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ORA IN THE SUPREME COURT OF OHIO CITY OF CLEVELAND, Case No V. Plaintiff-Appellee, On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District STATE OF OHIO, Defendant-Appellant
ORA IN THE SUPREME COURT OF OHIO CITY OF CLEVELAND, Case No V. Plaintiff-Appellee, On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District STATE OF OHIO, Defendant-Appellant BRIEF OF AMICUS CURIAE NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., IN SUPPORT OF APPELLANT STATE OF OI3IO LYDY& MOAN, L'1'D. Daniel T. Ellis ( ) Counsel of'record Frederick E. Kalmbach ( ) 4930 Holland-Sylv uiia Rd. Sylvania, Ohio Telephone: (419) Facsimile: (419) Counsel for Amicus Curiae, National Rifle Association of America, Inc. Robert J. Triozzi ( ) Director of Law Richard A. Cordray( ) Attorney General of Ohio Benjamin C. Mizer ( ) Solicitor General -Counsel ofrecord Pearl M. Chin ( ) Assistant Attorney General 30 East Broad Street, 17th Floor Columbus, Ohio (614) (614) (Fax) Counsel for Defendant-Appellant The State of Ohio Gary S. Siugletary ( ) Assistant Director of Law -C:ounsel of Record City of Cleveland 601 Lakeside Avenue Room 106 Cleveland, Ohio (216) (216) (Fax) Counsel for Plaintiff-Appellee The City of Cleveland (J{ (:(1Ut; TABLE OF CONTENTS TABLE OF AUTHORI'I'IES... ii IN'1RODUC'I ION STATEMENT OF INTERES'I' OF AMICUS CURIAF STATEMENT OF TIIE CASF FACTS APPLICABLE STANDARDS ARGLJMFNT Proposition of Law No. 1. Because R. C is part of a comprehensive, statewide legislative schenie that regulates firearnzs, it is a general law that displaces munieipal firearm ordinances... 9 A.The appellate court erred by failing to consider the entire scope of firearm regulation applicable to the state... 9 B. Enactment of R.C by the (iencral Assembly was a valid regulatory exercise of the State's police power intended to protect and define the constitutional rights of all persons witlrin the State, and is consistent with history of federal and state legislative bodies in enacting statutes to protect such rights C. `I'he appellate court erroneously equated regulation solely with prohibition, failing to consider the role of regulation in broadly enabling civil rights...17 D. R.C. 9.68, and the related state aud federal firearm regulation it countenances, exercise the police power of the state and do not purport only to limit legislative power of municipalities The Gener al Assembly may validly exercise its police power to autlsorize, or everi require, citizens to possess firearms to promote public safety notwithstanding contrary provisions in ordinances...21 2. 2'he General Assenably enacted R.C in exercise of its police powers and such enactrnent did not pur port only to limit legislative power qf a municipal corporation to set forth police, sanitary or similar regulations E. R.C. 9.68, and the related state and federal fireaini regulation it countenances, prescribe rules of conduct upon citizens generally Proposition of Law No. 2. 'L'he atithorization for awards of attorney fees and costs in R.C does not violate separation of powers CON CLUSION......:...: : : , ,...27 CERTIFICA I'E OF SERVICE TABLE OF AUTHORITIES Cases... AmericanTins. Servs. Assn, v. Cleveland, 112 Ohio St.3d 170, 2006-Ohio Arnold v. City of Cleveland (1993) 67 Ohio St.3d lackman v. City ofcincinnati (1941), 66 Ohio App ,23 Blackman v. City of Cincinnati (1942), 140 Ohio St ,23 Canton v. State of Ohio, 95 Ohio St.3d. 149, 2002-Ohio Passim Christianson v. C:oltIndtcstries Operating Corp. (1986) 486 U.S Cincinnati v. Baskin, 112 Ohio St.3d 279, 2006-Ohio ,19 City ofchicago v. Haworth (1999), 303 Ill.App.3d 451, 708 N.E.2d City ofcleveland v. State (8t Dist) No , 2009-Ohio Passim City of Portland v. Lodi (1989), 94 Or. App. 735, 767 P.2d Cleveland v, Fulton (2008) 178 Ohio App.3d District of Columbia v. Heller (2008), - U.S. -, 128 S.Ct. 2783, 171 L.Ed.2d Doe v. City & County of San Francisco (1982), 136 Cal. App.3d 509, 186 Cal. Rptr Doe v. Portland Housing Authority (Me. 1995), 656 A.2d Divyer v. F'arrell (1984), 193 Conn 7, 475 A.2d Fiscal v. City & County ofsan Francisco (Cal. App. 1 Dist. 2008), 158 Cal. App.4th 895, 70 Cal. Rptr.3d Grayned v. City ofrockfbrd (1972), 408 U.S IIC Gun & Knife Shows, Inc. v. City of^houston (5th Cir. 2000), 201 F.3d Holiilay Homes, Inc. v. Butler Cly. Bd. ofzoningappeals (1987), 35 Ohio App.3d Houston v. Wright, (1864) 15 Ohio St In re Reilly (Ohio Corn. P ), 31 Ohio Dec. 364, 1919 WL Kellogg v. City of Gary (Ind. 1990) 562 N.E.2d Klein v. Leis (2003), 99 Ohio St.3d ,23 Linndale v. Statc (1999) 85 Ohio St.3d Michigan Coalition, for Responsible Gun Owners v. City of Ferndale (2003), 256 Mich. App. 401,414,662N.W.2d Montgomery County v. Maryland (1985), 302 Md. 540, 489 A.2d NRA v. City ofsouth Miami (Fla. 3d DCA 2002), 812 So.2d Ohioans for Concealed Carry, Inc. v. City of Clyde, 120 Ohio St.3d 96, 2008-Ohio Passim Ortiz v. Commonwealth (1996), 545 Pa. 279, 681 A.2d ,15 Peoples Rights Organization, Inc. v. City ofcolumbus (6th Cir. 1998), 152 F.3d Perdue v. Kenny (U.S. 2010) 2010 WI, I Rinzler v. Carson (Fla. 1972) 262 So. 2d argent v. Moore, (Ohio Super. 1855) 12 Ohio Dec. Reprint 511, 1855 WL Schwanda v. Bonncy (Me. 1980), 418 A.2d Screws v. United States (1945), 325 U.S Sprin = celdarmory, Inc. v. City of Columbus (6th Cir. 1994), 29 F.3d State ex rel. Hayes v. Davies (Ohio Cir. Ct. 1905), 17 Ohio C.D. 601, 1905 WL State u Ulrich (1984), 17 Ohio App.3d Stale v. dvilliams (2008), 88 Ohio St.3d Thomas v. Clevelcmd (2008) 176 Ohio App.3d ,27 Wilt v. Madigan, (Ohio Cir. Ct. 1902) 14 Ohio C.D. 263, 1902 WL United States Constition Amendment X Ohio Constitution Article I, Section Article ti, Scction Article IX, Section l...21 Article XVIII, Section , 6,13 Article V III (1802) Statutes 18 U.S.C U. S.C U.S.C U.S.C iv 42 U.S.C (,27 Ohio General Code R. C Pas s ina R.C R. C R. C ,18 R. C R.C R. C R. C (G) ,18 House Bill Sub. H.B ,10 Other Authorities Baldwins Oh. Prac Crim 1, (2007) Blackstone, C'ommentaries Harold E. Johnson, Small Arms Indentification and Operation Giude - Eurasian Communist Countries (Defense hitelligence Agency) Christopher S. Koper, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violetice, (Reportto the National Institute of Justice, U.S. Dept. of.f ustice 2004), 10 J. Nathanson, Congressional Power to Contradict the Supreme Court's Constitutional Deeisions, 27 Wm. & Mary L. Rev. 331 (1986) Suetonius, Lives of the Twelve Caesars...24 Comment, When the Supreme Court Restricts Constitutional Rights, Can Congress Save Us? 141 tjniv. Pa. L. Rev (1993)...14 v INTRODUCTION This case concerns the whether the General Assembly, in recognition of changes in society, changes in patterns and frequency of travel, and changes in thinking and attitudes as to how best insure public safety, niay enact a statute for the purpose of enabling the constitutional rights of the state's citizens and visitors to keep and bear ailns, unimpaired by a patchwork of inconsistent municipal regulation, and in so doing to afford them the ability to protect their lives, families, and property as intended by the Assembly. The City of Cleveland, however, seeks to maintain, within the boundaries of the City, its own regimen of regulation, providing criminal penalties for those in full compliance with all state and federal regulation of firearms, and effectively negating the need recognized by the members of the General Assembly, representing all cozners of the state, f or imiform regulation such that citizens may exercise their rights to keep and bear arms free from concern that merely crossing a nnmicipal boundary may unwittingly turn their activity from law-abiding to criminal. Since the inception of this case in the Court of Common Pteas of Cuyahoga Count,v, this Court, in Ohioans fnr Concealed Ccarry, Inc. v. City of Clyde, 120 Ohio St.3d 96, 2008-Ohio has addressed the issuc of whether R.C. 9.68, and other statutes amended in Sub. II.B. 347 ( H.B. 347 ), may invalidate a local ordinance in conllict with them, and has ruled that an ordinance of the City of Clyde in conflict with such statutes was unconstitutional. The Court's opinion, which shouid provide the guidance needed to decide the case beforc the bar, stated unequivocally that [s]imply put, the General Asseinbiy, by enacting R.C. 9.68(A), gave persons in Ohio the right to carry a handgun unless federal or state law prohibits them from doing so... [a] municipal ordinance can not infi inge on that broad statutory right. Id at 20. As discussed inf^a, R.C pertains to more than handguns, it established limits on municipal regulation of 1 all firearins, their components and anvnunition, and for the very same reasons the statute was found constitutional in the application of its limits to the nnmicipal ordinance in Clyde, so too, is R.C valid and constitutional with respect to other municipal ordinances which conflict and restrict the rights R.C seeks to protect. The Court of Appeals, Eighth Appellate District, County of Ctryahoga ( Eighth District ) in its judgment and opinion in Case No , eited in declaring R.C unconstitutional and finding that the General Asscmbly's enactment of the statute violated the separation of powers doctrine of the Ohio Constitution, coming to its conclusion in clear disregard of the determination of this Court in Clyde and prior Home Rule jurisprudence, and for those reasons, as more fully described below, the judgment of the Eight District should be reversed. STATEMENT OF INTEREST OF AMICUS CURIAE 1'he National Rifle Association of America, Inc. ( NRA, amicus ) is a New York notfor-profit membership corporation founded in NRA has roughly four million individual members and 10,700 affiliated members (clubs and associations) nationwide. Its purposes and objectives, as set forth in its Bylaws, are: 1. To protect and defend the Constitution of the United States, especially with reference to the inalienable right of the individual American citizen guaranteed by such Constitution to acquire, possess, transport, carry, transfer ownership of, and enjoy the right to use arms, in order that the people may always be in a position to exercise their legitimate individual rights of self-preservation and defense of family, person, and property, as well as to serve effectively in the appropriate nrilitia for the common defense of the Republic and the individual liberty of its citizens; 2. 'I'o promote public safety, law and order, and the national defense; 3. To train members of law enforcement agencies, the armed forces, the militia, and people of good repute in marksnianship and in the safe handling and efficient use of small arms; 2 4. To foster and promote thc shooting sports, nicluding the advancement of amateur competitions in rnarksrnauship at the local, state, regional, national and international levels; 5. To promote hunter safety, and to promote and defend hunting as shooting sport as a viable and necessary rnethod of fostering the propagation, growth and conservation, and wise use of our renewable wildlife resourees. 1'he NRA has a strong interest in upholding the rights of its members and all law-abiding citizens to keep and bear arms as protected in the constitutions of each state, including Ohio, and in ensuring the right to notice and due process of law regarding the carrying and possession of firearms. The NRA regularly litigates and files amicus curiae briefs in matters related to the right to keep atid bear arnis as guaranteed in the state and federal constitutions. This brief seeks to assist the Court by providing textual analysis and comparative law that may not be set fortli in the briefs of the pai-ties and the other amici. In addition to representing the interests of its Ohio members, the NRA has numerous members nationwide who travel to and in Ohio and who are adversely affected by local ordinances that are inconsistent with uniform statewide standards in Ohio. Ohio law provides for reciprocity agreements with other states entered into by the Attorney General under which licenses to carry concealed handguns are honored within such states. lnconsistent local ordinances in effect nullily such agreements and violate the rights of all qualified persons. STATEMENT OF THE CASE The City of Cleveland, on March 14, 2007, the effective date of R.C. 9.68, filed a declaratory judgment action against the State of Ohio ( State ) in the Court of Comrnon Pleas of Cuyahoga County (Case No ) in which Cleveland sought to have R.C declared unconstitutional as infringing on powers reserved to municipalities under the IIome Rule Amendment to the Ohio Constitution, Article XVIII, Section 3, Ohio Constitution. 3 The Attorney Gcneral for the State of Ohio tiled an Answer on April 17, 2009, generally denying factual assertions and asserting that R.C is constitutional in all respects. Subsequent to a pretrial hearing on May 2, 2007, Cleveland and the State filed motions for sumniary judgment on July 16, 2007, briefs in opposition to the opposing niotions for summary.judgnent on Jaly 30, 2007, and reply briefs on August 13, After notice of related proceedings pending with the Supreme Court of Ohio in Ohioans for Concealed Carr y, Inc.v. City bf Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, the court held its rulings on the motions for surnmary judgment as well as the motion to intervene of the NRA, pending decision in the Supreme Court case. On September 18, 2008 tbe Ohio Supreme Court announced its decision in the Clyde case, ruliiig that the local firearm ordinance under consideration was uncoiistitutional, including within its opinion the statement that [s]imply put the General Assembly, by enacting R.C. 9.68(A), gave persons in Ohio the right to carry a handgun unless federal or state law prohibits them from doing so...(a] municipal ordinauce can not infringe on that broad statutory right. Id. at 20. On January 2, 2009, the trial court in this case, entered its journal entry of linal judgment, ordering that pursuant to the decision of the Ohio Supreme Court in Ohioans for Concealed Carry v. Clyde, that R.C is constitutional and does not violate the Home Rule Amendment of the Ohio Constitution, that the General Assembly did not abuse its power in enacting R.C nor did the enactment violate the single subject rule. Subsequent to the entry of final judgment Cleveland filed its notice of appeal on January 9, 2009, CA No The Eighth Appellate District released its decision and opinion on the appeal in November of 2009, reversing the decision of the trial court, and finding that R.C was not a general law of the state, that it unconstitutionally attempted to limit mwiicipalities home rule police powers, and that the enactment of R.C violated the separation of powers doctrine espoused by the Ohio Constitution. FACTS Relevant facts of the case ptimaiily concern the filings of the parties as stated in the Statement of the Case. 'I'he parties filed cross-motions for summary judgment in the trial court predicated on no material issues of fact. Without significant factual issues, and none of note in dispute, the factual circumstances of the present case are principally contextual. However, in that regard, amicas rejects the statement of facts previously provided in Cleveland's merit brief filed in the Eighth District Appeal to the extent they are subjective and argumentative, in particular the statement that R.C. 9.68, jeopardizes the safety and welfare of Cleveland's citizens. Cleveland, in stating its position, has entirely neglected the safety and welfare benefits that the right to keep and bear arms provides to law abiding citizens in urban areas such as the City of Cleveland and the substantial risk such citizens face by the restrictions Cleveland places on their ability to personally defend their lives and property. In support, amicus cites to pages 16 through 18 of' the appellate court merit brief of the ainici curiae Legal Community Against Violence, et al., purportedly filed to support Cleveland's positions in the Eighth District appeal, but in fact demonstrative of the substantially higher rate of violent crime perpetrated in the City of Cleveland compared to other areas of the state, despite decades of significant restrictions on firearm ownership and possessioti witlrin the city. 5 Similarly, the enactnlent of concealed carry statutes in Ohio, and in the majority of states of the Union as well,' demonstrates that the attempt to provide public safety by restrictive firearms ordinances, such as Cleveland has enacted, has been recognized as ineffective, and that public safety is in fact enhanced, rather than being imperiled, by permitting law-abiding citizens the means to defend themselves, their families, and property from the kind of crimes cited in the statistics noted above. Those statistics reveal that citizens, both residents of Cleveland and those visiting or travelling tlrrougli, are at a much higher risk in urban environments, despite the restrictive nninicipal firearms regulations purportedly adopted to fiirther public safety. APPLICABLE STANDAIiDS The Home Rule Amendment and R.C The centrai issue of the case before the bar is whether Revised Code Section 9.68 takes precedence over municipal ordinances regulating firearms or whether, under the provisions of the Home Rule Amendment, the statute is unconstitutional in prohibiting municipalities lrom enacting ordinances regulating firearms hich exceed the limitations provided in the statute. The Home Rule Amendment, Ohio Constitution. Art. XVIII, Section 3, states: Municipalities shall have autliority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. R.C provides: (A) The individual right to keep and bear arnrs, being a fundamental individual right tlrat predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further 1 As of 2007, forty-six states allowed the carrying of concealed weapons in some form, Baldwins Oh. Prac Crim L (2007). 6 license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition. (B) In addition to any other relief provided, the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section. (C) As used in this section: (1) The possession, transporting, or canying of firearms, their components, or their ainmunition include, but are not limited to, the possession, transporting, or carrying, openly or concealed on a person's person or concealed ready at hand, of firearms, their components, or their ammunition. (2) Firearm has the same ineaning as in section of the Revised Code. (D) This section does not apply to either of the follownig: (1) A zoning ordinance that regulates or prohibits the cotnmercial sale of fireai-ms, fn-eann components, or ammunition for tirearms in areas zoned for residential or agricultural uses; (2) A zoning ordinance that specifies the hours of operation or the geographic areas where the eomrnercial sale of firearms, tu-earm components, or annnunition for ftreaims may occur, provided that the zoning ordinance is consistent with zoning ordinances for other retail establishments in the same geographic area and does not result in a de facto prohibition of the commercial sale of firearnis, firearni components, or ammunition for firearms in areas zoned for commercial, retail, or industrial u
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