Ohioans For Concealed Carry et al., Plaintiffs-Appellees/ Cross-Appellants,
City of Columbus, Ohio c/o City Attorney Zach M. Klein et al., Defendants-Appellants/ Cross-Appellees.
from the Franklin County Court of Common Pleas C.P.C. No.
Kessler Myers & Postalakis, Inc., David S. Kessler,
Stephen P. Postalakis, and Eric B. Hershberger; James P. Sean
Maloney; Barney DeBrosse, LLC, and Derek A. DeBrosse; Ronald
Lemieux, for plaintiffs-appellees/cross appellants.
Klein, City Attorney, Lara Baker-Morrish, Charles Campisano,
and Richard N. Coglianese; Eric Tirschwell, for
Day, Benjamin C. Mizer, and Yvette McGee Brown, for Amicus
Curiae Giffords Law Center.
Yost, Attorney General, Steven T. Voigt, Jonathan R.
Fulkerson, and Frederick D. Nelson, for Amicus Curiae State
1} Defendants-appellants/cross-appellees, City of
Columbus and Columbus City Attorney Zach M. Klein ("city
attorney") (collectively "the City"), appeal
the July 12, 2018 entry of the Franklin County Court of
Common Pleas, which granted a permanent injunction enjoining
enforcement of Columbus City Code ("C.C.C.")
2323.171 and denied injunctive relief as to enforcement of
C.C.C. 2323.13. In this court, on January 18, 2019, the City
filed a motion to vacate and remand, asserting a federal rule
published by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives had "substantial repercussions" on the
present matter requiring reversal for an initial
determination in the trial court. For the following reasons,
2} On June 21, 2018,
plaintiffs-appellees/cross-appellants, Ohioans for Concealed
Carry ("OCC"), Buckeye Firearms Foundation, Inc.
("BFF"), and Gary Witt (collectively "firearm
plaintiffs"), filed against the City a complaint for
injunction and declaratory relief, a motion for preliminary
injunction, and motion for a temporary restraining order. In
their complaint, firearm plaintiffs asserted C.C.C. 2323.13
and 2323.171, which were enacted by City of Columbus
Ordinance 1116-2018, were unconstitutional and in violation
of R.C. 9.68.
3} C.C.C. 2323.171, which governs unlawful
possession of firearm accessories, provides:
(A) No person shall knowingly acquire, have, carry, or use an
illegal rate-of-fire acceleration firearm accessory.
(B) Whoever violates this section is guilty of unlawful
possession of a firearm accessory, a misdemeanor punishable
by up to one year in jail with a mandatory minimum jail term
of at least one hundred eighty (180) consecutive days during
which mandatory jail term the defendant shall not be eligible
for work release and up to a $1500 fine.
(C) For the purposes of this section:
(1) "Illegal rate-of-fire acceleration firearm
accessory" means any trigger crank, a bump-fire device,
or any part, combination of parts, component, device,
attachment, or accessory, that is designed or functions to
accelerate the rate of fire of a semiautomatic firearm but
not convert the semi-automatic firearm into an automatic
firearm. These include, but are not limited to, firearm
accessories described or marketed as bump stocks, bump-fire
stocks, slide fires, and accelerators.
C.C.C. 2323.13 provides for the offense of having weapons
while under disability, a misdemeanor of the first degree. In
pertinent part, C.C.C. 2323.13 prohibits any person from
knowingly acquiring, having, carrying, or using any firearm
or dangerous ordinance, if the person has "been
convicted of a misdemeanor offense of domestic
violence." C.C.C. 2323.13(A)(3).
4} On June 22, 2018, the trial court entered a
temporary restraining order, enjoining the City from all
enforcement activity associated with C.C.C. 2323.171 and
2323.13. On June 22, 2018, the state of Ohio moved for leave
to file an amicus curiae brief in support of a preliminary
injunction. On June 26, 2018, the trial court filed a
decision and entry granting the state's motion for leave
to file an amicus curiae brief.
5} On June 26, 2018, the City filed an answer. On
June 29, 2018, the City filed a memorandum in opposition to
firearm plaintiffs' motion for preliminary injunction. On
June 29, 2018, the City filed a notice requesting an
evidentiary hearing on the preliminary injunction and
submitting that they "[did] not consent to combining the
hearing for a preliminary injunction with the trial on the
merits." (June 29, 2018 Notice.) On July 2, 2018, the
City submitted supplemental exhibits in support of their
memorandum in opposition to firearm plaintiffs' motion
for preliminary injunction.
6} On July 2, 2018, firearm plaintiffs filed a
notice stating that no evidentiary hearing was needed on
their motion for preliminary injunction. On July 6, 2018,
firearm plaintiffs filed a reply to the City's memorandum
in opposition to firearm plaintiffs' motion for
7} On July 9, 2018, the trial court held a hearing
on the motion for preliminary injunction. At the hearing,
firearm plaintiffs introduced testimony from Jeff Steley, a
private military contractor. The City introduced testimony
from Yasmine Makridis, a city of Columbus prosecutor working
in the domestic violence unit. On July 12, 2018, the trial
court issued an entry granting a permanent injunction
enjoining enforcement of C.C.C. 2323.171 and denying
injunctive relief regarding enforcement of C.C.C. 2323.13.
Assignments of Error
8} The City appeals and assigns five errors for our
[I.] The trial court erred by finding [firearm] Plaintiffs
had standing to bring the instant action.
[II.] The trial court erred by de facto
consolidating the final trial on the merits on [firearm]
Plaintiffs' claim for a permanent injunction/declaratory
judgment with the hearing on [firearm] Plaintiffs'
application for a preliminary injunction as to their
challenge to C.C.C. 2323.171 pursuant to R.C. 9.68 without
providing notice of the same and over the express objection
of the City.
[III.] The trial court erred by entering a final order
conclusively deciding the issue of whether C.C.C. 2323.171 is
in conflict with R.C. 9.68 as a matter of law at a hearing on
a motion for a preliminary injunction even though the limited
and incomplete record evinced conflicting evidence as to a
disputed matter of fact and the City expressly objected to a
waiver of trial on the merits.
[IV.] The trial court erred by qualifying an expert witness
and allowing his testimony to be offered into evidence over
the City's objection and despite Plaintiffs' failure
to provide a copy of any expert witness report.
[V.] The trial court erred in finding C.C.C. 2323.171 to be
in conflict with R.C. 9.68 in contravention of the Ohio
Constitution's Home Rule Amendment.
9} On cross-appeal, firearm plaintiffs assign two
errors for our review:
[I.] The trial court erred in failing to find that the City
was liable to pay attorney's fees to [firearm plaintiffs]
and hold a hearing on the amount of the fees.
[II.] The trial court erred in finding the Weapons Disability
Ordinance (C.C.C. §2323.13) was a constitutional
enactment, a lawful exercise of the City's police powers,
and not in conflict with [R.C.] 9.68.
First Assignment of Error-Standing
10} In its first assignment of error, the City
asserts the trial court erred by determining firearm