Cleveland v. Carpenter, 2001 CRB 056654.

• Decision Date: 20 February 2003
• Docket Number: No. 2001 CRB 056654.,2001 CRB 056654.
• Citation: 803 NE 2d 871,126 Ohio Misc.2d 77
• Parties: CITY OF CLEVELAND v. CARPENTER.
• Court: Ohio Court of Common Pleas

126 Ohio Misc.2d 77

2003-Ohio-7349

803 NE 2d 871

2003-Ohio-7349

CITY OF CLEVELAND v. CARPENTER.^*

No. 2001 CRB 056654.

Cleveland Municipal Court, Ohio.

Decided February 20, 2003.

Joan Bascone, Assistant City Prosecutor, for plaintiff.

Margaret Kanellis, for defendant.

MABEL M. JASPER, Judge.

{¶ 1} The court has before it defendant Robert Carpenter's motion for release of property filed December 26, 2002, and the city's objection to that motion, filed January 23, 2003. The case was set for hearing on January 29, 2003, before Magistrate William F.B. Vodrey. Present were counsel for the city and for defendant. Defendant was also present but did not testify.

{¶ 2} For the reasons stated below, defendant's motion is denied.

{¶ 3} It is undisputed that officers of the Cleveland Police Department ("CPD") seized eight firearms from defendant's home on or about December 26, 2001, after responding to a domestic complaint. Although defendant asserted in his motion that police seized nine weapons, the parties agreed at the January 29, 2003 hearing that there are only eight weapons at issue. On March 26, 2002, defendant pled no contest to misdemeanor assault under Cleveland Codified Ordinances ("C.C.O.") 621.03, and was found guilty. He now asks the city to return his weapons to him. The parties agreed that this court may properly consider defendant's motion on its merits and that it need not necessarily be brought under the replevin statute, R.C. 2737.01 et seq.

{¶ 4} The Fourth Amendment to the United States Constitution provides:

{¶ 5} "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

{¶ 6} The Fourteenth Amendment to the United States Constitution provides:

{¶ 7} "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

{¶ 8} The Fourth Amendment applies to the states through the Fourteenth Amendment. State v. Orr (2001), 91 Ohio St.3d 389, 745 N.E.2d 1036; State v. Delagraza (2001), 144 Ohio App.3d 474, 478, 760 N.E.2d 860.

{¶ 9} Although CPD acted reasonably in seizing the eight weapons at the time of defendant's arrest, the guns are no longer needed as evidence now that defendant has entered a plea, and the city has not filed for forfeiture. Defendant was neither charged with, nor convicted of, a weapons offense. He is not presently under any state statutory disability. R.C. 2923.13.

{¶ 10} This, however, does not end the court's inquiry. The city argues that CPD seized the weapons under C.C.O. 627.11(a), which provides that "in any situation where a deadly weapon is present and a person has been * * * disturbing the peace, threatening bodily harm or causing or threatening a disturbance of violence, and there is reasonable cause for the investigating police officer to believe that such deadly weapon may be used to cause bodily harm, such deadly weapon may be seized by the police and kept in the custody of the Chief of Police until released by an order of a court of competent jurisdiction."

{¶ 11} The court is satisfied that the officers in this case acted within the letter and spirit of C.C.O. 627.11(a), and the parties agree that this court is a "court of competent jurisdiction" to decide this matter.

{¶ 12} The city also points to C.C.O. 627.11(b), which provides that "any deadly weapon seized by a police officer upon the arrest of any person * * * charged with * * * any felony or misdemeanor involving the use of a deadly weapon or the use of force or violence or the threat of the use of force or violence against the person of another, shall be confiscated.* * * for disposal."

{¶ 13} The victim, defendant's ex-wife Cynthia Carpenter, told CPD officers that, when she went to pick up the couple's baby, defendant punched her in the face "so hard that it knocked her to the ground." He then threatened to kill her, and she called police. Upon their arrival, the officers observed that Ms. Carpenter was "bleeding from her mouth and was shaken and scared." She told them that defendant has, in the past, "put a gun up to the son of the victim's head and threatened to shoot and kill him." Ms. Carpenter also said that defendant "is always threatening to kill and harm her." Defendant was initially charged with domestic violence under R.C. 2919.25, a misdemeanor of the first degree (the couple, although divorced, were still cohabiting). As noted above, defendant ultimately pled no contest to assault under C.C.O. 621.03, which is also a misdemeanor of the first degree, and was found guilty.

{¶ 14} The court believes that, under its plain language, C.C.O. 627.11(b) is applicable here. Based upon the victim's statement to police, made soon after the commission of the offense, and the CPD officers' own observations, it is clear that defendant used "force or violence or the threat of the use of force or violence" against her. He was arrested and later charged with a misdemeanor crime, and the initial retention of defendant's weapons by the city was therefore lawful. But is it lawful still, and is he now entitled to the weapons' return?

{¶ 15} The city argues that it is prohibited under C.C.O. 674.02(c) and (d) from returning the weapons to him. These ordinances require that anyone possessing a "handgun" in the city have a valid identification card and a registration card for each handgun. Not all of defendant's weapons are handguns; at least three clearly are not. See City of Cleveland's Objection to Defendant's Motion for Release of Property, Memorandum at 1, fn. 1 (referring to Item 3, a "12 caliber shot gun"; Item 5, a "7.62 caliber rifle"; and Item 7, a "24-inch REM Rifle"). The city contends that the registration of these weapons has expired. Although defendant, through counsel, denied this, he introduced no evidence to counter the city's assertion, nor did he show that he had or has the requisite registration cards. The CPD incident report that defendant attached to his motion is either silent as to the registration status of these weapons or, as to both Item 4 (a Wesson .22 caliber pistol) and Item 6 (a Llama/Super Commanche .44 caliber pistol) indicates that the weapons' registration expired on January 27, 1989. The court has no evidence before it to show that any of the weapons seized have currently valid registration. A complaint of unlawful detention of property puts in issue not only the facts of the detention but also the complainant's right of possession and property. Kelly v. Blakely (1860), 2 Ohio Dec.Rep. 378, 1860 WL 4776.

{¶ 16} The Supreme Court of Ohio has held that the right to bear arms "is not an unlimited right and is subject to reasonable regulation." Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 47, 616 N.E.2d 163. Regulating firearms is a valid exercise of a municipality's police power, since such regulations bear a real and substantial relationship to the purposes of safeguarding the public. Mosher v. Dayton (1976), 48 Ohio St.2d 243, 2 O.O.3d 412, 358 N.E.2d 540; Hale v. Columbus (1990), 63 Ohio App.3d 368, 376, 578 N.E.2d 881; E. Cleveland v. Scales (1983), 10 Ohio App.3d 25, 10 OBR 32, 460 N.E.2d 1126. The Cleveland firearms ordinance, in particular, has been found by the Supreme Court to be "a proper exercise of the police power under Section 3, Article XVIII of the Ohio Constitution." Arnold, supra. Moreover, it "is a reasonable exercise of the police power to require non-residents, as well as residents, to possess an identification card" to lawfully possess a firearm within that city. University Hts. v. O'Leary (1981), 68 Ohio St.2d 130, 135, 22 O.O.3d 372, 429 N.E.2d 148. See, also, Cincinnati v. Langan (1994), 94 Ohio App.3d 22, 29, 640 N.E.2d 200. Defendant is clearly not entitled to the return of weapons that were never lawfully registered or whose registration has expired.

{¶ 17} The city also argues that, by operation of federal law, defendant may not have the eight firearms returned to him. This court is clearly bound by federal law. Under the Supremacy Clause, United States Constitution, Clause 2, Article VI:

{¶ 18} "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

{¶ 19} The Brady Law, Section 922, Title 18, U.S.Code, prohibits a person "convicted in any court of a misdemeanor crime of domestic violence" from possessing or receiving a firearm. Section 922(g)(9). The Brady Law defines the term "misdemeanor crime of domestic violence" as an offense that (i) is a misdemeanor under federal or state law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim. Section 921(a)(33)(A).

{¶ 20} The Cleveland misdemeanor assault ordinance does not have as "an element" of the offense that the crime was "committed by a * * * former spouse * * * of the victim, or by a person with whom the victim shares a child in common, or by a person with whom the victim is cohabiting." However, in reviewing legislative intent, many federal courts have held that state misdemeanor crimes of violence, such as simple assault, need not have a domestic relationship as an element of the offense in order to disqualify a defendant from possessing firearms under the Brady Law. See United States v. Barnes (C.A.D.C. 2002),...