Hamilton Appeal Nos. C , C-02013, C-02015, C , 2002-Ohio-1634 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT HAMILTON COUNTY, OHIO

Transcription

1 Hamilton Appeal Nos. C , C-02013, C-02015, C , 2002-Ohio-1634 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT HAMILTON COUNTY, OHIO CHUCK KLEIN, et al. v. SIMON L. LEIS, SHERIFF, et al. Plaintiffs-Appellees, Defendants-Appellants. MEMORANDUM OF AMICUS CURIAE VIOLENCE POLICY CENTER IN SUPPORT OF JURISDICTION AND IN SUPPORT OF APPELLANTS SIMON L. LEIS, SHERIFF, ET AL. Violence Policy Center Jennifer L. Saulino 1 ( ) th Street, NW (COUNSEL OF RECORD) Suite 600 Covington & Burling Washington, DC Pennsylvania Ave. N.W. Phone: (202) Washington, D.C FAX: (202) Phone: (202) FAX: (202) Counsel for Amicus Curiae 1 Not Admitted to the Bar of District of Columbia

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...iii I. THIS CASE INVOLVES SUBSTANTIAL CONSTITUTIONAL QUESTIONS AND IS ONE OF GREAT PUBLIC IMPORTANCE AND GENERAL INTEREST....1 A. Interest of Amicus...1 B. Substantial Constitutional Questions...3 II. STATEMENT OF THE CASE AND FACTS...5 III. ARGUMENT...7 A. First Proposition of Law: Section , standing alone or in conjunction with other state laws, does not violate Article I, Section 4 of the Ohio Constitution Section is consistent with Article I, Section Section is not rendered unconstitutional when viewed in light of other laws that make no reference to carrying weapons B. Second Proposition of Law: The affirmative defenses contained in Section are not unconstitutionally vague IV. CONCLUSION...15 ii

3 TABLE OF AUTHORITIES OHIO CASES Arnold v. City of Cleveland, 62 Ohio St. 3d 35, 616 N.E.2d 163 (1993), 67 Ohio St. 3d at , 9, 11 Buchman v. Board of Education, 73 Ohio St. 3d 260, 652 N.E.2d 952 (1995)...11 Klein v. Leis, Nos. C , C , C , C , 2002 WL (Ohio Ct. App. Apr. 10, 2002)... passim State v. Doss, 111 Ohio App. 3d 63, 675 N.E.2d 854 (Ohio Ct. App. 1996)...5 State v. Hayes, No , 1992 WL (Ohio Ct. App. Nov. 25, 1992)... 5, 7, 10 State v. Nieto, 101 Ohio St. 409, 130 N.E.2d 663 (1920)...7, 8 State v. Pauley, 8 Ohio App. 3d 354, 457 N.E.2d 864 (Ohio Ct. App. 1982)... 5, 7, 10 State v. Williams, 88 Ohio St. 3d 513, 728 N.E.2d 342 (2000)...12 OTHER CASES Application of Dailey, 465 S.E.2d 601 (W. Va. 1995)...10 Application of Metheney, 391 S.E.2d 635 (W.Va. 1990), overruled on other grounds by...10 Aymette v. State, 21 Tenn. 154, 1840 WL 1554 (1840)...10 City of Salina v. Blaksley, 83 P. 619 (Kan. 1905)...10 Dano v. Collins, 802 P.2d 1021 (Ariz. Ct. App. 1991)...11 Grayned v. City of Rockford, 408 U.S. 104 (1972)...14 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996)...15 Kalodimos v. Village of Morton Grove, 470 N.E.2d 266 (Ill. 1984)...10 Keser v. State, 706 P.2d 263 (Wyo. 1985)...14 Lutz v. City of York, 899 F.3d 255 (3d Cir. 1990)...15 iii

4 Matthews v. State, 148 N.E.2d 334 (Ind. 1958)...10 People v. Ford, 568 P.2d 26 (Colo. 1977)...15 People v. Illardo, 399 N.E.2d 59 (N.Y. 1979)...15 Rodriguez De Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989)...9 State v. McAdams, 714 P.2d 1236 (Wyo. 1986)...10 State v. Smoot, 775 P.2d 344 (Or. Ct. App. 1989)...11 Ex Parte Thomas, 97 P. 260 (Okla. 1908)...10 STATUTES AND CONSTITUTIONAL PROVISIONS Ohio Const. Art. I, Section IV... 3, 14 Ohio Rev. Code Ann Ohio Rev. Code Ann Ohio Rev. Code Ann (A)(1)... 11, 12 Ohio Rev. Code Ann (A)... 11, 12 Ohio Rev. Code Ann passim Ohio Rev. Code Ann (B)(C)...6 Ohio Rev. Code Ann and , 7 Ohio Rev. Code Ann MISCELLANEOUS FBI Supplementary Homicide Report Data (1998)...2 Donna L. Hoyert, Ph.D., et al., Deaths: Final Data for 1999, 49 National Vital Statistics Report 68 (September 21, 2001)...2 E.G. Krug, K.E. Powell & L.L. Dahlberg, Firearm-related deaths in the United States and 35 other high and upper-middle income countries, 27 Int l J. Epidemiology 214, 216, 218 (1998)...2 iv

5 Texas Department of Public Safety, List of Arrest Incidents Involving Texas Concealed Handgun License Holders (2000) (on file with VPC)...3 Violence Policy Center, Concealed Carry: The Criminal s Companion (1995), available at Violence Policy Center & Illinois Council Against Handgun Violence, Concealing the Risk: Real-World Effects of Lax Concealed Weapons Laws (1996), available at Violence Policy Center, License to Kill, and Kidnap, and Rape, and Drive Drunk (1999), available at v

6 I. THIS CASE INVOLVES SUBSTANTIAL CONSTITUTIONAL QUESTIONS AND IS ONE OF GREAT PUBLIC IMPORTANCE AND GENERAL INTEREST. The Court of Appeals invalidated on constitutional grounds a longstanding Ohio statute that merely restricts the carrying of concealed weapons. The decision below is so clearly wrong and in conflict with this Court s prior decisions that summary reversal is appropriate. Alternatively, review by this Court is warranted. A. Interest of Amicus Amicus curiae, the Violence Policy Center (the VPC ), is dedicated to reducing gun violence by applying to firearms the same health and safety standards that are applied to other inherently dangerous consumer products. Through public education, research, and advocacy, amicus approaches gun violence as a public health issue and focuses on the public safety threat posed by easy access to firearms by dangerous persons, children, and other unauthorized users, and by specific classes of firearms, most notably handguns. The VPC is at the forefront of organizations working to reduce firearms violence in our nation. Since its founding in 1988, the VPC has released more than 60 studies and books that have helped shape firearms legislation and policy on the federal, state, and local levels while increasing public understanding of firearms violence as a public health issue. In addition, VPC s Litigation Project, established in 2001, has filed amicus curiae briefs in precedent-setting cases in the federal and state trial and appellate courts. As a result of its unique expertise, VPC is often relied on and cited by national news outlets and other organizations. Its staff, which includes lawyers and health policy analysts, are nationally recognized experts on firearms violence, firearms manufacture, federal firearms law and the agencies empowered to enforce such laws (such as the DOJ and the Bureau of Alcohol, Tobacco and Firearms), and firearms litigation. America faces a public health crisis caused by the ready availability of firearms. 1

7 In 1999, 28,874 Americans were killed with guns, an estimated 20,000 from handguns alone. See Donna L. Hoyert, Ph.D., et al., Deaths: Final Data for 1999, 49 National Vital Statistics Report 68 (September 21, 2001). The rate of firearms death in the United States (14.24 per 100,000) is eight times greater than the combined rate for 25 other highly industrialized nations (1.76 per 100,000). See E.G. Krug, K.E. Powell & L.L. Dahlberg, Firearm-related deaths in the United States and 35 other high- and upper-middle- income countries, 27 Int l J. Epidemiology 214, 216, 218 (1998). Despite the staggering costs borne by society, however, the myth persists that the widespread carrying of handguns actually increases public safety by allowing citizens to defend themselves against others. In fact, for every instance in which a civilian used a handgun to kill in self-defense, fifty-one people died in homicides involving handguns. If suicides using guns are included along with homicides, that figure jumps to 134 people dying for every person killed in self-defense. See FBI Supplementary Homicide Report Data (1998). Similarly, of the 6,794 handgun homicides reported in 2000, only 62 were justifiable handgun killings of an assailant unknown to the person acting in self-defense. See id. States laws that permit the carrying of concealed weapons have only compounded the problem of gun violence. 1 In Texas, which allows licensed civilians to carry concealed weapons, license holders were arrested for 3,370 crimes between January 1, 1996 and April 30, See Texas Department of Public Safety, List of Arrest Incidents Involving Texas 1 See generally Violence Policy Center, License to Kill, and Kidnap, and Rape, and Drive Drunk (1999), available at Violence Policy Center & Illinois Council Against Handgun Violence, Concealing the Risk: Real-World Effects of Lax Concealed Weapons Laws (1996), available at Violence Policy Center, Concealed Carry: The Criminal s Companion (1995), available at 2

8 Concealed Handgun License Holders (2000) (on file with VPC). Experience has proven that dangerous people are able to obtain concealed carry licenses. Amicus therefore is interested in reversing the decision of the Court of Appeals, which amounts to a ruling permitting the nearuniversal carrying of concealed weapons in Hamilton County. B. Substantial Constitutional Questions Presented This case concerns the constitutionality of Section of the Revised Code of Ohio, a statute that regulates the carrying of concealed weapons. The decision below raises two substantial constitutional questions: (1) whether Section is unconstitutional in light of Article I, Section 4 of the Ohio Constitution; 2 and, alternatively, (2) whether two of the affirmative defenses in Section are unconstitutionally vague. Section , first enacted in 1974, prohibits the carrying of concealed weapons, but provides for affirmative defenses in cases where the accused: (1) is conducting lawful business at a time and place that renders him particularly susceptible to criminal attack to the extent that a reasonable person would be justified in going armed; (2) is engaged in a lawful purpose and has reasonable cause to fear a criminal attack so as to justify going armed; (3) is in his or her home. See Ohio Rev. Code Ann (C). The Court of Appeals held that Section is an unreasonable restriction on the right to bear arms as set forth in the Ohio Constitution, and it also concluded that the first two of the affirmative defenses set forth in Section were unconstitutionally vague. 2 Article I, Section 4 of the Ohio Constitution provides that [t]he people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power. 3

9 The decision of the Court of Appeals impermissibly infringes on the General Assembly s right to exercise its police power to place restrictions on the manner in which citizens may carry weapons. The decision below is unsupported by the language of Article I, Section 4, and ignores binding Supreme Court of Ohio precedent. Furthermore, in ruling that two of the affirmative defenses in Section are unconstitutionally vague, the Court of Appeals disregarded fundamental rules of construction expressly endorsed by this Court. Thus, this case presents substantial constitutional questions. In addition, these constitutional questions are matters of great public importance and general interest. First and foremost, the Court of Appeals decision to enjoin the enforcement of Section in Hamilton County creates a substantial threat to public safety. If the decision is permitted to stand, virtually anyone -- including an emotionally disturbed individual who has not yet been formally declared legally incompetent -- would be able to carry a concealed weapon in Hamilton County without obtaining a permit or otherwise demonstrating any degree of fitness to carry a lethal weapon. In effect, the Court of Appeals believes that the Ohio Constitution requires permitting a firearm free-for-all in which any lawful gun owner could freely carry a concealed weapon without even so much as a permit. No other state with a sizeable urban population center permits the unregulated carrying of concealed weapons. 3 There is an undeniably strong public interest in the uniform, state-wide enforcement of the laws. The Court of Appeals has enjoined enforcement of Section only in Hamilton County. The Ohio State Police and other law enforcement officials who are charged with enforcing this law in multiple jurisdictions will have to exercise their authority 3 Only Vermont permits the carrying of concealed weapons without a license. 4

10 differently, depending on whether they are in, or outside of, Hamilton County. In addition, unless this Court corrects the error made by the Court of Appeals, there is a high probability that other courts within the state will decline to follow the aberrant holding below, and instead will continue to apply Section , as they have done for the past three decades. See, e.g., State v. Doss, 111 Ohio App. 3d 63, 675 N.E.2d 854 (Ohio Ct. App. 1996) (applying Section ); State v. Hayes, No , 1992 WL , at *4 (Ohio Ct. App. Nov. 25, 1992) ( we note there is no constitutional right to carry a concealed weapon ); State v. Pauley, 8 Ohio App. 3d 354, 357, 457 N.E.2d 864, 867 (Ohio Ct. App. 1982) ( the notion that there is a personal right to carry concealed weapons that is a fundamental right under the United States and Ohio Constitutions has been repeatedly and emphatically rejected ). A government s duty to secure the safety of its citizens is of paramount importance. The people of Ohio, acting through their duly elected representatives, made a policy choice to ensure their safety, in a manner consistent with their state constitution, by enacting Section The Court of Appeals ignored three decades of police enforcement and judicial interpretation of Section , and decreed that the popular will should no longer be given effect. Unless this ill-considered decision is reviewed by this Court, enforcement of this important statute will be subject to an open-ended period of confusion and uncertainty. Accordingly, this case is of great public importance and general interest. II. STATEMENT OF THE CASE AND FACTS Plaintiffs are persons who claim to carry concealed weapons and to have affirmative defenses under Section They filed this lawsuit against the State of Ohio and various municipalities within the State, seeking a declaratory judgment that Section is unconstitutional, and seeking to enjoin enforcement of the statute. Plaintiffs also sought to 5

11 enjoin enforcement of subsections (B) and (C) of Section of the Ohio Revised Code, a statute regulating the carrying of weapons in motor vehicles, because those provisions are subject to the affirmative defenses contained in Section (C). See Pls. Third Am. Compl. at 12. The Court of Common Pleas held that Sections and , as well as the provisions of Sections and of the Ohio Revised Code that concern the rights of private investigators to carry concealed weapons, are unconstitutional because the Court read Article I, Section 4 as granting Ohioans the right to carry concealed weapons. See Klein v. Leis, Findings of Fact and Conclusions of Law at 26 (Ct. Common Pleas Jan. 10, 2002). The Court of Common Pleas also held that Sections and , along with the relevant provisions of Section and , violated the Equal Protection clause of the Ohio Constitution because government officials have broader rights to carry concealed weapons under the statutes than do civilians. In addition, the Court concluded that these same statutes were unconstitutionally vague. Based on these findings, the Court of Common Pleas enjoined enforcement in Hamilton County of Sections and , and the relevant portions of Sections and See Final Judgment Entry Granting Declaratory Judgment and Permanent Injunction at 2-3. The Court of Appeals affirmed that portion of the judgment of the Court of Common Pleas that struck down Section In holding that the statute violated Article I, Section 4, the Court reasoned that the statute, in conjunction with other statutes and the practice of arrest for openly carrying a firearm, acts as a total prohibition on the carrying of firearms. Klein v. Leis, Nos. C , C , C , C , 2002 WL , at *4 (Ohio Ct. App. Apr. 10, 2002). In addition, the Court of Appeals ruled that the affirmative defenses contained in Section are unconstitutionally vague. Id. at *6. The Court also held that 6

12 subsections (B) and (C) of Section are unconstitutional because they incorporate affirmative defenses contained in Section that the Court found unconstitutionally vague. 4 See id. at *5. The Court of Appeals lifted the stay of the injunction granted by the Court of Common Pleas. See id. at *9. On April 25, 2002, however, this Court granted appellants motion for an emergency stay pending appeal. See Case Announcements, Motions and Procedural Rulings (Ohio April 25, 2002). III. ARGUMENT A. First Proposition of Law: Section , standing alone or in conjunction with other state laws, does not violate Article I, Section 4 of the Ohio Constitution. 1. Section is consistent with Article I, Section 4. Section only restricts an individual s ability to carry a concealed weapon. The statute does not violate Article I, Section 4, because, as has long been settled in Ohio, that constitutional provision does not confer the right to carry concealed weapons. See State v. Nieto, 101 Ohio St. 409, 413, 130 N.E.2d 663, 664 (1920) (because statute only applied to concealed weapons, it did not violate Article I, Section 4); State v. Hayes, 1992 WL , at *4 ( there is no constitutional right to carry a concealed weapon ); State v. Pauley, 8 Ohio App. 3d at 357 (Ohio Ct. App. 1982) (no personal right to carry concealed weapons under the Ohio Constitution). 4 The Court of Appeals also modified the trial court s injunction so that it no longer applies to portions of Sections and ; in so doing, the Court reasoned that these provisions were rendered innocuous by its holding that Section was unconstitutional. See id. at *8. 7

13 In Nieto, this Court squarely held that a statute that merely prohibits the carrying of a concealed weapon does not violate Article I, Section 4. See Nieto, 101 Ohio St. at 413. The statute at issue in Nieto, the predecessor to Section , prohibited a person from carrying a pistol, bowie knife, dirk, or other dangerous weapon concealed on or about his person. Id. at 412. Noting that [t]he statute does not operate as a prohibition against carrying weapons, but as a regulation of the manner of carrying them, the Court reasoned that the statute was constitutional because [t]he Constitution contains no prohibition against the Legislature making such police regulations as may be necessary for the welfare of the public at large as to the manner in which arms shall be borne. Id. at 413. Section is less restrictive than the statute at issue in Nieto because it provides a self-defense exception. Accordingly, Nieto compels the conclusion that Section is not unconstitutional under Article I, Section 4. The Court of Appeals, faced with the controlling precedent of Nieto, stated without further elaboration: we believe State v. Arnold [Arnold v. City of Cleveland, 67 Ohio St. 3d 35, 48, 616 N.E.2d 163, 173 (1993)] has superseded Nieto. Klein, 2002 WL , at *3. In Arnold, this Court held that a local ordinance prohibiting possession and sale of assault weapons was a reasonable restriction of the right to bear arms for defense and security. Arnold cited Nieto for the proposition that firearm controls are within the ambit of the police power, 67 Ohio St. 3d at 47, but otherwise did not discuss the case. If anything, the Arnold decision s reliance on Nieto reaffirms the case s status as controlling precedent. Thus, the Court of Appeals puzzling assertion that Arnold superseded Nieto is unsupported and contrary to the principle that lower courts should not declare higher court precedents to be overruled absent an express statement by the higher court. See Rodriguez De Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) ( If a precedent of this Court has direct application in a case, yet 8

14 appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decision. ). The Court of Appeals application of the standard of review shows a similar lack of deference to Supreme Court precedent. The Court of Appeals announced its belief that the reasonable restriction standard of review applied by this Court in Arnold was incorrect, and that this Court instead should have applied a strict scrutiny analysis. Although the Court of Appeals purported to apply the same reasonable restriction test used in Arnold, the Court applied what amounted in practice to a strict scrutiny standard of review. It did so, for instance, by characterizing Section a conventional concealed carry restriction -- as subject[ing] an innocent person to prosecution for a felony, Klein, 2002 WL , at *2, and as creating a supposedly unique situation where a citizen is guilty until proven innocent, id. This reasoning was apparently motivated by the Court s historical perspective: [w]e are America, where the Pilgrims shot their Thanksgiving turkeys. We are not a country where power is maintained by people with guns over people without guns. Id. at *1. Accordingly, the Court of Appeals found that the statute was unreasonable, in that it passes no level of judicial scrutiny. Id. at *3 (emphasis in original). The decision below also conflicts with decisions of other Courts of Appeals in Ohio that have considered the constitutionality of Section and other statutes that apply to concealed weapons. In those cases, the courts expressly rejected the argument that a statute that merely regulates the carrying of concealed weapons violates the constitutional right to bear arms. For example, in State v. Hayes, 1992 WL , at *4, the Court of Appeals held that the defendant s conviction under Section did not violate his constitutional rights because 9

15 there is no constitutional right to carry a concealed weapon. Similarly, in State v. Pauley, 8 Ohio App. 3d at 357, the Court concluded that a defendant s conviction under Section for carrying a weapon while under disability did not violate his constitutional rights, because there is no personal right to carry concealed weapons under the Ohio Constitution. The decision below not only contravenes the controlling decisions of this Court and of other Courts of Appeals in Ohio; it also conflicts with decisions of courts in other states interpreting constitutional right-to-bear-arms provisions similar to Ohio s. Courts around the country have repeatedly rejected arguments that laws prohibiting or otherwise restricting the carrying of concealed weapons, or classes of weapons that may be concealed, such as pistols, violate state constitutional right-to-bear-arms provisions. See, e.g., Application of Metheney, 391 S.E.2d 635, (W.Va. 1990) (state constitutional right to bear arms provision does not include right to carry concealed weapons), overruled on other grounds by Application of Dailey, 465 S.E.2d 601 (W. Va. 1995); State v. McAdams, 714 P.2d 1236, 1238 (Wyo. 1986) (statute prohibiting the carrying of concealed weapons does not violate state constitutional right to bear arms); Kalodimos v. Village of Morton Grove, 470 N.E. 2d 266 (Ill. 1984) (local ordinance banning possession of operable handguns permissible under constitutional right-to-bear-arms provision); Matthews v. State, 148 N.E.2d 334, 338 (Ind. 1958) (statute prohibiting carrying of pistols except at home or fixed place of business did not violate state constitutional right to bear arms); Ex Parte Thomas, 97 P. 260 (Okla. 1908) (carrying of pistol may be prohibited in spite of constitutional right to bear arms); City of Salina v. Blaksley, 83 P. 619 (Kan. 1905) (no constitutional right to carry a pistol); Aymette v. State, 21 Tenn. 154, 1840 WL 1554 (1840) (right to bear arms provision does not create a right to carry concealed weapons); Dano v. Collins, 802 P.2d 1021, (Ariz. Ct. App. 1991) (statute prohibiting the carrying of 10

16 concealed weapons does not violate state constitutional right to bear arms); State v. Smoot, 775 P.2d 344, 345 (Or. Ct. App. 1989) (statute prohibiting carrying of concealed switchblade knife does not violate state constitutional right to bear arms). 2. Section is not rendered unconstitutional when viewed in light of other laws that make no reference to carrying weapons. Section of the Ohio Revised Code proscribes conduct that threatens harm to persons or property. Ohio Rev. Code Ann (A)(1). Likewise, Section prohibits threatening to commit any offense of violence, or otherwise caus[ing] serious public inconvenience or alarm. Ohio Rev. Code Ann (A). Neither statute refers to the carrying of weapons. Nevertheless, the Court of Appeals reasoned that Section is unconstitutional because the statute, in conjunction with [the practice of arrest for openly carrying a firearm under Sections and ], acts as a total prohibition on the carrying of firearms. See Klein, 2002 WL , at *4. The Court s assertion sets up a strawman by exaggerating the combined impact of Sections , and in order to reach an unsupported and unsupportable result. In mischaracterizing the scope of the statutes, the Court of Appeals violated two cardinal rules that govern determinations concerning the constitutionality of statutes: (1) a statute is entitled to a presumption of constitutionality; and (2) a statute must not be invalidated unless it is unconstitutional beyond a reasonable doubt. See Arnold, 67 Ohio St. 3d at The Court of Appeals decision is also at odds with the rule that statutes should be interpreted so as to avoid raising constitutional questions. See Buchman v. Board of Educ., 73 Ohio St. 3d 260, 269, 652 N.E.2d 952, 960 (1995) (where two reasonable interpretations of a statute exist, court has duty to choose interpretation that avoids raising constitutional questions). In this case, the Court of Appeals purported to identify three statutes that, according to the Court, 11

17 violated the constitutional right to bear arms when taken together. However, two of the three statutes, Sections and , do not even mention the bearing of arms. Rather than holding the third statute, Section , to be unconstitutional -- a novel approach, to be sure -- the Court should have construed the former two statutes as not applying to every instance in which weapons are openly carried, thereby avoiding the rigged constitutional question that led it to invalidate a legislative enactment. Review by this Court is warranted to define the proper scope and interplay of these three statutes that led the Court of Appeals precipitously to conclude that Section violate the Ohio Constitution. B. Second Proposition of Law: The affirmative defenses contained in Section are not unconstitutionally vague. In order to survive a void-for-vagueness challenge, the statute at issue must be written so that a person of common intelligence is able to determine what conduct is prohibited, and the statute must provide sufficient standards to prevent arbitrary and discriminatory enforcement. State v. Williams, 88 Ohio St. 3d 513, 532, 728 N.E. 2d 342, (2000). The two affirmative defenses to Section that are at issue in this case 5 provide ample guidance to, and are easily applied by, ordinary citizens and law enforcement officials alike. The language of the two affirmative defenses is clear and straightforward. Section (C)(1) provides that it is an affirmative defense to the charge of carrying a concealed weapon if the weapon was carried or kept ready at hand by the actor for defensive 5 The Court of Appeals held unconstitutionally vague the affirmative defenses in subsections (1) and (2) of Section (C). The third statutory affirmative defense, set forth in subsection (3), permits the carrying of concealed weapons in one s home so long as the actor has a lawful purpose in carrying the weapon. See Ohio Rev. Code Ann (C)(3). The Court of Appeals did not suggest that this affirmative defense was unconstitutionally vague. 12

18 purposes, while the actor was engaged in or was going to or from the actor s lawful business or occupation, which business or occupation was of such character or was necessarily carried on in such manner or at such a time or place as to render the actor particularly susceptible to criminal attack, such as would justify a prudent person in going armed. Ohio Rev. Code Ann (C)(1). Section (C)(2) applies if the weapon was carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in a lawful activity and had reasonable cause to fear a criminal attack upon the actor or a member of the actor s family, or upon the actor s home, such as would justify a prudent person in going armed. Ohio Rev. Code Ann (C)(2). Although the Court of Appeals professed to be perplexed by these statutory provisions, the Court was able to break down the statutory language contained in each affirmative defense into four distinct elements. See Klein, 2002 WL , at *4. The Court, however, neglected to identify which element(s) of the defenses it found to be vague, and failed to explain why the particular element was purportedly vague. The only clue to the Court s asserted confusion about the simple statutory language is contained in the Court s statement that to exercise a fundamental constitutional right, citizens must chance their liberty to the vagaries of what a random judge or jury might find reasonable. Id. at *6. But this statement begs the question, as there is no fundamental constitutional right to carry a concealed weapon. It follows that even if there were a rule creating a higher burden for statutes restricting the exercise of a fundamental constitutional right, such a rule would have no application here. 6 6 The bootstrapping nature of the Court s reasoning pervades its opinion. Although the Court did not expressly state that the constitutional right to bear arms necessarily included the right to carry concealed weapons, the Court of Appeals repeatedly invoked a so-called right to carry concealed weapons to support its conclusion. See, e.g., Klein, 2002 WL , at * 4 ( no (continued ) 13

19 In addition, numerous criminal statutes contain affirmative defenses that require the accused to show that the conduct at issue was reasonable under the circumstances. See, e.g., Ohio Rev. Code Ann (affirmative defense to charge of criminal child enticement that the actor undertook the activity in a reasonable belief that it was necessary to preserve the health, safety, or welfare of the child ); Ohio Rev. Code Ann (element of affirmative defense to coercion is that actor s conduct was a reasonable response to the circumstances which occasioned it ). Similarly, the well known common-law defenses of self defense and justification have long required juries to determine the reasonableness of the defendant s actions. See, e.g., Keser v. State, 706 P.2d 263, 269 (Wyo. 1985) (noting that half of American jurisdictions have a parental-authority-justification defense either by statute or common law to the crime of child abuse); Ohio Rev. Code Ann (murder statute requires accused not to have acted with justification or excuse). Moreover, even constitutionally protected interests are frequently subject to reasonable government restriction. Despite the Court of Appeals claim, proffered without any citation to supporting cases, that [t]he exercise of no fundamental rights subjects a citizen to arrest, Klein, 2002 WL , at *4, courts have long upheld statutes that prohibit the exercise of constitutional rights in certain circumstances. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 115 (1972) (reasonable time, place and manner restrictions on free speech permissible); Jolly v. Coughlin, 76 F.3d 468, 475 (2d Cir. 1996) (free exercise of religion under First Amendment subject to reasonable restrictions); Lutz v. City of York, 899 F.3d 255, 268 (3d Cir. Ohioan can exercise the constitutional right to bear arms, whether concealed or unconcealed, without risking jail ); id. (Section thwarts a fundamental right that was granted by our forebears and the drafters of our Ohio Constitution ). 14

20 1990) (fundamental right to intrastate travel subject to time, place, and manner restrictions). Similarly, in posing the rhetorical question [s]hould we jail people for publishing a newspaper, then require them to prove that what was published was not libelous or obscene?, Klein, 2002 WL , at *4, the Court of Appeals ignored the fact that numerous statutes provide for constitutional rights to be asserted as affirmative defenses, and that these statutes have been upheld as constitutional. See, e.g., People v. Illardo, 399 N.E.2d 59, 63 (N.Y. 1979) (affirmative defense to publishing of obscene material not constitutionally vague); People v. Ford, 568 P.2d 26, 29 (Colo. 1977) (affirmative defense to gun possession offense based on claimed constitutional right to bear arms does not violate due process rights). Finally, a statute is not unconstitutionally vague merely because of the possibility that law enforcement officials and triers of fact may be required to determine whether an accused s conduct was reasonable under the circumstances. See People v. Illardo, 399 N.E.2d at 63 ( though there may be imaginable instances in which some difficulty in determining on which side of the line a particular fact situation falls, this alone does not render the statute s language impermissibly vague ). This rule applies regardless of whether the necessity for making the reasonableness determination arises from the statutory provision that defines the criminal offense or that sets out an affirmative defense. See Illardo, 399 N.E.2d at 63. IV. CONCLUSION Section , standing alone or in conjunction with other statutes, does not violate Article I, Section 4 of the Ohio Constitution, and the statute is not unconstitutionally vague. This Court should summarily reverse the Court of Appeals decision or in the alternative, it should grant review of the decision below, which raises both substantial constitutional questions and issues of public importance and great general interest. 15

21 Dated: May 24, 2002 Respectfully submitted, Original Signed By Ms. Saulino OF COUNSEL: Jennifer L. Saulino 2 ( ) Mathew S. Nosanchuk (COUNSEL OF RECORD) M. Kristen Rand Alan A. Pemberton Violence Policy Center Elliott Schulder th Street, NW Edward M. Mathias 1, 2 Suite 600 Covington & Burling Washington, DC Pennsylvania Ave. N.W. Phone: (202) Washington, D.C FAX: (202) Phone: (202) FAX: (202) Counsel for Amicus Curiae 1 Member of the Bar of New York 2 Not Admitted to the Bar of District of Columbia 16

22 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing memorandum in support of jurisdiction has been served by regular U.S. mail, postage prepaid, this 24th day of May, 2002 upon: Timothy Smith, Esq. William M. Gustavson, Esq. 119 East Court Street, Suite Building, Suite 275 Cincinnati, OH Building Cincinnati, OH Michael K. Allen, Esq. Fay Dupois, Esq. David Stevenson, Esq. Richard Ganulin, Esq. John Arnold, Esq. Cincinnati City Solicitors Hamilton County Prosecutor s Office 214 City Hall, 801 Plum Street Administration Division Cincinnati, OH E. Ninth Street, Suite 4000 Cincinnati, OH David W. Stegman, Esq. Kimberly S. Amrine, Esq. Jenks, Surdyk, Oxley, Turner Frost Brown Todd LLC & Dowd, Co., LPA 2200 PNC Center First National Plaza, Suite East Fifth Street 130 West Second Street Cincinnati, OH Dayton, OH Betty D. Montgomery, Esq. Darrell M. Pierre, Jr., Esq. David S. Timms, Esq. Kirk Lindsey, Esq. 30 E. Broad Street, 17th Floor Columbus, OH Original Signed By Ms. Saulino JENNIFER L. SAULINO, ESQ. Counsel for Violence Policy Center as Amicus Curiae 17