City of University Heights v. O'Leary

• Decision Date: 16 December 1981
• Docket Number: No. 80-1716,80-1716
• Citation: 429 N.E.2d 148,22 O.O.3d 372,68 Ohio St.2d 130
• Parties: , 22 O.O.3d 372 CITY OF UNIVERSITY HEIGHTS, Appellant, v. O'LEARY, Appellee.
• Court: Ohio Supreme Court

Page 130

68 Ohio St.2d 130

429 N.E.2d 148, 22 O.O.3d 372

CITY OF UNIVERSITY HEIGHTS, Appellant, v. O'LEARY, Appellee.

No. 80-1716.

Supreme Court of Ohio.

Dec. 16, 1981.

Syllabus by the Court

It is a reasonable exercise of the police power for a municipality to enact an ordinance which requires a non-resident, before bringing a firearm into the municipality, to possess a firearm owner's identification card, issued either by the non-resident's home municipality or the enacting municipality.

Defendant-appellee, James W. O'Leary, is a private investigator. On the evening of June 14, 1979, appellee's assignment was to keep a subject's car under surveillance. At approximately 10:00 p. m. that evening appellee's car was parked in a May Company parking lot in the city of University Heights. Also in the parking lot was a van, upon which several police officers converged to arrest the occupants for the illegal sale of fireworks. After the arrest, officers of the University Heights Police Department came over to appellee's car in which appellee's co-worker, Gerald Wright, was sitting to investigate his presence in the parking lot after store hours.

During the course of the police questioning of Wright, an empty gun holster was observed on the floor of the automobile. Wright was searched and a search was begun of the car. Some cartridges were found in the car's glove compartment.

Appellee returned while the police were searching the interior of the car. Pursuant to police request, appellee opened the trunk of the car which contained several encased, unloaded weapons. As a result of the discovery of these weapons, appellee was charged with violating Sections 626.04(a) and 626.09(a) of the Codified Ordinances of the city of University Heights, which proscribe the possession and carrying of a firearm in a vehicle in the city of University Heights unless the Prior to trial appellee filed the following: (1) a motion to suppress the evidence seized during the search of the car and (2) a motion to dismiss the charges on the ground that Sections 626.04(a) and 626.09(a) were facially unconstitutional.

person has a "Restricted Weapons Owner's Identification Card."

An initial hearing on the charges was held on August 17, 1979, in the Shaker Heights Municipal Court. The case was continued because neither the appellee, the prosecutor, nor the court could obtain the correct copies of the applicable ordinance.

A subsequent hearing was held on August 21, 1979. The court overruled appellee's first motion, finding the search and seizure constitutional. ¹ The court, however, granted appellee's second motion, finding Sections 626.04(a) and 626.09(a) unconstitutional because they were overbroad, vague and unenforceable.

The Court of Appeals affirmed, finding Sections 626.04(a) and 626.09(a) overbroad, vague, unenforceable and violative of due process because they penalized innocent conduct.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Alan M. Wolk, Cleveland, law director, for appellant.

Richard D. Eisenberg, Cleveland, for appellee.

KRUPANSKY, Justice.

The sole issue presented in the instant cause is whether Sections 626.04(a) and 626.09(a) of the Codified Ordinances of University Heights are constitutional. For the reasons expressed below, we hold these sections constitutional and we reverse the Court of Appeals' holding to the contrary.

Chapter 626 of the Codified Ordinances of the city of University Heights contains a comprehensive firearm registration law. ² The two sections challenged in this cause provide:

"626.04 IDENTIFICATION CARD REQUIRED

"(a) No person shall purchase, own, possess, receive, have

on or about his person or [429 N.E.2d 150] use any handgun, pellet gun or stun gun, unless such person has a Restricted Weapons Owner's Identification Card issued to him and applicable to such weapon by reason of a proof of registration form issued pursuant to Section 626.07 of these Codified Ordinances then in effect pursuant to this Chapter, or unless such person is exempt from the requirements of having such identification card pursuant to Section 626.05."

"626.09 PROHIBITION AGAINST CARRYING A FIREARM IN A VEHICLE

"(a) No person, unless exempted by any of the provisions of this chapter, shall transport in any vehicle in or upon the streets and public places of the City any restricted weapon without having in his possession a Restricted Weapons Owner's Identification Card required by the provisions of this chapter, or, if a nonresident, a Restricted Weapons Owner's Identification Card, permit or authorization issued by the proper authorities of his residence, and provided that such restricted weapon shall at all times be unloaded and encased."

In finding these sections unconstitutional, the Court of Appeals relied primarily on Lambert v. California (1957), 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, rehearing denied (1958), 355 U.S. 937, 78 S.Ct. 410, 2 L.Ed.2d 419, and United States v. Mancuso (C.A. 2, 1970), 420 F.2d 556.

In Lambert, the Supreme Court held unconstitutional a Los Angeles municipal ordinance which made it an offense for a person who had been convicted of a crime punishable in California as a felony to be present in the city for more than five days or on more than five occasions within a 30-day period without registering with the Chief of Police. In a 5-4 majority opinion written by Justice Douglas, the court reasoned:

"Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled. * * * Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted In Mancuso, a federal court of appeals, relying on Lambert, reversed the conviction of a defendant for failure to register with customs officials upon leaving and re-entering the country, which registration was required by Section 1407, Title 18, U.S.Code, because he had been convicted of a narcotics offense. See contra, United States v. Logan (C.A. 9, 1970), 434 F.2d 131.

consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community." Id. 355 U.S. at 229-30, 78 S.Ct. at 243-44.

The Court of Appeals' reliance on these cases is misplaced. The rule of law enunciated in Lambert has not been followed by courts dealing with the constitutionality of laws penalizing, under certain circumstances, the knowing possession of firearms.

In United States v. Freed (1971), 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356, a decision also authored by Justice Douglas, the court distinguished Lambert and held that one may be convicted of possession of an unregistered firearm, in this case a hand grenade, absent the knowledge that such possession was unlawful. The court reasoned that "one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Id. at 609, 91 S.Ct. at 1118.

In McIntosh v. Washington (C.A.D.C.1978), 395 A.2d 744, the federal appellate court upheld the constitutionality of a District of Columbia law which imposes criminal penalties on those who fail to register firearms regardless of their knowledge of the duty to register. In so holding, the court stated:

"Appellant's reliance on Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), and United States v. Mancuso, 420 F.2d 556 (2d Cir. 1970), is misplaced. These two cases carve out very narrow exceptions to the general rule that ignorance of the law is no defense. Except under the unique circumstances of Lambert and Mancuso, decisions in which persons were required to register because of their status, knowledge of the law is not a requirement of due process. The Supreme Court has indicated that dangerous or deleterious devices or products are the proper subject "(T)here are fields in which the dangers are so high and the regulations so prevalent that, on balance, the legislative branch may as a matter of sound public policy and without impairing any constitutional guarantees, declare the act itself unlawful without any further requirement of mens rea or its equivalent. (State v. Hatch, 64 N.J. 179, 184, 313 A.2d 797, 799 (1973).)

of regulatory measures adopted in the exercise of a state's 'police power'-e.g., United States v. International Minerals & Chemicals Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971) (corrosive liquids); United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (grenades); United States v. Balint, supra (258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922)) (narcotics); and United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (adulterated and misbranded drugs). These cases are premised on the theory that where dangerous or deleterious devices or products are involved, the probability of regulation is so great that anyone who is aware that he is either in possession of or dealing with such items must be presumed to be aware of the regulation. Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 64-65, 30 S.Ct. 663, 54 L.Ed. 930 (1910). That is to say,

"See United States v. Freed, supra; Shevlin-Carpenter Co. v. Minnesota, supra. Gun control is clearly such a field." Id. at 756.

The Lambert decision rested on three factors: (1) The conduct involved was passive, (2) the situation addressed by the ordinance would not move one to inquire as to the applicable law, and (3) the law is designed solely for its convenience in compiling a list which might be of some...