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Supreme Court Strikes Down City Ordinance Banning Guns in Public Parks

2007-0960.  Ohioans For Concealed Carry, Inc. v. Clyde, Slip Opinion No. 2008-Ohio-4605.
Sandusky App. Nos. S-06-039 and S-06-040, 2007-Ohio-1733.  Judgment affirmed.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Moyer, C.J., and Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-4605.pdf

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(Sept. 18, 2008)  The Supreme Court of Ohio held today that a Clyde city ordinance banning possession of firearms in municipal parks is unconstitutional because it conflicts with a general state law that permits licensed individuals to carry a concealed weapon on any public property other than at locations specified in the state statute. The Court’s 4-3 decision was authored by Justice Terrence O’Donnell.

In January 2004, the General Assembly enacted R.C. 2923.126, a state law allowing persons who meet certain qualifications and obtain a license to carry a concealed firearm anywhere in Ohio other than in excepted locations enumerated in the statute. In uncodified language adopted as part of the concealed carry bill, the legislature declared that its purpose was to adopt a general and uniform regulatory scheme for the concealed carry of firearms in all parts of the state. In adopting that scheme, the legislature stated that it intended to preempt the future adoption or enforcement by any Ohio municipality or political subdivision of any local ordinance that conflicted with state law by prohibiting the carrying of a concealed weapon in a location where concealed carry is permitted by R.C. 2923.126.

In June 2004, the Clyde City Council enacted a municipal ordinance that prohibited any person within the confines of any city park from possession of a deadly weapon. The ordinance expressly included in its weapons ban persons who were licensed to carry a concealed firearm “pursuant to R.C. 2923.125.” In August 2004, Ohioans for Concealed Carry (OCC) filed suit in the Sandusky County Court of Common Pleas seeking a declaratory judgment that the Clyde ordinance was void and unenforceable because it was in conflict with R.C. 2923.126. 

While the Clyde case was pending, the Sixth District Court of Appeals in Toledo v. Beatty upheld a Toledo city ordinance banning guns from city parks. Citing Beatty, the trial court entered judgment in favor of Clyde, affirming the enforceability of its ordinance. OCC appealed. While that appeal was pending, the legislature adopted new legislation, H.B. 347, reaffirming its intent to enact a statute that would “provide uniform laws throughout the state” regulating the concealed carry of firearms and explicitly stating that Ohioans have a fundamental constitutional right to possess a firearm where such possession is not expressly prohibited by the U.S. or Ohio constitutions or by a state or federal law. In light of the adoption of H.B. 347, the 6th District abandoned its previous holding in Beatty, reversed the ruling of the trial court, and invalidated the Clyde city ordinance as in conflict with a “general law of the state.”

Clyde sought and was granted Supreme Court review of the appellate court ruling.

The majority in today’s decision, rejected Clyde’s claim that the challenged ordinance was a valid exercise of the city’s “home rule” powers granted by Section 3, Article XVIII, of the Ohio Constitution, and affirmed the 6th District’s holding that the local ordinance is unconstitutional because it conflicts with a general law of the state.

In arriving at that conclusion, Justice O’Donnell analyzed the city ordinance and the state statute under tests established by prior Supreme Court decisions. The majority held that: (1) The Clyde ordinance is not an “exercise of local self-government” affecting only the internal affairs of the city but is rather “an exercise of police power” that establishes a public safety regulation also applicable to non-residents using the city’s parks; (2) R.C. 2923.125 meets each of the four criteria for a statute to qualify as a “general law” set forth in the Supreme Court’s 2002 decision in Canton v. State;  and (3) The Clyde ordinance is “in conflict with” R.C. 2923.125 because it prohibits conduct (i.e. possession of a gun by a person licensed to carry a concealed weapon in a public park) that is permitted by the state law.

Clyde specifically claimed that R.C. 2923.125 is not a “general law” subject to uniform statewide application because it allows owners of private property to bar concealed weapons but denies public entities the same option. In the majority opinion, Justice O’Donnell wrote: “The distinction between private and public property merely reflects that private landowners can restrict access to their property in many ways public owners cannot. ... There is a distinction between public and private property. A private landowner is the sole possessor of private property. ... On the other hand, public property is owned by the taxpayers and is accessible to all. If there were no distinction made between public and private property as the dissent suggests, then a municipality could in the future choose to expand the prohibition from public parks to public sidewalks and roadways, and eventually to all public property. We therefore conclude that the public/private distinction does not affect the uniform application of this statute.”

The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Chief Justice Thomas J. Moyer entered a dissent, joined by Justice Judith Ann Lanzinger, in which he disputed the majority’s holding that R.C. 2923.125 meets the requirement set forth in Canton v. State that in order to be a “general law” a state statute must “operate uniformly throughout the state.”

He wrote: “Given the exception for private property owners, the general rules on where a person may carry a concealed handgun fluctuate depending on who owns the property at issue ... The different treatment of public and private property is patently arbitrary and unreasonable; it affects one class of land solely on the basis of ownership, which has little to do with the relative safety of allowing concealed handguns on a particular type of property ... Given the arbitrary and unreasonable distinction between public and private landowners, the fact that the law is subject to the will of private landowners, and the fact that the statute fails to meet its stated objective of establishing uniformity in its designation of those places in which persons may carry concealed handguns, I would hold that R.C. 2923.126 is not a general law and that it therefore does not take precedence over Clyde Ordinance 2004-41.”

Justice Paul E. Pfeifer entered a separate dissenting opinion stating that the 2004 amendments to the state concealed carry statute are unconstitutional under the Equal Protection Clause: “There is no rational basis to distinguish between private and public property owners in regard to their statutory ability to prevent persons from carrying firearms onto their property. Clyde owns its municipal park. Is there any reason why the owner of this property, where families gather and children play, should be forced to allow people with guns to enter, while the private owner of a public space such as a shopping mall can bar from entry any gun-carrying citizens?”

John C. McDonald, 614.462.2201, for the City of Clyde.

Daniel T. Ellis, 419.882.7100, for Ohioans for Concealed Carry.

William P. Marshall, 614.466.8980, for the Ohio Attorney General’s Office.