IN THE COMMON PLEAS COURT, CIVIL DIVISION FRANKLIN COUNTY, OHIO OHIOANS FOR CONCEALED CARRY, et al., Plaintiffs, v. CITY OF COLUMBUS, et al., Defendants.
: : : Case No. 18CV5216 : : Judge David E. Cain : : : :
(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 (0092879) Principal Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872 | Fax: 614-7287592 firstname.lastname@example.org JONATHAN R. FULKERSON (0068360) Deputy Chief Counsel FREDERICK D. NELSON (0027977) Senior Advisor 30 E. Broad Street, 17th Floor Columbus, Ohio 43215 Tel: 614-466-4320 | Fax: 614-466-5087 email@example.com firstname.lastname@example.org Counsel for proposed Amicus Curiae State of Ohio 1
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, 142-43 (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
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. 9.68 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. 9.68 establishes police regulations” and “applies to all citizens generally.” Id. at 141. Therefore, the Supreme Court has held that “R.C. 9.68 is a general law that displaces municipal firearm ordinances and does not unconstitutionally infringe on municipal home rule authority.” Id. at 142-43. As the Supreme Court succinctly has explained:
“R.C. 9.68 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 Columbus City Code 2323.171 impermissibly creates. By purporting to make it “unlawful” for any person to “acquire, have, carry, or use” a “trigger crank, a 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,”
including, but not limited to “bump stocks, bump-fire stocks, slide fires, and accelerators,” and then by purporting to penalize such a violation as “a misdemeanor punishable by up to one year in jail” with a mandatory minimum sentence of 180 days and a fine of up to $1,500, Columbus City Code at § 2323.171, 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. 13442 et seq. (March 29, 2018 proposed rule on “Bump-Stock-Type Devices); see also President’s Memorandum for the Attorney General, 83 Fed. Reg. 7949 (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., would fly in the face of dictionary definitions and general rules of statutory construction.
Indeed, the Columbus City Code itself explicitly uses the words “any part,
combination of parts, [or] component” in its own definition of parts and components prohibited as “illegal rate-of-fire acceleration firearm accessor[ies].” City Code § 2323.171(C)(1). Moreover, when interpreting a statute, courts are to look to the plain language and the words 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).
“component” to mean “a constituent part; element; ingredient.” Roget’s 21st Century Thesaurus, 3rd 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. 4505.111 (addressing motor vehicle “assembled from component parts by a person other than the manufacturer”); State v. Helbig, 1988 Ohio App. Lexis 27 (8th Dist. App. 1988) (4505.111 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 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 Columbus ordinance with a related but by no means identical ordinance recently adopted by the City of Cincinnati. That measure, codified in the Cincinnati Municipal Code as § 910-24, targets any “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.” Cincinnati Municipal Code § 910-24(a). This definition appears to overlap with, but not mirror, the Columbus City Code definition at issue. And the penalties for violation appear different: The Cincinnati ordinance (which unlike the Columbus ordinance also covers sale of such parts or components) declares a violation to be “a misdemeanor of the first degree,” Cincinnati Municipal Code § 910-24(c), which pursuant to § 902-5 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 penalties” that would confront Ohioans (and others) “as they travel from one jurisdiction to another” within the State 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 Columbus City Code § 2323.171 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 (0092879) Principal Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872 | Fax: 614-7287592 email@example.com JONATHAN R. FULKERSON (0068360) Deputy Chief Counsel FREDERICK D. NELSON (0027977) Senior Advisor 30 E. Broad Street, 17th Floor Columbus, Ohio 43215 Tel: 614-466-4320 | Fax: 614-466-5087 firstname.lastname@example.org email@example.com Counsel for proposed Amicus Curiae State of Ohio
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:
Lara N. Baker-Morrish Richard N. Coglianese Charles P. Campisano Columbus City Attorneyâ€™s Office 77 N. Front Street, 4th Floor Columbus, Ohio 43215 firstname.lastname@example.org email@example.com firstname.lastname@example.org
Derek A. DeBrosse Barney DeBrosse, LLC 503 S. Front Street, Suite 240B Columbus, Ohio 43215 email@example.com James P. Sean Maloney 8917 Eagle Ridge Court Westchester, Ohio 45069 firstname.lastname@example.org
Counsel for Defendants Ronald Lemieux P.O. Box 19183 Cleveland, Ohio 44119 email@example.com David S. Kessler Blaugrund, Herbert, Martin 300 W. Wilson Bridge Road, Suite 100 Worthington, Ohio 43085 firstname.lastname@example.org email@example.com Counsel for Plaintiffs
s/ Steven T. Voigt STEVEN T. VOIGT (0092879) Principal Assistant Attorney General