Hale v. Columbus, 89AP-1365

• Citation: 63 Ohio App.3d 368,578 N.E.2d 881
• Decision Date: 28 June 1990
• Docket Number: No. 89AP-1365,89AP-1365
• Parties: HALE et al., Appellants, v. CITY OF COLUMBUS, Appellee. *
• Court: United States Court of Appeals (Ohio)

Page 368

63 Ohio App.3d 368

578 N.E.2d 881

HALE et al., Appellants, v. CITY OF COLUMBUS, Appellee. ^*

No. 89AP-1365.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided June 28, 1990.

David M. Buda, Columbus, for appellants.

Ronald J. O'Brien, City Atty., and James J. Fais, Columbus, for appellee.

Jones, Day, Reavis & Pogue, Erwin N. Griswold and James M. Loots, Washington, D.C., amici curiae, Center to Prevent Handgun Violence Legal Action Project, Fraternal Order of Police of Ohio, Inc. and Ohio Ass'n of Chiefs of Police.

Keating, Muething & Klekamp and Richard L. Creighton Jr., Cincinnati, urging affirmance, for amicus curiae, the Congress of Racial Equality, Inc.

Stefan Tahmassebi, Washington, D.C., urging reversal, for amicus curiae, for the Office of Gen. Counsel, Nat. Rifle Ass'n.

YOUNG, Judge.

This matter is before this court upon the appeal of Richard Hale et al., appellants, from a judgment rendered in favor of appellee, city of Columbus, Ohio ("city"). On May 22, 1989, the Columbus City Council enacted Ordinance No. 1226-89 ("the ordinance") which, among other things, banned the possession and sale of "assault weapons" ¹ and "large capacity magazines," ² and required the registration and licensing of assault weapons currently in possession. The ordinance amended Columbus City Code ("C.C.") Section 2323.01 and enacted C.C. Sections 2323.05 and 2323.06 affecting firearm possession.

On October 20, 1989, appellants filed an action in the Franklin County Court of Common Pleas seeking declaratory judgment and temporary and permanent injunctive relief against the enforcement of the ordinance which was to take effect on October 31, 1989. The trial court conducted a hearing on October 27, 1989, and evidence was submitted. The hearing was continued until October 30, 1989, and thereafter, the trial court denied appellants' request for a declaratory judgment, and preliminary and permanent injunctive relief, and made a determination that the ordinance was constitutional. The trial court dismissed appellants' complaint with prejudice.

Thereafter, this appeal ensued whereby the appellants asserted the following five assignments of error:

"I. The trial court erred in holding that it lacked jurisdiction to question factual determinations made by City Council in enacting an ordinance.

"II. The trial court erred in holding that the ordinance which is the subject of this action is constitutionally valid.

"III. The trial court erred in failing to grant the temporary and permanent injunctive relief requested.

"IV. The decision of the trial court is contrary to law.

"V. The decision of the trial court is against the manifest weight of the evidence."

On appeal, the Center to Prevent Handgun Violence Legal Action Project, Fraternal Order of Police of Ohio, Inc., and the Ohio Association of Chiefs of Police collaborated on an amicus curiae brief. An amicus curiae brief was also filed by the Congress of Racial Equality, Inc.

In their first assignment of error, appellants assert that the trial court erred in holding that it lacked jurisdiction to question factual determinations made by the city in enacting an ordinance. Upon review, the record before this court on appeal is devoid of any such holding by the trial court. In an excerpt of a copy of the transcript of proceedings attached to appellants' brief, which cannot be considered as evidence before this court, the following statement of the trial court appears:

"This court cannot go beyond and go behind the factual validity of the findings that Council has made for purposes of adopting the ordinance and in its preamble. And since the ordinance is presumed to be valid, than the court cannot go behind the factual findings that Council has made."

Contrary to appellants' assertion, the Supreme Court, in Walker v. Cincinnati (1871), 21 Ohio St. 14, 42, quoting Judge Cooley in his treatise on "Constitutional Limitations," stated:

" ' * * * But what is for the public good, and what are public purposes, and what does properly constitute a public burden, are questions which the legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion which cannot be controlled by the courts, except perhaps where its action is clearly evasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful. Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes, and not those implied restrictions, which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism, and sense of justice of their representatives.' And he adds on page 171: 'Nor are the courts at liberty to declare an act void because, in their opinion, it is opposed to a spirit supposed to pervade the constitution but not expressed in words;'--citing People v. Fisher 24 Wend. 220; Cochran v. Van Surlay, 20 Wend. 381; People v. Gallagher, 4 Mich. 244; Benson v. Mayor of Albany, 24 Barb. 252; Grant v. Courter, 24 Barb. 232; Wunehamer v. People, 13 N.Y. 391." (Emphasis in original.)

Assumingly, in their first assignment of error, appellants are challenging the standard of review that must be applied by the trial court in determining the validity of the ordinance. Since this analysis necessarily involves a discussion regarding the constitutionality of the ordinance, appellants' first and second assignments of error will be addressed together.

Legislative acts enjoy a strong presumption of constitutionality and any challenge must establish beyond a reasonable doubt that the enactment is unconstitutional. Ohio Public Interest Action Group v. Pub. Util. Comm. (1975), 43 Ohio St.2d 175, 72 O.O.2d 98, 331 N.E.2d 730; State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59. The person challenging the legislation must show evidence that the legislation lacks the requisite nexus to its stated purpose. Cincinnati v. Welty (1980), 64 Ohio St.2d 28, 18 O.O.3d 211, 413 N.E.2d 1177. Thus, the issue in the facts before this court is, whether the ordinance bears a real and substantial relation to a proper subject of municipal police power under Section 3, Article XVIII of the Ohio Constitution.

The stated purposes of the legislation are as follows:

"WHEREAS, Council has studied the effect of unregulated possession or sale of assault weapons, and "WHEREAS, to protect the health, safety and welfare of its citizens and law enforcement officers it is in the best interest of the City of Columbus to ban the possession and sale of assault weapons, and require the registration and licensing of currently possessed assault weapons, and

"WHEREAS, Council finds that the primary purpose of assault weapons, as defined herein, is anti-personnel, and not for legitimate sporting, hunting, collecting, or target shooting purposes, and

"WHEREAS, to keep such assault weapons out of the hands of criminals, particularly drug traffickers, and to help prevent violence it is necessary to ban and regulate such weapons.

"WHEREAS, the ability to purchase firearms without delay or a waiting or cooling off period has contributed to the purchase of firearms after an incident where the purchaser is physically, mentally, or emotionally upset due to the incident, and

"WHEREAS, to avoid the purchase of firearms when the purchaser is physically, mentally, or emotionally upset due to an incident which may create a risk of immediate unlawful use or risk of harm to other persons, it is in the best interest of the City to require a seven day waiting or cooling off period before a firearms purchase permit is issued, and

"WHEREAS, large capacity magazines may be used in an unregulated firearm which will accept such magazines, thus bringing such weapon within the ambit of the purpose of this Ordinance to regulate semi-automatic weapons that permit the firing of a large number of rounds at one time without reloading, it is in the interest of the City to regulate such magazines, now therefore."

Appellants assert that there was no evidence before city council supporting these stated purposes. However, this is not the focus in a judicial standard of review as set forth in Welty. It was incumbent upon the appellants, in challenging the presumption of constitutionality, to demonstrate that the ordinance lacked the requisite nexus to its stated purposes. See Welty, supra.

At the October 27, 1989 hearing, appellants submitted a letter, dated April 25, 1988, from the city of Columbus Chief of Police, Dwight Joseph, to councilwoman Arlene Shoemaker. The letter was in reply to Shoemaker's request for a report of the police department's statistics on its narcotics data. Shoemaker specifically asked that the report include a listing of the firearms that had been confiscated from drug raids during the time period between April 1988 and April 1989. Appellants assert that since the report indicated that only six of the one hundred and seventy-nine weapons that had been confiscated appeared on the prohibited list set forth in the ordinance, that, in their viewpoint, the stated purposes bore no real or substantial relation to the public health, safety, morals, or general welfare. Thus, appellants argue the ordinance is unreasonable and arbitrary and should be held invalid.

In Benjamin v. Columbus (1957), 167 Ohio St. 103, 110, 4 O.O.2d 113, 117, 146 N.E.2d 854, 860 the Supreme Court stated:

"Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decision of such legislative body on those questions appear to be clearly erroneous, the courts will not...