In re Suleiman, CV 21 943975

CourtCourt of Common Pleas of Ohio
Writing for the CourtWILLIAM F.B. VODREY, JUDGE
Citation185 N.E.3d 235
Parties IN RE: Hazem SULEIMAN
Docket NumberCV 21 943975
Decision Date10 September 2021

185 N.E.3d 235

IN RE: Hazem SULEIMAN

No. CV 21 943975

Court of Common Pleas of Ohio, Cuyahoga County.

September 10, 2021


185 N.E.3d 237

JOURNAL ENTRY

WILLIAM F.B. VODREY, JUDGE

The court now has before it petitioner's application for relief from weapons disability pursuant to R.C. 2923.14, filed February 12, 2021. Petitioner has had no further criminal convictions since an aggravated assault conviction in 1999. The State of Ohio, in its response filed March 11, 2021, suggested that petitioner is now eligible for relief from disability under Ohio law. The court held a hearing on the application on April 28, 2021. Atty. Shaun E. Whitehead appeared for and with petitioner, who briefly testified. The Prosecuting Attorney did not appear for the State of Ohio.

After due consideration, the court now finds that petitioner is ineligible to lawfully bear arms under the Brady Law, 18 U.S. Code 922. Even if he were eligible, there are important and compelling prudential reasons not to restore his right to bear arms.

Accordingly, and for the reasons set forth herein, petitioner's application is denied.

Opinion of the Court

In 1999, in case CR-98-362335-ZA, petitioner was convicted of aggravated assault, a felony of the fourth degree in violation of R.C. 2903.12, but has been convicted of no other offenses since then. At the hearing in this case on April 28, 2021, petitioner told the court under oath that he had no current intention of obtaining a firearm but wished to have the option to do so. He also believed that his legal disability prevented him even from carrying a small pocketknife, although he presented no statute or caselaw to support that view. Petitioner, a truck driver, testified that he did not feel at any particular risk in his work or home life such that he now needed access to firearms to defend himself. Tr. at 4-6.

The Second Amendment to the United States Constitution provides, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." For most of our country's history, and consistent with the admittedly somewhat ambiguous wording of the Second Amendment, the right to bear arms was recognized to be an individual right in the context of militia service. The Supreme Court of the United States long held that the right protected by the Second Amendment is not absolute, but is instead subject to government regulation. Robertson v. Baldwin , 165 U.S. 275, 281–282, 17 S.Ct. 326, 41 L.Ed. 715 (1897). Indeed, it was not until 2008 that the Court found, notwithstanding the first four words of the Second Amendment, that there is an individual right to bear arms, regardless of militia service. District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

The Supreme Court of Ohio, in keeping with longstanding Federal precedent, has held that the right to bear arms "is not an unlimited right and is subject to

185 N.E.3d 238

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, for instance, 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, 358 N.E.2d 540 ; Hale v. Columbus (1990), 63 Ohio App.3d 368, 376, 578 N.E.2d 881 ; East Cleveland v. Scales (1983), 10 Ohio App.3d 25, 460 N.E.2d 1126.

R.C. 2923.14(D) provides:

Upon hearing, the court may grant the applicant relief pursuant to this section, if all of the following apply:

(1) One of the following applies:

(a) If the disability is based upon an indictment, a conviction, or an adjudication, the applicant has been fully discharged from imprisonment, community control, post-release control, and parole, or, if the applicant is under indictment, has been released on bail or recognizance.

(b) If the disability is based upon a factor other than an indictment, a conviction, or an adjudication, that factor no longer is applicable to the applicant.

(2) The applicant has led a law-abiding life since discharge or release, and appears likely to continue to do so.

(3) The applicant is not otherwise prohibited by law from acquiring, having, or using firearms.

R.C. 2923.14 permits, but does not require, a trial court to grant an application for relief from disability where an offender has presented evidence that the statutory requirements were complied with. State v. Brown , 8th Dist. Cuyahoga No. 96615, 2011-Ohio-5676, 2011 WL 5299304, ¶ 21. The General Assembly specifically provided that a court may, not that a court must , grant a petitioner relief in such cases. The court, therefore, has discretion, but its decision must be supported by the record. State v. Dozanti , 8th Dist. Cuyahoga No. 102158, 2015-Ohio-2276, 2015 WL 3647466, ¶ 9. "Wide discretion is not unlimited discretion," of course. Richmond Heights v. LoConti (1969), 19 Ohio App.2d 100, 113, 250 N.E.2d 84.

A conviction for a violent offense does not preclude granting an application for relief; however, it is a relevant circumstance to be weighed in exercising discretion. In re Chrosniak's , 8th Dist. Cuyahoga No. 105459, 2017-Ohio-7408, 96 N.E.3d 1083, ¶ 24. But the court's inquiry does not end there.

The Brady Law

Notwithstanding R.C. 2923.14, which allows for an Ohio court's restoration of gun rights for individuals who meet certain conditions, petitioner's 1999 aggravated assault conviction prohibits him from having a firearm under the Brady Law, a federal statute.

Pursuant to the Brady Law, 18 U.S.C. 922(g)(1), it is unlawful for any person

who has been convicted of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or
...

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