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Ohioans For Concealed Carry v. City of Columbus

Court of Appeals of Ohio, Tenth District

August 1, 2019

Ohioans For Concealed Carry et al., Plaintiffs-Appellees/ Cross-Appellants,
v.
City of Columbus, Ohio c/o City Attorney Zach M. Klein et al., Defendants-Appellants/ Cross-Appellees.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 18CV-5216

         On brief:

          Haynes 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.

          Zach Klein, City Attorney, Lara Baker-Morrish, Charles Campisano, and Richard N. Coglianese; Eric Tirschwell, for defendants-appellants/cross-appellees.

          Jones Day, Benjamin C. Mizer, and Yvette McGee Brown, for Amicus Curiae Giffords Law Center.

          Dave Yost, Attorney General, Steven T. Voigt, Jonathan R. Fulkerson, and Frederick D. Nelson, for Amicus Curiae State of Ohio.

         Argued:

          David S. Kessler.

          Lara Baker-Morrish.

          DECISION

          DORRIAN, J.

         {¶ 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, we reverse.

         I. History

         {¶ 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.[1]

         {¶ 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 preliminary injunction.

         {¶ 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.

         II. Assignments of Error

         {¶ 8} The City appeals and assigns five errors for our review:

[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.

         III. First Assignment of Error-Standing

         {¶ 10} In its first assignment of error, the City asserts the trial court erred by determining firearm ...


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