In re Suleiman
| Decision Date | 10 September 2021 |
| Docket Number | CV 21 943975 |
| Citation | 185 N.E.3d 235 |
| Parties | IN RE: Hazem SULEIMAN |
| Court | Ohio Court of Common Pleas |
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 CourtIn 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 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:
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.
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.
In 1999, petitioner pled guilty to aggravated assault, a felony of the fourth degree under R.C. 2903.12. He was sentenced to a term of one year in prison. Although he was only sentenced to a single year, his conviction was for a crime that was punishable at the time by imprisonment for a term exceeding one year, which now bars him from having a firearm pursuant to 18 U.S.C. 922(g)(1).
Federal courts have repeatedly held that state crimes of violence, such as aggravated 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 (D.C. Cir. 2002), 295 F.3d 1354, rehearing and rehearing en banc den. (Nov. 4, 2002); United States v. Denis (1st Cir. 2002), 297 F.3d 25, 30-31 ; United States v. Kavoukian (2nd Cir. 2002), 315 F.3d 139 ; United States v. Nason (1st Cir. 2001), 269 F.3d 10 ; United States v. Chavez (11th Cir. 2000), 204 F.3d 1305, 1313-1314 ; United States v. Meade (1st Cir. 1999), 175 F.3d 215 ; United States v. Smith (8th Cir. 1999), 171 F.3d 617 ; United States v. Blosser (Oct. 4, 2002), D.Kans. No. 02-40074-01-JAR, 2002 WL 31261170 ; see also United States v. Ball (4th Cir. 2001), 7 Fed. Appx. 210, 213, 2001 WL 324624 (unpublished per curiam order), cert. den. (2001), 534 U.S. 900, 122 S.Ct. 226, 151 L.Ed.2d 162. It is axiomatic that a "statute should ordinarily be read to effectuate its purposes rather than frustrate them." Motor Vehicle Mfrs. Assn. of U.S., Inc. v. Ruckelshaus (D.C. Cir. 1983), 719 F.2d 1159, 1165, quoted in Barnes, supra , 295 F.3d at 1364. The Brady Law reflects Congress's strong desire to keep guns out of the hands of criminals, and should be read accordingly. This court agrees with the approach of the federal courts cited above. See also City of Cleveland v. Carpenter (2003), 126 Ohio Misc.2d 77, 803 N.E.2d 871.
Of course, as a state court, this court is bound by federal law. The Supremacy Clause of the United States Constitution, Article VI, Sec. 2, provides, "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." The Constitution and laws of the United States are just as much a part of the legal system of this state as are its own constitution and laws, and are just as binding. State ex rel. Donahey v. Edmondson (1913), 89 Ohio St. 93, 105 N.E. 269 ; Bowles v. Rugg (S.D. Ohio 1944), 57 F. Supp. 116, 119 ; State v. Bob Manashian Painting (Ohio Mun. 2002), 121 Ohio Misc. 2d 99, 106, 782 N.E.2d 701. In interpreting R.C. 2923.14, this court must bear in mind R.C. 1.47, which provides, "In enacting a statute, it is presumed that ... compliance with the constitutions of the state and of the United States is intended...." City of Cleveland v. Brooks (2012), ––– Ohio ––––, 974 N.E.2d 217.
Prudential considerations
Even were petitioner legally entitled to have his right to bear arms restored, there are important reasons why doing so would be imprudent and not in the public interest. The nation is already awash in guns, and arming a person previously convicted of a violent felony would do nothing to improve the situation.
The U.S. Centers for Disease Control and Prevention have determined that gun violence is a "serious public health problem" in this country. Firearm-related injuries are among the five leading causes of death for people ages 1-64 in the United States. The vast majority of gun deaths are not those of criminals being shot by innocent civilians defending themselves, but of people shot by those whom they know, and people who commit suicide with guns. An average of 200 people are killed and 472 injured by guns...
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