State v. Thacker
| Docket Number | C-240299 |
| Decision Date | 13 December 2024 |
| Citation | 2024 Ohio 5835 |
| Parties | STATE OF OHIO, Plaintiff-Appellant, v. TONY THACKER, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-2305996-A
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Norbert Wessels, Assistant Prosecuting Attorney, for Plaintiff-Appellant
Schuh & Goldberg LLP and Brian T. Goldberg, for Defendant-Appellee.
{¶1} Fourteen years ago, a teenage Tony Thacker was adjudicated delinquent for engaging in conduct that, had he been an adult, would have constituted a nonviolent drug felony. From that day forward, Ohio law imposed a legal "disability" upon Thacker, making it a third-degree felony for him to possess a firearm. Then, in 2023, a nearly 30-year-old Thacker was charged with possessing a weapon while under the disability created by his delinquency adjudication. Thacker contended that the Second Amendment to the United States Constitution protects his right to keep and bear arms, despite his juvenile delinquency adjudication. In other words, he argued that Ohio's weapons-under-a-disability statute was unconstitutional as applied to him.
{¶2} Under the United States Supreme Court's recent decisions in New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. ___, 144 S.Ct. 1889 (2024), Thacker is right-at least on the facts and historical evidence before us in this case. Our nation does have a history and tradition of disarming the dangerous, but nothing in that history resembles the State's attempt to deem Thacker a dangerous person for the remainder of his life, based solely upon a nonviolent juvenile delinquency determination. We therefore affirm the trial court's judgment finding R.C. 2923.13(A)(3) unconstitutional as applied to Thacker and dismissing those charges.
{¶3} On April 16, 2010, 16-year-old Tony Thacker was adjudicated delinquent for conduct which, had he been an adult, would have amounted to complicity to drug trafficking in violation of R.C. 2925.03-a fifth-degree felony for an adult. Descriptions in Thacker's brief and in the trial court's order suggest that the substance being trafficked was marijuana.
{¶4} More than 13 years later, a now 29-year-old Tony Thacker was arrested and indicted on multiple counts-two of them for having a weapon while under a disability in violation of R.C. 2923.13(A)(3). That provision states that "no person shall knowingly acquire, have, carry, or use any firearm" if that person was previously "adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse." R.C. 2923.13(A)(3). The State cited Thacker's 2010 juvenile adjudication as the sole basis for this disability and alleged that, as of the dates in the indictment, Thacker had not been relieved from such disability by operation of law or legal process. Thacker does not contest any of these facts for the purposes of appeal, and we accept the State's allegations in its indictment as true.
{¶5} Thacker moved to dismiss the weapons-under-a-disability charges, arguing that R.C. 2923.13(A)(3), as applied to him, violated the Second and Fourteenth Amendments to the United States Constitution, as well as Article I, Section 4 of the Ohio Constitution. After hearing arguments on the issue, the trial court granted Thacker's motion and dismissed the charges. In its order, the trial court adopted the reasoning articulated by Hamilton County Common Pleas Judge Jennifer Branch in the similar case of State v. Booker, Hamilton C.P. No. B-2302415 (Dec. 19, 2023), incorporating that opinion by reference.
{¶6} The State then filed this timely appeal pursuant to R.C. 2945.67.
{¶7} In its sole assignment of error, the State contends that the trial court "erred by finding R.C. 2923.13(A)(3) unconstitutional as applied and dismissing the charges" against Thacker. Where, as here, a trial court dismisses an indictment or charges in an indictment for purely legal reasons, we review its decision de novo. See State v. Troisi, 2022-Ohio-3582, ¶ 17; State v. King, 2024-Ohio-4585, ¶ 14 (8th Dist).
{¶8} As the State's assignment of error makes clear, Thacker challenged the constitutionality of R.C. 2923.13(A)(3) not on its face, but only "as applied" to him. An as-applied challenger like Thacker "alleges that the application of the statute in the particular context in which he has acted . . . would be unconstitutional." (Cleaned up.) Wymsylo v. Bartec, Inc., 2012-Ohio-2187, ¶ 22. Thus, we limit our consideration to whether the Second Amendment permitted the State to disarm Thacker on the dates listed in the indictment and under the particulars of his case. Because Thacker's challenge is limited, so, too, is the reach of our holding. A ruling in Thacker's favor will only prevent the challenged statute's "future application in a similar context," but will not "render it utterly inoperative." See id.
{¶9} The Second Amendment protects "the right of the people to keep and bear arms." U.S. Const, amend. II. In Dist. of Columbia v. Heller, 554 U.S. 570, 595 (2008), the United States Supreme Court held that this provision enshrined "an individual right" to possess and use firearms, at least those in common use, and at least for self-defense in the home. That right was incorporated against the states by the ratification of the Fourteenth Amendment. See McDonald v. City of Chicago, 561 U.S. 742, 778, 791 (2010).
{¶10} "Like most rights, though, the right secured by the Second Amendment is not unlimited." (Cleaned up.) Rahimi, 144 S.Ct. at 1897. From its inception, our nation has regulated the possession, use, and carrying of firearms. It is this "historical tradition," the Supreme Court has said, "that delimits the outer bounds of the right to keep and bear arms." Bruen, 597 U.S. at 19. Bruen thus set forth a history-and-tradition test, later refined and clarified in Rahimi, directing courts confronted with Second Amendment challenges to ask two questions:
{¶11} First, we must ask whether "the Second Amendment's plain text covers an individual's conduct." Id. at 17. If it does, then "the Constitution presumptively protects that conduct," and we proceed to the next step. Id.
{¶12} Second, the court must assess whether the State has rebutted this presumption by adducing historical evidence that its "regulation is consistent with this Nation's historical tradition of firearm regulation." Id. To identify such a "historical tradition," the State must point to a pattern of analogous regulations in effect at the time of the Country's founding.[1] Despite its backward-looking character, this test is "not meant to suggest a law trapped in amber"-the State need not produce a "'dead ringer' or 'historical twin'" to justify its modern regulatory effort. Rahimi at 1897-1898, quoting Bruen at 30. Instead, it is the State's burden to offer evidence that its "new law is 'relevantly similar' to laws that our tradition is understood to permit." Id., quoting Bruen at 29.
{¶13} In assessing whether the historical regulations the State offers are "relevantly similar" to a challenged law, a court should be guided by the "principles that underpin our regulatory tradition," which it finds by asking "[w]hy and how" a historical regulation "burden[ed] the right" to keep and bear arms. Rahimi, 144 S.Ct. at 1898, citing Bruen, 597 U.S. at 26-31. The court can then determine whether the State's challenged regulation "impos[es] similar restrictions" on the Second Amendment right as did its historical forbears, and whether those restrictions were imposed "for similar reasons." Id. In drawing these comparisons, however, we must take care "to apply faithfully the balance struck by the founding generation to modern circumstances," without engaging in the sort of "means-end scrutiny" that Bruen rejected. Bruen at 24, 29, fn. 7.
{¶14} The law that Thacker challenged and that the State seeks to uphold, as applied in this case, disarms an adult individual because he was adjudicated delinquent as a juvenile for conduct that amounted to complicity to trafficking marijuana. See R.C. 2923.13(A)(3). That disarmament is presumptively permanent and can be terminated only with judicial approval. See R.C. 2923.14. To our knowledge, no other court has resolved the constitutionality of such a disarmament post-Bruen. We nevertheless look to several recent federal and state decisions for guidance on how to apply the Bruen framework to laws like the one at issue here, and how to frame the State's historical evidence.
{¶15} Prior to 2024, the United States Supreme Court had addressed two types of laws in the modern era. In Heller and McDonald, the Court had held that laws effectively prohibiting the possession of handguns in the home violated the Second Amendment. See Heller, 554 U.S. at 635; McDonald, 561 U.S. at 750. Heller also struck down a law requiring that firearms be kept inoperable while not in use. Heller at 635. Then in Bruen, the Court held unconstitutional a New York law that prohibited the public carrying of firearms without a license-which New York would issue "only when an applicant demonstrate[d] a special need for self-defense." Bruen at 11.
{¶16} The gun laws at issue in these cases were universal in their application-they limited the rights of all (or virtually all) individuals equally. Though...
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