Cincinnati v. Baskin

• Decision Date: 08 December 2006
• Docket Number: No. 2004-1829.,2004-1829.
• Parties: CITY OF CINCINNATI, Appellant, v. BASKIN, Appellee.
• Court: Ohio Supreme Court

Page 514

859 N.E.2d 514

112 Ohio St.3d 279

2006-Ohio-6422

CITY OF CINCINNATI, Appellant, v. BASKIN, Appellee.

No. 2004-1829.

Supreme Court of Ohio.

Submitted October 26, 2005.

Decided December 8, 2006.

Julia L. McNeil, City of Cincinnati Solicitor, Ernest F. McAdams, City of Cincinnati Prosecutor, and Charles A. Rubenstein, Chief Deputy Prosecutor, for appellant.

Robert H. Lyons, for appellee.

ALICE ROBIE RESNICK, J.

{¶ 1} On May 31, 2003, defendant-appellee, Colt Lee Baskin, was charged with violating Cincinnati Municipal Code 708-37, which prohibits the possession of semiautomatic firearms, including any semiautomatic rifle with a capacity of more than ten rounds.¹ The complaint alleged that Baskin was observed to be in possession of "a semi automatic firearm assault rifle SKS capabele [sic] of a capacity of more than ten rounds. Magazine affixed not detachable."

{¶ 2} Baskin moved to dismiss the charge, claiming that the ordinance is in conflict with the state statutes governing the possession of firearms. The trial court granted the motion on October 23, 2003, finding that Cincinnati Municipal Code 708-37 "mak[es] something illegal, which * * * under State law would be permitted."

{¶ 3} In a split decision, the court of appeals affirmed the judgment of the trial court. In so doing, the court of appeals identified R.C. 2923.11(E) as "[t]he Ohio statute upon which the disagreement turns in this case." Cincinnati v. Baskin, 158 Ohio App.3d 539, 2004-Ohio-5055, 817 N.E.2d 433, at ¶ 5. R.C. 2923.11(E) defines "automatic firearm," the possession of which is prohibited under R.C. 2923.17(A), to include "any semi-automatic firearm designed or specifically adapted to fire more than thirty-one cartridges without reloading."² The court of appeals determined that "R.C. 2923.11 is a general law" because it "addresses conduct of the citizenry, rather than actions of a municipal legislative body." Id. at ¶ 10. Agreeing with Baskin that "Ohio allows its citizens to have a [semiautomatic] firearm that can fire up to 31 rounds," id. at ¶ 6, the court of appeals concluded that "the municipal ordinance and the state statute differ with regard to the lawful number of rounds permitted by one possessing a semiautomatic firearm: the ordinance prohibits what the state permits. Therefore, * * * the municipal ordinance must give way to the state statute." Id. at ¶ 13.

{¶ 4} The dissenting judge stated, "I cannot agree that a definition is a general law. The majority holds that R.C. 2923.11(E) is a general law because it addresses the conduct of the citizenry. But when did defining a term become `the conduct of the citizenry'? Definitions have nothing to do with conduct." Id. at ¶ 14. The dissenting judge opined, "[E]ven if a definition were a general law, the [municipal and state] provisions do not conflict." Id. at ¶ 20. In the dissent's view, prohibiting the possession of a semiautomatic firearm that holds more than 31 cartridges is not tantamount to allowing the possession of a semiautomatic firearm that holds up to 31 cartridges. Id. at ¶ 19. Thus, according to the dissent, the ordinance does not prohibit what the statute permits. Id. at ¶ 23.

{¶ 5} The cause is now before this court upon the acceptance of a discretionary appeal.

{¶ 6} The issue for our consideration is whether Cincinnati Municipal Code 708-37's prohibition against the possession of a semiautomatic rifle with a magazine capacity of more than ten rounds is unenforceable as being in conflict with a general law of the state.

{¶ 7} Section 3, Article XVIII of the Ohio Constitution, which is known as the home-rule provision, provides:

{¶ 8} "Municipalities shall have authority 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."

{¶ 9} In Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at ¶ 9, the court summarized the test for determining whether a municipal ordinance is displaced by a state measure:

{¶ 10} "A state statute takes precedence over a local ordinance when (1) the ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police power, rather than of local self-government, and (3) the statute is a general law."

{¶ 11} There is no dispute in this case that Cincinnati Municipal Code 708-37 is an exercise of the police power, rather than of local self-government, and is therefore susceptible to displacement by conflicting general laws. In addressing the other two prongs of the test, however, both the parties and the court of appeals have complicated matters by making R.C. 2923.11(E) the focal point of their inquiry. As a result, they have embroiled themselves in a pointless theoretical debate as to whether a statutory definition constitutes a general law for purposes of home-rule analysis.

{¶ 12} In determining whether the general-law requirement is met in this case, the court of appeals should have focused on R.C. 2923.17(A), which provides that "[n]o person shall knowingly acquire, have, carry, or use any dangerous ordnance." It is R.C. 2923.17(A), not R.C. 2923.11(E), that must qualify as a general law in this case. One who has a semiautomatic firearm with the qualities described in R.C. 2923.11(E) is guilty of unlawful possession of dangerous ordnance in violation of R.C. 2923.17(A). See R.C. 2923.17(D). For present purposes, R.C. 2923.17(A) essentially provides, "No person shall knowingly acquire, have, carry, or use any [semi-automatic firearm designed or specially adapted to fire more than thirty-one cartridges without reloading]." Recognition of this fact would have obviated the amorphous controversy over the status of a definition.

{¶ 13} There is no question that R.C. 2923.17(A) is a general law. In Canton, supra, the court established a test to determine whether a provision of a state statute is a general law. "To constitute a general law for purposes of home-rule analysis, a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally." Id., 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at the syllabus.

{¶ 14} Appellant, city of Cincinnati, concedes that "[l]aws regulating possession of firearms meet the first three requirements." And since we have already determined that only R.C. 2923.17(A) must qualify as a general law, we reject appellant's contention that R.C. 2923.11(E) fails to satisfy the fourth requirement "because this statute merely establishes a definitional standard for semiautomatic firearms." Clearly, R.C. 2923.17(A) prescribes a rule of conduct upon citizens generally, i.e., that no person shall knowingly possess any dangerous ordnance, including any semiautomatic firearm that is designed or modified to accommodate more than 31 cartridges.

{¶ 15} Appellant further argues, however, that even if R.C. 2923.11(E) and 2923.17(A) are construed together, the statute still fails as "a regulation on the conduct of ordinary citizenry." According to appellant, if the General Assembly intended to prevent municipalities from "regulating semiautomatic firearms capable of firing fewer than 31 cartridges, [it] would have overtly incorporated such preemption into the code's language, as it did in enacting the concealed carry legislation." Instead, by virtue of its "silence on preempting the field of this restriction," the General Assembly "implicitly recognizes that some firearms are more dangerous in certain environments" and that municipalities will continue "to enact legislation [in this area] designed to meet the specific needs of their residents." Appellant concludes, therefore, that the statute "is not a general law that preempts the City of Cincinnati from enacting legislation regulating semiautomatic firearms capable of firing fewer than 31 cartridges."

{¶ 16} This argument basically summarizes appellant's position on the issue of conflict, but has no real bearing on whether R.C. 2923.17(A) is a general law. Essentially, appellant cites the absence of a preemption clause to support a construction of the statute that is compatible with the ordinance. The construction urged by appellant is that the statute merely prohibits the possession of semiautomatic firearms with capacities exceeding 31 cartridges; it does not permit or declare a right to the possession of semiautomatic firearms that hold up to 31 cartridges. Under this construction, there is no conflict between the local and state provisions because the statute commits the regulation of lower-capacity firearms to municipal control.

{¶ 17} In its attempt to apply a general-law analysis, however, appellant erroneously assumes that a statute must declare something to be a right in order to meet the rule-of-conduct requirement. But forbidding an act is just as much prescribing a rule of conduct as is permitting an act. Thus, even if appellant is correct that the statute has no preclusive effect on a municipality's ability to regulate semiautomatic firearms capable of firing 31 or fewer cartridges, R.C. 2923.17(A) is still a general law for purposes of Section 3, Article XVIII of the Ohio Constitution.

{¶ 18} This brings us to the crucial issue, which is whether Cincinnati Municipal Code 708-37, to the extent that it prohibits the possession of any semiautomatic rifle with a magazine capacity of more than ten rounds, is in conflict with R.C. 2923.17(A).

{¶ 19} It has long been established that "[i]n determining whether an ordinance is in `conflict' with general laws, the test is whether the ordinance permits or...