Ohioans for Concealed Carry, Inc. v. Clyde

• Decision Date: 18 September 2008
• Docket Number: No. 2007-0960.,2007-0960.
• Citation: 896 N.E.2d 967,120 Ohio St.3d 96,2008 Ohio 4605
• Court: Ohio Supreme Court
• Parties: OHIOANS FOR CONCEALED CARRY, INC. et al., Appellees, v. CITY OF CLYDE et al., Appellants.

896 N.E.2d 967

120 Ohio St.3d 96

2008-Ohio-4605

OHIOANS FOR CONCEALED CARRY, INC. et al., Appellees, v. CITY OF CLYDE et al., Appellants.

No. 2007-0960.

Supreme Court of Ohio.

Submitted April 9, 2008.

Decided September 18, 2008.

Lydy & Moan, Daniel T. Ellis, and Frederick E. Kalmbach, Sylvania; and Firestone, Brehm, Hanson, Wolf & Young, L.L.P., and L. Kenneth Hanson III, for appellee Ohioans for Concealed Carry, Inc.

Schottenstein, Zox & Dunn Co., L.P.A., John C. McDonald, Stephen J. Smith, and Matthew T. Green, Columbus; and Barry W. Bova, Bellevue, for appellant.

Nancy Hardin Rogers, Attorney General, William P. Marshall, Solicitor General, Stephen P. Carney, Deputy Solicitor, and Todd A. Nist, Assistant Solicitor, for intervening appellee Ohio Attorney General Nancy Hardin Rogers.

John F. Kostyo, Findlay and Stephen P. Halbrook, urging affirmance for amicus curiae National Rifle Association of America, Inc.

Robert Triozzi, Director of Law, and Gary S. Singletary, Assistant Director of Law, urging reversal for amicus curiae the city of Cleveland.

Byron & Byron Co., L.P.A., and Stephen L. Byron, Cleveland; and John Gotherman, Columbus, urging reversal for amici curiae Ohio Municipal League and the municipalities of Beachwood, Cincinnati, Dublin, Kettering, New Albany, Orange, Shaker Heights, and Toledo.

O'DONNELL, J.

{¶ 1} The issue presented in this case concerns whether Clyde Ordinance 2004-41, which prohibits licensed handgun owners from carrying concealed handguns in Clyde city parks, is a valid exercise of the municipality's home-rule power according to Section 3, Article XVIII, of the Ohio Constitution. Because the ordinance is an exercise of the municipality's police power that conflicts with a general law, the ordinance is unconstitutional. Accordingly, we affirm the judgment of the court of appeals.

H.B. 12

{¶ 2} In January 2004, the General Assembly enacted Am.Sub.H.B. No. 12. Effective in April 2004, the bill created a licensing procedure for handgun owners in Ohio. See R.C. 2923.125. This case does not implicate the licensing procedure itself, but instead involves a municipality's ability to regulate handgun possession on its own property by persons possessing a valid permit to carry a concealed handgun.

{¶ 3} Specifically, this matter requires review of R.C. 2923.126(A), which provides that a licensed handgun owner "may carry a concealed handgun anywhere in this state," except as provided in R.C. 2923.126(B) and (C).

{¶ 4} R.C. 2923.126(B) contains a list of exceptions to this right and sets forth specific locations where a licensed handgun owner may not carry a concealed handgun:

{¶ 5} "(B) A valid license issued under section 2923.125 or 2923.1213 of the Revised Code does not authorize the licensee to carry a concealed handgun in any manner prohibited under division (B) of section 2923.12 of the Revised Code or in any manner prohibited under section 2923.16 of the Revised Code. A valid license does not authorize the licensee to carry a concealed handgun into any of the following places:

{¶ 6} "(1) A police station, sheriff's office, or state highway patrol station, premises controlled by the bureau of criminal identification and investigation, a state correctional institution, jail, workhouse, or other detention facility, an airport passenger terminal, or an institution that is maintained, operated, managed, and governed pursuant to division (A) of section 5119.02 of the Revised Code or division (A)(1) of section 5123.03 of the Revised Code;

{¶ 7} "(2) A school safety zone, in violation of section 2923.122 of the Revised Code;

{¶ 8} "(3) A courthouse or another building or structure in which a courtroom is located, in violation of section 2923.123 of the Revised Code;

{¶ 9} "(4) Any room or open air arena in which liquor is being dispensed in premises for which a D permit has been issued under Chapter 4303. of the Revised Code, in violation of section 2923.121 of the Revised Code;

{¶ 10} "(5) Any premises owned or leased by any public or private college, university, or other institution of higher education, unless the handgun is in a locked motor vehicle or the licensee is in the immediate process of placing the handgun in a locked motor vehicle;

{¶ 11} "(6) Any church, synagogue, mosque, or other place of worship, unless the church, synagogue, mosque, or other place of worship posts or permits otherwise;

{¶ 12} "(7) A child day-care center, a type A family day-care home, a type B family day-care home, or a type C family day-care home, except that this division does not prohibit a licensee who resides in a type A family day-care home, a type B family day-care home, or a type C family day-care home from carrying a concealed handgun at any time in any part of the home that is not dedicated or used for day-care purposes, or from carrying a concealed handgun in a part of the home that is dedicated or used for day-care purposes at any time during which no children, other than children of that licensee, are in the home;

{¶ 13} "(8) An aircraft that is in, or intended for operation in, foreign air transportation, interstate air transportation, intrastate air transportation, or the transportation of mail by aircraft;

{¶ 14} "(9) Any building that is owned by this state or any political subdivision of this state, and all portions of any building that is not owned by any governmental entity listed in this division but that is leased by such a governmental entity listed in this division;

{¶ 15} "(10) A place in which federal law prohibits the carrying of handguns."

{¶ 16} Furthermore, R.C. 2923.126(C)(1) and (C)(3) allow private employers and landowners to prohibit gun possession on their property as they deem fit. Thus, the law provides a right for license holders to carry concealed handguns anywhere in the state subject to several express exceptions that apply universally throughout the state, and further subject to the directives of private employers and property owners, who are authorized to prohibit handguns.

{¶ 17} The General Assembly went even further, however, providing in an uncodified portion of H.B. 12 that "[n]o municipal corporation may adopt or continue in existence any ordinance * * * that attempts to restrict the places where a person possessing a valid license to carry a concealed handgun may carry a handgun concealed." H.B. 12, Section 9, 150 Ohio Laws, Part II, 3390.

{¶ 18} Shortly after H.B. 12 took effect, the city of Clyde passed Ordinance 2004-41. That ordinance provides: "No person located within the confines of any City Park shall knowingly carry or have, on or about his person or readily to hand, any deadly weapon, irrespective of whether such person has been issued a license to carry a concealed handgun pursuant to Ohio R.C. 2923.125 or pursuant to a comparable provision of the law of any other state." Clyde Codified Ordinance 923.10(a). The ordinance further provides that a violation of the prohibition is a misdemeanor offense of the first degree.

{¶ 19} Ohioans for Concealed Carry, Inc. filed an action in August 2004 seeking an order striking down the ordinance and, further, seeking injunctive relief prohibiting Clyde from curtailing gun owners' rights. Both Ohioans for Concealed Carry, Inc. and Clyde moved for summary judgment. The trial court granted judgment in favor of Clyde, relying on the Sixth District Court of Appeals' decision in Toledo v. Beatty, 169 Ohio App.3d 502, 2006-Ohio-4638, 863 N.E.2d 1051. In Beatty, the Sixth District confronted a Toledo ordinance strikingly similar to the Clyde ordinance and held that R.C. 2923.126 was not a general law for home-rule purposes and therefore that the ordinance did not run afoul of Section 3 of the Home Rule Amendment, Article XVIII of the Ohio Constitution. The trial court, in applying the analysis in Beatty to the Clyde ordinance, reached the same conclusion and entered judgment accordingly.

{¶ 20} Ohioans for Concealed Carry appealed that determination to the Sandusky County Court of Appeals. While the case was on appellate review, the General Assembly enacted 2006 Sub.H.B. No. 347, creating R.C. 9.68, which emphasized the "fundamental individual right" to "keep and bear arms" and expressed the legislature's further desire "to provide uniform laws throughout the state regulating the ownership [and] possession * * * of firearms." R.C. 9.68(A). But the bill did more than merely restate the need for uniformity; R.C. 9.68(A) also provides that "[e]xcept as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, * * * may own, possess, purchase, * * * or keep any firearm * * *." Simply put, the General Assembly, by enacting R.C. 9.68(A), gave persons in Ohio the right to carry a handgun unless federal or state law prohibits them from doing so. A municipal ordinance cannot infringe on that broad statutory right.

{¶ 21} The court of appeals used R.C. 9.68 to distinguish Beatty, which had been decided prior to the legislature's enactment of H.B. 347. R.C. 9.68(A), the court reasoned, "indicates the Ohio Legislature's clear intent that the concealed carry laws have general and uniform operation throughout Ohio." Ohioans for Concealed Carry Inc. v. Clyde, Sandusky App. Nos. S-06-039 and S-06-040, 2007-Ohio-1733, 2007 WL 1098347, ¶ 12. Because R.C. 9.68(A) precluded any law other than state or federal law from infringing on the right to carry arms, the law preempted Clyde Ordinance 2004-41. In accordance with its analysis, the appellate court reversed the judgment of the trial court and remanded the matter for entry of summary judgment in favor of Ohioans for Concealed Carry. Id. at ¶ 12-13.

{¶ 22} Clyde appealed that determination to this court, and we accepted the discretionary appeal. 115 Ohio St.3d 1408, 2007-Ohio-4884, 873 N.E.2d 1314.

Article XVIII—The Home Rule Amendment

{¶ 23} The Home Rule Amendment to...