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Author’s note: this is part 4 in a series of educational posts I am going to write about State of Ohio and federal weapon and firearm laws. Part 1 can be found here. This post does not offer legal advice. I am not a lawyer. I am a Certified Firearm Specialist through the International Firearm Specialist Academy and the State of Ohio certifies me to teach Ohio’s weapon laws in the Basic Police Academy. I’ve spent quite a bit of time studying federal law and Ohio’s laws in 30 years on the job. More than anything, this series of posts is an attempt to educate people on portions of the law and to show them where they can find the laws so that they can educate themselves further. Please consult with an attorney who specializes in firearms and weapons law if you have questions that require a legal opinion. If you are a law enforcement officer, check with your jurisdiction’s legal counsel for guidance. And remember, not all attorneys are created equal. And keep in mind that laws, interpretations of laws and definitions change. So what was current at the time I published this article may have changed over time.
If you have not read Constitutional Carry 1 and 2, I suggest you go do so before continuing. Things will make more sense if you do. In the last article we finished up talking about the parts of 18 USC 922 that have been incorporated into the Ohio Revised Code definition of a “qualifying adult” in 2923.111. In this article, we will move on to the Ohio Revised Code sections referenced in (b).
Ohio Revised Code 2923.13 is titled “Having weapons while under disability” and is the Ohio version of 18 USC 922. However, as you will see, there are fewer circumstances that place someone under disability under Ohio law than under federal law.
(A) – To start with, notice that this section prohibits certain people from possessing firearms or dangerous ordnance. As we discussed in part 1 of this series, definitions are important. So what is a dangerous ordnance? The answer can be found in 2923.11(K). Dangerous ordnance includes explosives, incendiary devices, ballistic knives, flamethrowers and all other sorts of cool stuff, including machine guns and silencers (and before you scoff at my use of the term “silencer” I suggest you look at what federal law calls them). As you can see, this is a much broader category of items than what is covered under 18 USC 922.
(1) – so what is a “fugitive from justice”? If you look back at 18 USC 922(g)(2), the federal definition is pretty easy to understand – a “person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.” But the Ohio legislature has never seen fit to provide a definition, which means the court system has to interpret the statute to determine what “fugitive from justice” means. I have not found an Ohio Supreme Court case that offers a definition of “fugitive from justice”, which means that ultimately the definition would be made at the district appellate court level. There are twelve district appellate courts in Ohio, so theoretically, there could be twelve different definitions.
Fortunately, there aren’t twelve different definitions, but there are multiple definitions. Which means the definition can be (and is) different in Cincinnati than it is in Cleveland. Which means that each Officer has to know what the definition is in their jurisdiction. Some appellate courts require the state to prove the defendant was aware that there is a warrant for their arrest in order to be a fugitive, but other appellate courts do not. All of the appellate courts require some sort of affirmative action in order to be considered a fugitive. There is a good discussion of the ins and outs of how to decide if someone is a fugitive starting on page 4 of this decision from the 1st District Court of Appeals.
(2) – I will address this section in reverse order. What is a felony offense of violence? There is a long list of them in the definitions section of 2901.01(A)(9). Many are pretty obvious (like murder), but some are not so obvious (burglary and extortion). The are many offenses of violence that are misdemeanors. For this section, only the felony offenses count. Next, the person must be under indictment for or convicted of one of these felony offenses. And this is where things get sticky. Prior to the Bruen decision (I told you it has changed the landscape of 2nd Amendment related cases), there wasn’t much to argue. Being “under indictment for” or “convicted of” was pretty self explanatory. Post-Bruen is a much different story. For those of you who are not super familiar with the justice system, I’ll explain what being under indictment means.
In Ohio, there are several ways to be charged with a felony and these may vary slightly from jurisdiction to jurisdiction. In my area, we typically charge felonies in one of three ways: a fresh arrest, direct to grand jury and through a bill of information. I’ll try to explain these quickly, but realize this is a very general description of how things work. An example of a fresh arrest is fairly simple – we arrest someone for theft and when we search them we find stolen credit cards. Having stolen credit cards is a felony (receiving stolen property or RSP), so we can tell them they are also being charged with RSP, do the appropriate paperwork and lock them up in the jail. The appropriate paperwork includes (the next business day) getting a probable cause warrant through the local municipal court. Eventually the case would be transferred to the Court of Common Pleas because municipal courts cannot handle felony cases through to their conclusion. There are different ways the case is transferred, but they are not relevant to this discussion.
Take the same person with the same credit cards, but instead of doing a fresh arrest we could take the case direct to grand jury at a later time. This means we would do the report, gather more evidence and then discuss the case with the Prosecutor and schedule a time to present the case to the county Grand Jury. Grand Jury (GJ) proceedings are secret and one sided, meaning there is no defense attorney present to cross examine witnesses. It’s just the members of the GJ, the witness and the Prosecutor. Once the GJ hears the evidence, they will vote on whether there is probable cause for the charge presented. If the vote is in the affirmative, they will issue an indictment. Going along with the indictment is a warrant (they go to jail) or a summons (they are given a court date in the future) to serve on the defendant.
In my area, Bills of Information (BoI) are used occasionally in felony cases. A BoI is a way for a Prosecutor to file charges directly without going through the Grand Jury. The only time I have seen them used has been when there have been conversations between a defendant’s attorney and the Prosecutor and there is an agreement in place for the defendant to plead to the BoI. For example, consider a drug case where the defendant was indicted by one agency for felony drug abuse. If, during the course of the proceedings, the defendant gets caught by another agency with felony level drugs, then the Prosecutor may reach out to the defendant’s attorney and work out a deal where the additional charge is added through a BoI. This is usually done to come up with a global plea deal to resolve both cases.
This “under indictment” section of the statute has already been challenged successfully in Hamilton County. The 1st District Court of Appeals has ruled that imposing a disability just because someone is under indictment is unconstitutional in light of the Bruen decision. Like other parts of the law, I foresee further challenges to this section of the law in our post-Bruen world. Edit: Prior to publishing this article, the Ohio Supreme Court has agreed to hear a case involving this section of the law so more changes may be coming.
(3) – this section is similar to (2); however, it deals with felony drug crimes instead of violent felonies. Felony drug crimes can be found in Ohio Revised Code 2925 and Ohio Revised Code 4729.
I think that’s enough for this article. The next article will deal with the last two sections of 2923.13(A). These deal with drug and alcohol addiction and mental health issues.
Authors end note: I cannot stress this enough – the Bruen decision has changed the face of 2nd Amendment jurisprudence and we will be seeing the ripple effects of this decision for years to come. Here is a good article about Bruen.