The following information was originally drafted by Ohioans For Concealed Carry shortly after the August 2000 rally on Cincinnati's Fountain Square supporting the original lawsuit. Since then, this issue has become a landmark success, and will clearly be a significant milestone in Ohio's history. So much has changed that we have asked Dave LaCourse of The Second Amendment Foundation to update this page. Dave and The SAF have been instrumental in the coordination, strategy, and success of this endeavor.

THE LAWSUIT:

Three men and a woman filed a lawsuit in Hamilton County, Ohio in 2000 seeking a court order preventing law enforcement agencies from enforcing Ohio Revised Code sections 2923.12 banning concealed carry of firearms with felony penalties for any violations and R.C. 2923.16 banning loaded guns in a motor vehicle. After many hurdles, it was combined with a nearly identical case filed only after the first lawsuit was stalled in the courts. To date, all four judges hearing these cases have concluded that these laws violate Ohio's Constitution. These combined cases are now referred to as the Hamilton County Lawsuit or the Cincinnati Lawsuit and they are currently awaiting a decision by the Ohio Supreme Court on whether the cases will be heard there. There is a stay issued against our victories, and the carry bans remain active for right now.

A LITTLE HISTORY:

Back in 1999 a man by the name of Patrick Feely was pulled over and asked if he had any weapons. Court testimony shows the officer asked because, from the passenger side, he could see a familiar outline of a knife in the driver's pocket. He wanted to see if he'd admit it.

Being an honest man, Mr. Feely said he had a firearm. The ironic part of this story is he thought he had the right to have it under the "affirmative defense" language of the statute. As you may expect he was promptly removed from his vehicle and arrested. It's important to understand Mr. Feely was pulled over because the vehicle he was driving for his employer had expired tags.

Pat was arrested and charged with carrying a concealed weapon and/or the transportation clause of the same chapter mentioned above. Like many other cases, the prosecutor probably tried to plead this case into a conviction for a first degree misdemeanor. Pat wouldn't have anything to do with it, and pled not guilty to the felony charges. Pat, like many Ohioans, felt the Ohio Constitution gave him the right to carry a firearm for self-defense. The fact that Pat worked in a cash business in a bad part of Cincinnati had a lot to do with his decision to carry a firearm. In fact, Pat had been present during a few robberies as well. He had a legitimate reason to be armed.

Pat's defense claimed he was not guilty because of the Ohio Constitution as well as the numerous affirmative defenses which applied in his case. Numerous other issues were brought forward on his behalf and Feely was found NOT guilty of all charges. Not only did the judge rule in Feely's favor, he also made very clear statements that the law was obviously unfair to lawful citizens with a legitimate desire to carry firearms for their defense. Even the County Prosecutor admitted to flaws in the system.

Following this decision, a group of activists on the local and national level began preparing for a new lawsuit so there would be no more cases like Pat Feely's!

WHERE WE ARE NOW:

This brings us back to the Hamilton County lawsuit. Chuck Klein, James Cohen, Vernon Ferrier, and Leanne Driscoll, filed a lawsuit with the Second Amendment Foundation (SAF) joining them as a plaintiff and primary financial backer in the county court of common pleas seeking an injunction against law enforcement agencies in the County. SAF was also in talks with OFCC for an additional lawsuit at this time, and since then, OFCC has become a major financial contributor to the Hamilton County suits.

A temporary restraining order (TRO) was issued and signed and for about 10 days these agencies were banned from arresting anyone who decided to carry a concealed firearm. However, the TRO was alleged to be unclear by agencies not listed as defendants in this first Hamilton County lawsuit. In fact, those agencies that were banned from making the arrests simply called in other bordering departments to make arrests. Since the law is a state law, any commissioned officer can arrest you for violating it anywhere in the State.

Because the temporary restraining order was before the trial, the city and the county convinced the Appeals Court to overturn the TRO until after the trial fact-finding. WARNING: Do not carry a concealed firearm anywhere in Ohio unless you have spoken to a lawyer and/or are willing to be arrested and possibly charged with a felony. It is simply not legal as currently enforced in the state, despite any affirmative defenses to the contrary.

Since then, this case has been subject to a variety of stall tactics. After beating attempts at dismissal and summary judgment, a trial appeared likely until the City of Cincinnati decided to seek assistance from Handgun Control, Inc. of all groups. The judge refused to let HCI's lawyers join the City's counsel since procedurally they did not ask properly, so the City appealed. The appeals court upheld the judge's decision, and the City appealed yet again. The issue then sat dormant for about a year, even after both the plaintiffs (good guys) and the defendants filed a joint motion to allow the anti-gun Handgun Control, Inc. into the case.

The Ohio Supreme Court finally relinquished their grip on the first lawsuit with a very short majority opinion only after a new lawsuit was announced in the same county with the same judge (making the first lawsuit meaningless). Not surprisingly, this decision came the very day after the new lawsuit was filed and the media likely called about what the hell happened to the first lawsuit. The new lawsuit named all law enforcement representatives with powers in Hamilton County, including Governor Taft, as defendants.

The new suit was filed by Pat Feely, OFCC, People's Rights Organization (PRO) and SAF. The cases were combined and the trial went better than any of us hoped. Some police testified that they are taught to arrest everyone, others called the decision to arrest "arbitrary" and a top veteran law enforcement official claimed he couldn't tell whether any of the plaintiffs had "affirmative defenses" preventing arrest or conviction. In short, nobody could understand or explain these laws nor show uniform enforcement practices.

The trial judge, Judge Robert Ruehlman, got involved and asked questions when he heard incredible statements from the other side. As a former prosecutor, he was aware the law had problems, and did not find the claimed justifications for current law enforcement practices credible. The Ohio Constitution and gun owners prevailed in a huge victory.

This decision was immediately stayed by the First District Court of Appeals, but the court also announced it was expediting the case and would not grant additional stays. This was a good sign.

As expected, a unanimous Appeals Court ruled that Ohio's ban on carrying concealed firearms was unconstitutional in a very strongly worded opinion. The monumental decision upheld Judge Ruehlman's trial court decision and legalized concealed carry in Hamilton County for the third time in less than two years.

For two weeks, Hamilton County was similar to Vermont, and no licensing or paperwork was needed to carry a concealed gun! Law-abiding adults did not have to fear being arrested and prosecuted for exercising their rights under the Ohio Constitution when they carried concealed or had a loaded gun in their vehicle.

But the day after Senate President Finan said the Senate would not pass ANY concealed carry legislation until after the Supreme Court decision was made, the Ohio Supreme Court issued a stay pending their decision on taking the case. This could delay the ultimate conclusion for more than a year. Court documents are available here (on the SAF Website)

Since the Feely case and the Hamilton County cases, several judges have been quietly dismissing charges against otherwise law-abiding adults found with concealed firearms and guns in vehicles. This creates a scary system of "depends on the judge you get" whether the gun-carry ban laws remain enforceable. The legislature could solve this crisis quickly.

WHAT ARE THE ISSUES:

The arguments are very clear. The Ohio Constitution enumerated the right of Ohioans to bear firearms for their defense and security. The combined lawsuits have exposed the current scheme as a violation of the Ohio Constitution ( Article 1, Section 1 [inalienable rights to defending life, liberty and property], Article 1, Section 4 [bear arms for defense and security], Article 1, Section 2 [equal protection] and Article 1, Section 16 [due process]). In addition, as all four judges found, the current law treats people as if guilty until proven innocent! All this, plus the disparity between the government workers and private sector employees, makes these laws unconstitutional.

The Ohio laws in question, R.C. 2923.12, bans all concealed carry of firearms with felony penalties for any violations while R.C. 2923.16 bans loaded guns in a motor vehicle. Only after a person is caught violating either of these provisions, and the person incurs the costs and stresses of a criminal trial, does the current law allow the possibility of an "affirmative defense" to be made. It was for this reason, and others, that the laws were struck down.

In appeal, the other side admitted that open carry was not allowed in Cincinnati. This proved that there is currently NO way to carry a firearm for either defense or security outside the home or place of business without being subject to arrest, strip-search, booking, jail, and the costs and expenses of hiring an attorney and facing the humiliation of prosecution as well as the loss of the very right people are trying to exercise.

Plaintiffs now include Pat Feely, who was previously arrested and tried under the gun carry ban scheme. Both the prosecutor and the judge in that case stated that the law should be changed or repealed. While Feely was acquitted at trial, he risked the same charges again if found carrying a concealed firearm in the future. The threat and costs of repeated prosecutions was only one of many reasons the current law was declared unconstitutional.

Nationally, 42 states specifically allow the carrying of concealed weapons or firearms with a license or permit. Vermont allows the carrying of concealed firearms without any license/permit because of a court decision, State v. Rosenthal (1903). Of the remaining 7 states, Ohio is unique with its affirmative defense and on whom the burden of proof is placed.

This case, at the very least, has the potential of forcing the Legislature to enact a concealed carry law as is present in so many other states. Already, the Ohio General Assembly quickly passed a shall-issue right to carry bill, and this bill is now in the Senate.

WHAT YOU CAN DO:

If you haven't done it already, join Ohioans For Concealed Carry today. Make a donation, get an OFCC shirt, car-pool to the Senate Committee Meetings this fall... We need your help because this lawsuit alone is not going to win it. The legislature is stalling, and we must force them to act. The lawsuit is not a sure thing, especially after the bizarre Ohio Supreme Court ruling on the lawsuit against the gun manufactures.

Links related to this story are at the top of this page. We highly recommend you look at SAF's Ohio page, Chuck Klein's website and follow the Related Topics link on the left border of this page. An entire topic area of our website has been devoted to Hamilton County issues. We will be posting news related to this subject to that topic area, as well as to the main area of news.

RELATED LINKS:

The following links are provided for additional information and may spawn a new browser window and take you to a third party website.

OFCC's Hamilton County News Archive (Local)

The Second Amendment Foundation's "Ohio" Page

Chuck Klein's Concealed Carry Page - Chuck is a plaintiff