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Cincinnati Ordinance Held ‘Not In Conflict’ With State Law Regulating Semiautomatic Rifles

2004-1829. Cincinnati v. Baskin, 2006-Ohio-6422.
Hamilton App. No. C-030864, 158 Ohio App.3d 539, 2004-Ohio-5055 . Judgment reversed and cause remanded.
Moyer, C.J., Resnick, Pfeifer and Lanzinger, JJ., concur.
Lundberg Stratton, J., concurs in the syllabus and the judgment.
O'Connor and O'Donnell, JJ., concur in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-Ohio-6422.pdf

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(Dec. 8, 2006) The Supreme Court of Ohio today held unanimously that a Cincinnati city ordinance banning the possession of a semiautomatic rifle with a magazine capacity of more than 10 rounds of ammunition is not in conflict with a state statute barring possession of semiautomatic weapons with a magazine capacity of more than 31 rounds.

Section 3, Article XVIII of the Ohio Constitution, often called the “home rule” amendment, states that municipalities “shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

In a majority opinion authored by Justice Alice Robie Resnick, the Court noted that the language of both the state statute and city ordinance is prohibitory rather than permissive, and held that the two provisions are not in conflict because the state law does not affirmatively “permit” ownership of weapons that are prohibited under the city ordinance (i.e. weapons with magazine capacities of from 11 to 31 rounds). Observing that the state statute does not declare an intention to preempt local regulation of these weapons, the Court concluded that the legislature intended to allow municipalities to regulate the possession of lower-capacity semiautomatic weapons within city limits, providing that a city may not permit weapons with a capacity higher than the statutory limit of 31 rounds.

The decision reversed rulings of the Hamilton County Court of Common Pleas and 1st District Court of Appeals, and reinstated a weapons charge against Colt Lee Baskin of Cincinnati. Baskin was charged in May 2003 with violating Cincinnati Municipal Code 708-37, which prohibits the possession of a semiautomatic rifle with a capacity of more than 10 rounds. Baskin sought and was granted dismissal of the charge by the trial court, which ruled that the city ordinance conflicted with a “general law” of the state and was therefore unenforceable under the home rule amendment. On review, the 1st District Court of Appeals affirmed the trial court's ruling.

In today's majority opinion, Justice Resnick acknowledged that in a case announced very recently, American Financial Services Assn. v. Cleveland, the Supreme Court invalidated a Cleveland city ordinance on the basis that it imposed more restrictive regulations on mortgage lending practices than were imposed by statutory guidelines enacted by the state legislature. She noted, however, that the state mortgage lending statute at issue in American Financial Services included specific language preempting local regulation and indicating legislative intent to impose a uniform statewide regulatory scheme.

In this case, Justice Resnick wrote: “The relevant state statutes, i.e., R.C. 2923.11 and 2923.17, prohibit the possession of semiautomatic firearms that are designed or adapted to fire more than 31 cartridges without reloading. They do not, however, permit or authorize the possession of semiautomatic firearms that are capable of firing 31 or fewer cartridges without reloading. There is nothing in the weapons-control measures in the criminal code that manifests an intent to prevent municipalities from regulating the possession of semiautomatic firearms that hold less than 32 rounds. There is no provision in the statute declaring or otherwise suggesting that the limitation upon firing capacity fixed therein is the only limitation controlling the possession of a semiautomatic firearm, that such limitation shall not be diminished or altered by municipal regulation, or that municipalities may not prohibit the possession of lower capacity firearms than are prohibited by the statute.”

“In the absence of any limiting provision or declaration to the contrary,” wrote Justice Resnick, “we conclude that the General Assembly intended to allow municipalities to regulate the possession of lower capacity semiautomatic firearms in accordance with local conditions, requiring only that under no condition shall municipalities allow the possession of any semiautomatic firearm that is capable of firing more than 31 cartridges without reloading. Thus, the ordinance does not prohibit what the statute permits. Accordingly, we hold that Cincinnati Municipal Code 708-37, which prohibits the possession of any semiautomatic rifle with a capacity of more than ten rounds, is not in conflict with R.C. 2923.17(A) for purposes of Section 3, Article XVIII of the Ohio Constitution.”

Justice Resnick's opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Judith Ann Lanzinger.

Justice Maureen O'Connor entered a separate opinion in which she concurred with the majority in judgment only and spelled out a detailed analytical process she would apply in reviewing purported conflicts between state statutes and local ordinances adopted by “home rule” municipalities. Justice O'Connor wrote that she would place particular emphasis on the presence or absence of statutory language indicating intent by the state legislature to preempt adoption of local regulations in a given area of activity in favor of a uniform statewide regulatory scheme.

In this case, Justice O'Connor wrote, neither the language of Ohio's current statute regulating possession of firearms nor the history of state legislation in that area suggests an intent by the General Assembly to preempt home rule cities from adopting local police regulations that may be more restrictive than those imposed by state law. She concluded that, “(a)s the legislature and the nature of the legislation in no way indicates an intent to limit the power of municipalities to pass more restrictive firearms ordinances, I find that Cincinnati Municipal Code 708-37 does not conflict either expressly or by implication with Ohio law, as both prohibitory enactments can coexist and the ordinance in no way prohibits what Ohio law specifically permits. Accordingly, I concur in the reversal of the opinion of the court of appeals.”

Justice Evelyn Lundberg Stratton concurred in the judgment and syllabus holding of the majority, but also joined Justice O'Connor's separate concurrence.

Justice Terrence O'Donnell also entered a separate opinion concurring with the majority in judgment only. He asserted that any analysis of home rule powers must begin by recognizing the inherent constitutional right of municipalities to adopt and enforce local police regulations that are not in conflict with general laws. Justice O'Donnell said he did not agree that the state legislature can by its own statement preempt a field of legislation, but would hold that home rule analysis needs to be concerned with whether or not a conflict exists between the local legislation and a general law.

In this case, he wrote, both the municipality and the state regulate possession of weapons in Ohio. The only conflict between the Cincinnati ordinance and state law is found in the definitional sections of those enactments. Citing court decisions holding that a “general law” is a statutory provision that “prescribes a rule of conduct upon citizens generally,” Justice O'Donnell said he would hold that the state's definition of a semi-automatic weapon is not a general law because it does not prescribe any rule of conduct upon the public. Therefore, O'Donnell said, he would conclude that the Cincinnati ordinance is valid and enforceable because it is not in conflict with a general law.

Charles A. Rubenstein, 513.241.7460, for the City of Cincinnati.

Robert H. Lyons, 513.777.2222, for Colt Lee Baskin.