence that the Ohio Attorney General (“OAG“) concluded that
III.
{¶20} Turning to the merits, the City appeals the trial court‘s order declaring CMC 915, and specifically CMC 915-3, as null and void because it is preempted by
{¶21} Across its first and third assignments of error, the City advances two main arguments against the substance of the trial court‘s order. First, it argues the trial court should have followed traditional principles of equity and abstained from addressing Mr. West‘s request for injunctive relief due to his pending criminal case because he had an adequate remedy at law in that case. Second, it claims that no parts of CMC 915 are preempted by
{¶22} At issue in the City‘s first argument is the general principle that “[e]quitable relief is never granted where there is an adequate remedy at law,” particularly during the pendency of a criminal prosecution, because “[o]rdinarily full protection is afforded by defending a prosecution for violation of a penal ordinance.” Olds v. Klotz, 131 Ohio St. 447, 452, 3 N.E.2d 371 (1936); see Garono v. State, 37 Ohio St.3d 171, 173, 524 N.E.2d 496 (1988) (“An injunction is an extraordinary remedy in equity where there is no adequate remedy available at law. It is not available as a right but may be granted by a court if it is necessary to prevent a future wrong that the law cannot.“); City of Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, ¶ 15. This principle is built into the general test for issuance of permanent injunctions, under which the plaintiff must show they lack an adequate remedy at law. See Stoneham at 267. Mr. West asserts that
{¶23} The application of this abstention principle and whether
{¶24} The Supreme Court of Ohio has articulated the principle as follows:
The legitimate place for the trial of criminal cases is in the courts established for that purpose and courts of equity will not oust the proper forum by drawing to themselves litigation which will prevent criminal courts from exercising their jurisdiction. So long as the defense which may be made in impending criminal prosecution is adequate to protect the rights of the accused, equitable relief by injunction is not available to him.
Troy Amusement Co. v. Attenweiler, 137 Ohio St. 460, 465, 30 N.E.2d 799 (1940). The court has acknowledged an exception to this principle “in those cases in which public authorities or private persons seek to enforce [1] unconstitutional and invalid legislation [2] whereby vested property rights will be interfered with to the extent of causing [3] irreparable injury for which there is no adequate remedy at law.” Id. at 466; see Olds at 452, citing Dobbins v. Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169 (1904); Garono at 174 (holding equitable relief was unavailable to a criminal defendant in part because his “property rights [were] * * * adequately protected through the criminal process“). Since Troy Amusement Co., the court has clarified that “[t]he fact that the constitutional issues raised in [a civil] case could also be raised as a defense in [a] criminal action does not necessarily mean that such a defense is an adequate remedy.” Anderson v. Brown, 13 Ohio St.2d 53, 56, 233 N.E.2d 584 (1968) (finding equitable relief appropriate because the criminal defendant faced harm to his business and was placed in an untenable position of either complying with a licensing
{¶25} The City argues that, despite the private right of action established in
{¶26} In a case distinguishing Ackerman, this court held that because the statute in question (
{¶27} Here, the City‘s attempts to apply the abstention cases, including Olds and Troy Amusement Co., and the “general principles of equity” cases, like Jones and Anthony, to Mr. West‘s case and
{¶28} First and foremost, none of the equity abstention cases involving pending criminal prosecutions dealt with a statute that expressly granted a person “adversely affected” by a city ordinance, which clearly encompasses those facing criminal prosecution under it, the express right to seek declaratory and injunctive relief on the grounds the ordinance is preempted by state law and void. See
{¶29} Second, we view this case as distinct from Jones and Anthony. Neither of those cases dealt with the same principle at issue here—a court acting in equity abstaining due to a pending criminal prosecution. Further,
{¶30} Therefore, Mr. West had the right to file a civil action for declaratory and injunctive relief to prevent the City from enforcing CMC 915-3 against him, and the trial court did not err by ruling on it during the pendency of his criminal proceedings. The court also did not err by denying the City‘s motion to dismiss on abstention grounds. We therefore overrule the City‘s first assignment of error.
{¶31} We next assess whether any sections of CMC 915 are preempted by
{¶32} Although a trial court has “broad discretion in fashioning the terms of an injunction,” the “injunction must not be overly broad,” and “[e]quity requires that any injunction be narrowly tailored to prohibit only complained-of activities.” Miami Twp. Bd. of Trustees v. Weinle, 2021-Ohio-2284, 174 N.E.3d 1270, ¶ 47, 50 (1st Dist.), citing Bracket v. Moler Raceway Park, LLC., 195 Ohio App.3d 372, 2011-Ohio-4469, 960 N.E.2d 484, ¶ 16 (12th Dist.), and Myers v. Wild Wilderness Raceway, L.L.C., 181 Ohio App.3d 221, 2009-Ohio-874, 908 N.E.2d 950, ¶ 28 (4th Dist.). Still, “[w]e * * * review legal issues decided within the injunction framework under a de novo standard.” City of Cincinnati Citizen Complaint Auth., 2019-Ohio-5349, 139 N.E.3d 947, at ¶ 21, citing Vontz, 2016-Ohio-8477, 111 N.E.3d 452, at ¶ 26.
{¶33} We first address CMC 915-3, which operates in three stages. First, CMC 915-3(a) renders it a crime for a person who is in control of a child, such as a parent,
{¶34}
Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, including by any ordinance, rule, regulation, resolution, practice, or other action or any threat of citation, prosecution, or other legal process, may own, possess, purchase, acquire, transport, store, carry, sell, transfer, manufacture, or keep any firearm * * *. Any such further license, permission, restriction, delay, or process interferes with the fundamental individual right described in this division and unduly inhibits law-abiding people from protecting themselves, their families, and others from intruders and attackers and from other legitimate uses of constitutionally protected arms, including hunting and sporting activities, and the state by this
section preempts, supersedes, and declares null and void any such further license, permission, restriction, delay, or process.
(Emphasis added.)
{¶35} The preemptive language of
{¶36} The City correctly observes that CMC 915-3(a) essentially mirrors the state‘s child endangerment statute,
{¶37} CMC 915-3(b), however, regulates the negligent storage and keeping of firearms in a way not specifically provided for by state or federal law, and the City‘s argument that CMC 915-3(b) merely codifies Ohio case law defining what constitutes a “substantial risk” to children misses the mark. In the cases the City cites for that proposition, courts engage in a fact-specific analysis to determine whether the defendant‘s behavior constituted a “substantial risk” under
{¶38} The same is not true, however, with respect to CMC 915-3(c). Rather than a restriction on firearms storage, CMC 915-3(c) establishes exemptions to criminal liability under CMC 915-3(a) by declaring that the law “does not apply” to those who engage in safe storage, CMC 915-3(c)(1), or in situations where a child gains access to a firearm only due to the unlawful entry of another, CMC 915-3(c)(2). In such situations, the burden rests on the accused to establish that the exemption applied to them. See State v. Meyers, 11th Dist. Lake Nos. 2013-L-042 and 2013-L- 043, 2014-Ohio-1357, ¶ 41-43, citing State v. Washington, 1st Dist. Hamilton No. C-810917, 1982 Ohio App. LEXIS 12701, 3 (Oct. 27, 1982), and State v. Frost, 57 Ohio St.2d 121, 128, 387 N.E.2d 235 (1979). Though this subsection still relates to firearm storage, it does not impose a “further restriction” (nor a license, permission, delay, or process) on firearm storage because it merely provides an avenue for a person accused of violating CMC 915-3(a) to prove an exemption from criminal liability under that law. In other words, CMC 915-3(c) allows for someone accused of violating the City‘s child endangerment law, which the parties seemingly agree can encompass situations relating to firearms regardless of the status of CMC 915-3(b), to avoid liability by showing that they engaged in “safe storage” or that the child gained access to the firearm because of another person‘s unlawful entry into their home or vehicle. CMC 915-3(c); see Wyatt and Howard (upholding convictions for child endangerment under state law due to the defendants’ firearm-related conduct). It cannot be said that by providing these “carrots,” as the City calls them, CMC 915-3(c) somehow infringes on the affirmative right to store firearms as described in
{¶39} In sum, by specifically establishing that the negligent storage of firearms constitutes a “substantial risk” to children in a way state and federal law do not, CMC 915-3(b) is preempted and nullified by
{¶40} Turning to the rest of the ordinance, we conclude that the court erred in enjoining sections of CMC 915 outside of CMC 915-3 on two grounds. First, because Mr. West was only charged with violating CMC 915-3, he lacked standing to challenge unrelated parts of the ordinance. Second, even if he had standing to challenge the full ordinance, the definitions contained in CMC 915-1, in and of themselves, do not impose any regulations or other restrictions on firearms and thus are not preempted by
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{¶41} We thus affirm the trial court‘s order granting Mr. West a declaratory judgment that CMC 915-3(b) is null and void because it is preempted by
Judgment affirmed in part, reversed in part, and cause remanded.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.