IN THE COURT OF COMMON PLEAS, CIVIL DIVISION HAMILTON COUNTY, OHIO

Transcription

1 IN THE COURT OF COMMON PLEAS, CIVIL DIVISION HAMILTON COUNTY, OHIO BUCKEYE FIREARMS FOUNDATION, INC., et al., Plaintiffs, Case No. A v. THE CITY OF CINCINNATI, et al., Defendants. MOTION OF STATE OF OHIO FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PRELIMINARY INJUNCTION The State of Ohio through its Attorney General Mike DeWine respectfully requests leave to file the amicus brief attached as an exhibit here vindicating Ohio Revised Code 9.68, which requires that any firearms regulations be provided by uniform laws throughout the state. The Ohio Supreme Court has found R.C to be a general law that displaces municipal firearm ordinances and does not unconstitutionally infringe on municipal home rule authority. City of Cleveland v. State, 128 Ohio St. 3d 135, (2010). The State has a strong interest in ensuring the effectiveness of its laws and in preventing a confusing patchwork of licensing requirements, possession restrictions, and criminal penalties as [Ohioans] travel from one jurisdiction to another. Id. at 141. Ohio therefore respectfully submits the proposed amicus brief appended to this Motion, with that brief serving as further support for this request, and asks

2 that the Court permit its filing and deem it filed instanter with any grant of this Motion for Leave. Respectfully submitted, MIKE DEWINE Ohio Attorney General s/ Steven T. Voigt STEVEN T. VOIGT ( ) Principal Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16 th Floor Tel Fax JONATHAN R. FULKERSON ( ) Deputy Chief Counsel FREDERICK D. NELSON ( ) Senior Advisor 30 E. Broad Street, 17 th Floor Tel Fax Counsel for proposed Amicus Curiae State of Ohio

3 CERTIFICATE OF SERVICE I hereby certify that on June 22, 2018, the foregoing was electronically filed with the Clerk of the Court by using the e-filing system, and a copy of the foregoing has been sent to the following via electronic mail and regular U.S. Mail James P. Sean Maloney 8917 Eagle Ridge Court Westchester, Ohio smaloneyesq@gmail.com Ronald Lemieux P.O. Box Cleveland, Ohio rlemieux@ronaldlemieuxlaw.com David S. Kessler Blaugrund, Herbert, Martin 300 W. Wilson Bridge Road, Suite 100 Worthington, Ohio dsk@bkmplaw.com spp@bkmplaw.com Derek A. Debrosse Barney DeBrosse, LLC 503 S. Front Street, Suite 240B derek@barneydebrosse.com Counsel for Plaintiffs Paula Boggs Muething City Solicitor Cincinnati Law Department 801 Plum Street Cincinnati, Ohio paula.boggsmuething@cincinnati-oh.gov Counsel for Defendants s/ Steven T. Voigt STEVEN T. VOIGT ( ) Principal Assistant Attorney General

4 IN THE COURT OF COMMON PLEAS, CIVIL DIVISION HAMILTON COUNTY, OHIO BUCKEYE FIREARMS FOUNDATION, INC., et al., Plaintiffs, Case No. A v. THE CITY OF CINCINNATI, et al., Defendants. (PROPOSED) BRIEF OF AMICUS CURIAE STATE OF OHIO IN SUPPORT OF PRELIMINARY INJUNCTION Respectfully submitted, MIKE DEWINE Ohio Attorney General s/ Steven T. Voigt STEVEN T. VOIGT ( ) Principal Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16 th Floor Tel Fax steven.voigt@ohioattorneygeneral.gov JONATHAN R. FULKERSON ( ) Deputy Chief Counsel FREDERICK D. NELSON ( ) Senior Advisor 30 E. Broad Street, 17 th Floor Tel Fax frederick.nelson@ohioattorneygeneral.gov jonathan.fulkerson@ohioattorneygeneral.gov Counsel for proposed Amicus Curiae State of Ohio

5 The State of Ohio submits this amicus brief to vindicate the effectiveness of a duly enacted state law, R.C. 9.68, that the Ohio Supreme Court already has determined to be a general law that displaces municipal firearm ordinances and does not unconstitutionally infringe on municipal home rule authority. City of Cleveland v. State, 128 Ohio St. 3d 135, (2010). Ohio has a vital interest in maintaining its constitutional system under which the lawful policies of the State as established by the General Assembly or the people pursuant to constitutional processes are not displaced, piecemeal, by local ordinances. The Constitution of the State of Ohio and binding precedent of the Ohio Supreme Court make clear that city ordinances must give way to the general laws of the State. For example, municipalities may adopt and enforce within their limits only such local police regulations as are not in conflict with general laws of Ohio. City of Cleveland v. Betts, 168 Ohio St. 386 (syl.) (1958); see Ohio Constitution, Article XVIII, Section 3. Thus, a police power regulation in a city ordinance may not validly contravene a statutory enactment of general application throughout the state, and must give way if it is in conflict therewith. Betts, 168 Ohio St. at 388; see also, e.g., Am. Fin. Servs. Ass n v. City of Cleveland, 112 Ohio St. 3d 170, 173, 179 (2006) (police power ordinance that is in conflict must yield in the face of a general state law ; any local ordinances that seek to prohibit conduct that the state has authorized are in conflict with the state statutes and are therefore unconstitutional ). Ohio Revised Code 9.68 establishes the law of the State of Ohio that [e]xcept as specifically provided by the United States Constitution, the Ohio Constitution, state law, or federal law, a person without further permission or process, may own, possess, or keep any firearm, part of a firearm, its components, and its ammunition. R.C. 9.68(A). The General Assembly adopted this provision of state law having explicitly found the need to 1

6 provide uniform laws throughout the state regulating the ownership, possession, and purchase of firearms, their components, and their ammunition. Id. Thus, and as described by Ohio s Supreme Court, the statute provides that only federal or state regulations can limit an Ohioan s individual right to bear arms. City of Cleveland v. State, 128 Ohio St. 3d at 135. Local ordinances cannot. Our Supreme Court has reaffirm[ed] that R.C is part of a comprehensive statewide legislative enactment that must be read as such. Id. at 138, citing Ohioans for Concealed Carry, Inc. v. City of Clyde, 120 Ohio St. 3d 96 (2008). Moreover, it is undisputed that the statute applies to all parts of the state and operates uniformly. Id. at 140. R.C establishes police regulations and applies to all citizens generally. Id. at 141. Therefore, the Supreme Court has held that R.C is a general law that displaces municipal firearm ordinances and does not unconstitutionally infringe on municipal home rule authority. Id. at As the Supreme Court succinctly has explained R.C addresses the General Assembly s concern that absent a uniform law throughout the state, law abiding gun owners would face a confusing patchwork of licensing requirements, possession restrictions, and criminal penalties as they travel from one jurisdiction to another. Id. at 142. But that is precisely the sort of local patchwork restriction and penalty that City ordinance as codified in Municipal Code impermissibly creates. By purporting to make it unlawful for any person to own, possess, sell, or use a trigger activator, defined as a device designed or functioning to accelerate the rate of fire of a firearm to approximate an automatic weapon, including bump stocks, trigger cranks, slide fire devices, and other similar accessories, and by decreeing that whoever violates that prohibition is 2

7 guilty of a first degree misdemeanor, see Cincinnati Municipal Code (a)-(c), the City firearm ordinance imposes a local prohibition and penalty on possession of various firearm parts or components that are not otherwise currently regulated in such a fashion. The federal government currently is contemplating a proposed regulation relating to such or similar gun parts or components, but is accepting public comment on its proposal through June 27, 2018 and has not yet made any such regulation final. See 83 Fed. Reg et seq. (March 29, 2018 proposed rule on Bump-Stock-Type Devices); see also President s Memorandum for the Attorney General, 83 Fed. Reg (Feb.23, 2018) ( directing the Department of Justice... to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns ). More significantly, uniform Ohio law preempts the field and displaces municipal firearm ordinances. Cleveland v. State, 128 Ohio St. 3d at 142. Because it cannot seriously be argued that the City s ordinance is anything other than an ordinance relating to firearms, that ends the question Ohio has decided that individuals should not have to know, decipher, and understand a patchwork of local restrictions in this area, and has established that apart from zoning ordinance[s] regulating commercial sales, see R.C. 9.68(D) regulation of firearms, their components, and their ammunition shall be provided by uniform laws throughout the state. R.C. 9.68(A). Any suggestion by the City that bump stocks and the like are not encompassed within the phrase firearms, their components, and their ammunition, as later rephrased in the next statutory sentenced to comprehend any firearm, part of a firearm, its components, and its ammunition, id., flies in the face of dictionary definitions and general rules of statutory construction. When interpreting a statute, courts are to look to the plain language and the words 3

8 used should be given their usual, normal and customary meaning in that context. State ex rel. Pennington v. Gundler, 75 Ohio St. 3d 171, 173 (1996). Dictionary.com defines component to mean a constituent part; element; ingredient. Roget s 21 st Century Thesaurus, 3 rd ed. (2005) recites synonyms for the noun component to include fixings, ingredient[s], makings, peripheral[s], plug-in[s], and the like. A replacement part or device affixed to a gun that changes the way in which the weapon functions qualifies under any normal understanding of the term component. And the fact that a part or component was not original to an object does not make it any less a component. See, e.g., R.C (addressing motor vehicle assembled from component parts by a person other than the manufacturer ); State v. Helbig, 1988 Ohio App. Lexis 27 (8 th Dist. App. 1988) ( is sufficiently definite and clear to withstand vagueness challenge; Webster s New Collegiate Dictionary (1976) at p. 231 defines component as serving or helping to constitute. Component parts include but are not limited to major body parts used in rebuilding a motor vehicle. ). And here, as for example in Logan v. United States, 552 U.S. 23, 31 (2007), the context in which the word appears counsels adherence to the word s ordinary meaning. Words in a list are generally known by the company they keep. See also, e.g., Scalia and Garner, Reading Law The Interpretation of Legal Texts (Thompson/West 2012) at 195 ( Associated words bear on one another s meaning (noscitur a sociis) ). Here, where the phrases firearms, their components, and their ammunition and any firearm, part of a firearm, its components, and its ammunition extend by their terms to all parts of a firearm and even to ammunition that may be inserted into or expelled from a firearm, and where those phrases additionally are used in the context of ensuring uniform laws throughout the state extending beyond ownership, possession, purchase, and sale even to transport and storage and carrying, it would be difficult to 4

9 fathom a rule of construction under which firearm component would not include a type of gun stock or a trigger crank used as an element or ingredient of the firearm. Ohio Revised Code 9.68 does not of its own authority preclude state regulation of the sorts of parts or components that the City seeks to outlaw. Rather, it specifies that any such regulation must be accomplished by uniform laws throughout the state. The patchwork problems that the statute works to avoid, which would threaten differing prohibitions and penalties from jurisdiction to jurisdiction, is demonstrated by a comparison of this Cincinnati ordinance with a related but by no means identical ordinance recently adopted by the City of Columbus. That measure, codified in the Columbus City Code as , targets any trigger crank, bump-fire device, or any part, combination of parts, component, device, attachment, or accessory, that is designed or functions to accelerate the rate of fire of a semiautomatic firearm but not convert the semi-automatic firearm into an automatic firearm. These include, but are not limited to, firearm accessories described or marketed as bump stocks, bumpfire stocks, slide fires, and accelerators. Columbus City Code (C)(1) (punishing acquisition, possession, or use, but not sale as in the Cincinnati ordinance). This definition appears to overlap with, but not mirror, the Cincinnati Municipal Code definition at issue. And the penalties for violation appear different The Cincinnati ordinance declares a violation to be a misdemeanor of the first degree, Cincinnati Municipal Code (c), which pursuant to would call for imprisonment of up to six months and a fine of not more than $1,000. The Columbus ordinance, by contrast, purports to create a misdemeanor punishable by up to one year in jail with a mandatory minimum jail term of at least one hundred eighty (180) consecutive days and up to a $1500 fine. Those differences in statutory scope and in potential punishment illustrate the confusing patchwork of restrictions, and criminal 5

10 penalties that would confront Ohioans (and others) as they travel from one jurisdiction to another if the General Assembly s design to displace local ordinance is not honored. Ohio therefore submits this amicus brief respectfully asking that the Court enjoin operation of Cincinnati Municipal Code as in contravention of Ohio Revised Code 9.68 requiring that firearm regulations be uniform throughout the state. Respectfully submitted, MIKE DEWINE Ohio Attorney General s/ Steven T. Voigt STEVEN T. VOIGT ( ) Principal Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16 th Floor Tel Fax steven.voigt@ohioattorneygeneral.gov JONATHAN R. FULKERSON ( ) Deputy Chief Counsel FREDERICK D. NELSON ( ) Senior Advisor 30 E. Broad Street, 17 th Floor Tel Fax frederick.nelson@ohioattorneygeneral.gov jonathan.fulkerson@ohioattorneygeneral.gov Counsel for proposed Amicus Curiae State of Ohio 6

11 CERTIFICATE OF SERVICE I hereby certify that on June 22, 2018, the foregoing was electronically filed with the Clerk of the Court by using the e-filing system, and a copy of the foregoing has been sent to the following via electronic mail and regular U.S. Mail James P. Sean Maloney 8917 Eagle Ridge Court Westchester, Ohio smaloneyesq@gmail.com Ronald Lemieux P.O. Box Cleveland, Ohio rlemieux@ronaldlemieuxlaw.com David S. Kessler Blaugrund, Herbert, Martin 300 W. Wilson Bridge Road, Suite 100 Worthington, Ohio dsk@bkmplaw.com spp@bkmplaw.com Derek A. Debrosse Barney DeBrosse, LLC 503 S. Front Street, Suite 240B derek@barneydebrosse.com Counsel for Plaintiffs Paula Boggs Muething City Solicitor Cincinnati Law Department 801 Plum Street Cincinnati, Ohio paula.boggsmuething@cincinnati-oh.gov Counsel for Defendants s/ Steven T. Voigt STEVEN T. VOIGT ( ) Principal Assistant Attorney General 7