Wow...9th district ruling on improper handling of a firearm.

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glockowner
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Wow...9th district ruling on improper handling of a firearm.

Post by glockowner »

Very interesting case decided in August by the 9th District Appeals.

http://sc.ohio.gov/rod/docs/pdf/9/2012/ ... o-3788.pdf" onclick="window.open(this.href);return false;

Synopsis: Sean Shover (with a loaded gun) and his father drive to Akron with said gun to protect Shover's brother while he pays a third party $20. Brother had told his father that third party had a gun. Police get call for kidnapping and end up arresting the three. Shover is convicted of improper handling of a firearm in a motor vehicle.

Trial Ruling: Aside from the conviction, Shover entered a motion to dismiss arguing that Ohio Revised Code section 2923.16(B) is unconstitutional given the U.S. Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago because it “does not contain an exception for a person to transport a loaded handgun when there is reasonable fear of a criminal attack.” (Remember, the brother told his father over the phone that the man owned a gun.) MOTION DENIED.

9th District Ruling on appeal of the motional to dismiss denial: Reversed and remanded.

This is really interesting and has all sorts of implicatons for open carry without a CHL in a motor vehicle.....2923.16(b) may be unconstitutional....

Just saying. Enjoy
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JediSkipdogg
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Re: Wow...9th district ruling on improper handling of a fire

Post by JediSkipdogg »

This is one that would be nice if it made it to the SCOTUS tomorrow. It could have a huge effect on the country as a whole and would be extremely nice if it went our way which with the current justices it may. In a year or two, well, the verdict may swing the other way.
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JmE
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Re: Wow...9th district ruling on improper handling of a fire

Post by JmE »

Good find!
Then, Sir, we will give them the bayonet! - Gen.Thomas "Stonewall" Jackson
It is well that war is so terrible, otherwise we should grow too fond of it. - Gen. Robert E. Lee
If we must die, we die defending our rights. - Chief Sitting Bull

Moreover, were he to return there, wouldn't he be rather bad at their game, no longer being accustomed to the darkness? - Plato
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BobK
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Re: Wow...9th district ruling on improper handling of a fire

Post by BobK »

Not as sweeping as appears. Basically, the appeals court said the original court had to review the case again to first determine what level of scrutiny is appropriate in Second Amendment-related cases. Next, given that level of scrutiny, does R.C. .2923.16(B) meet the standard.

Still a long way away from any positive outcome.
I am a: NRA Life Member, Texas State Rifle Association Life Member, Texas Firearms Coalition Gold member, OFCC Patron Member, former JFPO member (pre-SAF).

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Werz
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Re: Wow...9th district ruling on improper handling of a fire

Post by Werz »

Interesting. Technically, in matters involving personal liberties, you would expect the supporting opinion to come from the most liberal judge on the bench. However, that's usually not the case with guns and the Second Amendment. I must give credit to Eve Belfance for issuing an opinion which, in the long run, may not sit well with her usual supporters. By the same token, this could be a set-up to establish a lower level of scrutiny after the trial court issues a decision and the case is returned to the court of appeals. We will have to wait and see.

Oh, and reading between the lines, I am reasonably certain that appellant's brother was being held hostage for a drug debt, and it was probably for more than $20. These scenarios are quite common, and nobody ever tells the whole truth about them. Nevertheless, that doesn't render appellant's right of self-protection invalid, and it may make it even more important.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
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Open carry is a First Amendment exercise.
glockowner
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Re: Wow...9th district ruling on improper handling of a fire

Post by glockowner »

BobK wrote:Not as sweeping as appears. Basically, the appeals court said the original court had to review the case again to first determine what level of scrutiny is appropriate in Second Amendment-related cases. Next, given that level of scrutiny, does R.C. .2923.16(B) meet the standard.

Still a long way away from any positive outcome.
Right! Briefs are due Oct 31 to Summit County Common Pleas Judge Tom Parker by 31 OCT to answer the question: "What test applies to evaluate whether ORC 2923.16(B) unconstitutionally impinges on the 2A right outlined in Heller?"

Here is the Journal Entry:

http://www.cpclerk.co.summit.oh.us/WebM ... 092512.pdf" onclick="window.open(this.href);return false;

Defendant is indigent, but has the same counsel appointed that won the appeal.
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sodbuster95
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Re: Wow...9th district ruling on improper handling of a fire

Post by sodbuster95 »

Werz wrote:By the same token, this could be a set-up to establish a lower level of scrutiny after the trial court issues a decision and the case is returned to the court of appeals. We will have to wait and see.
My knee-jerk reaction was that the lower court now had an opportunity to use an intermediate level of scrutiny that was "higher" than rational basis, but not by much as long as they could explain their reasoning.

The way I read this case, the appellate ruling was more a statement on the lack of a defined level of scrutiny than a disagreement with the outcome. Basically, the judicial version of "show your work."

Or, maybe I'm just turning into a pessimist. :?
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Werz
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Re: Wow...9th district ruling on improper handling of a fire

Post by Werz »

sodbuster95 wrote:
Werz wrote:By the same token, this could be a set-up to establish a lower level of scrutiny after the trial court issues a decision and the case is returned to the court of appeals. We will have to wait and see.
My knee-jerk reaction was that the lower court now had an opportunity to use an intermediate level of scrutiny that was "higher" than rational basis, but not by much as long as they could explain their reasoning.

The way I read this case, the appellate ruling was more a statement on the lack of a defined level of scrutiny than a disagreement with the outcome. Basically, the judicial version of "show your work."

Or, maybe I'm just turning into a pessimist. :?
Your pessimism is healthy, and I think celebration is premature. As I noted, this is a rather unexpected outcome for that particular judge, and the 9th District is well-known amongst Ohio appellate courts for their policy of finding "no final appealable order" and kicking the case back to the trial court. This may, indeed, be an issue of "show your work," and when the case goes back to the Court of Appeals, the result may not be what the folks in OFCC were hoping to see.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
-- BobK
Open carry is a First Amendment exercise.
glockowner
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Re: Wow...9th district ruling on improper handling of a fire

Post by glockowner »

Briefs are in...

Defense atty went whole hog....33 pages:
http://www.cpclerk.co.summit.oh.us/WebM ... 103012.pdf" onclick="window.open(this.href);return false;

Bevin-Walsh (prosecutor) went with 8 pages:
http://www.cpclerk.co.summit.oh.us/WebM ... 103112.pdf" onclick="window.open(this.href);return false;

Still digesting and determining if the arguments are cogent.

Now it is up to Tom Parker to rule.....
JmE
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Re: Wow...9th district ruling on improper handling of a fire

Post by JmE »

The two links didn't work for me and I'm running too late to figure out why right now.
Then, Sir, we will give them the bayonet! - Gen.Thomas "Stonewall" Jackson
It is well that war is so terrible, otherwise we should grow too fond of it. - Gen. Robert E. Lee
If we must die, we die defending our rights. - Chief Sitting Bull

Moreover, were he to return there, wouldn't he be rather bad at their game, no longer being accustomed to the darkness? - Plato
glockowner
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Re: Wow...9th district ruling on improper handling of a fire

Post by glockowner »

JmE wrote:The two links didn't work for me and I'm running too late to figure out why right now.
Sorry, you may have to go here:

http://www.cpclerk.co.summit.oh.us/Disc ... vision.asp" onclick="window.open(this.href);return false;

Agree to the disclaimer.
Select "Criminal."
Select "Search by Name."
Enter Shover as last name.
Select the case from 2010, Sean Shover.
Briefs are half-way down the page.
JmE
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Re: Wow...9th district ruling on improper handling of a fire

Post by JmE »

Thanks. It's probably because the two PDFs are "cached" in the URL. Also, the link in the last post can "time out" immediately so, IMHO, it's best to go to http://www.cpclerk.co.summit.oh.us/welcome.asp" onclick="window.open(this.href);return false;, choose "records search" and then follow the instructions in your last post.

Hope this helps everyone, who desires, find and read them.
Then, Sir, we will give them the bayonet! - Gen.Thomas "Stonewall" Jackson
It is well that war is so terrible, otherwise we should grow too fond of it. - Gen. Robert E. Lee
If we must die, we die defending our rights. - Chief Sitting Bull

Moreover, were he to return there, wouldn't he be rather bad at their game, no longer being accustomed to the darkness? - Plato
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Werz
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Re: Wow...9th district ruling on improper handling of a fire

Post by Werz »

glockowner wrote:Briefs are in...

Defense atty went whole hog....33 pages
Not always a good thing. The trick to an appellate brief is to be ... well ... brief. Keep in mind that the three assigned judges need to read a lot of briefs. After you get some experience in writing appellate briefs, you learn that the quicker you can make your point and support it with prevailing law, the more persuasive you can be. Same thing with oral argument. You never want to regurgitate your brief. Make the relevant points quickly, then answer the judge's questions.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
-- BobK
Open carry is a First Amendment exercise.
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sodbuster95
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Re: Wow...9th district ruling on improper handling of a fire

Post by sodbuster95 »

Werz wrote:
glockowner wrote:Briefs are in...

Defense atty went whole hog....33 pages
Not always a good thing. The trick to an appellate brief is to be ... well ... brief. Keep in mind that the three assigned judges need to read a lot of briefs. After you get some experience in writing appellate briefs, you learn that the quicker you can make your point and support it with prevailing law, the more persuasive you can be. Same thing with oral argument. You never want to regurgitate your brief. Make the relevant points quickly, then answer the judge's questions.
As a new attorney, I realized very quickly that short and sweet is almost always a better way to go. It keeps people's attention, it makes for a better presentation, and judges appreciate it. Say it --> Support it --> Sit down and/or put the pen down and shut up.

As nearly as I can tell, however, I am in the minority with that opinion.
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curmudgeon3
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Re: Wow...9th district ruling on improper handling of a fire

Post by curmudgeon3 »

sodbuster95 wrote:
Werz wrote:
glockowner wrote:Briefs are in...

Defense atty went whole hog....33 pages
Not always a good thing. The trick to an appellate brief is to be ... well ... brief. Keep in mind that the three assigned judges need to read a lot of briefs. After you get some experience in writing appellate briefs, you learn that the quicker you can make your point and support it with prevailing law, the more persuasive you can be. Same thing with oral argument. You never want to regurgitate your brief. Make the relevant points quickly, then answer the judge's questions.
As a new attorney, I realized very quickly that short and sweet is almost always a better way to go. It keeps people's attention, it makes for a better presentation, and judges appreciate it. Say it --> Support it --> Sit down and/or put the pen down and shut up.

As nearly as I can tell, however, I am in the minority with that opinion.
Filibustering is much more entertaining. (Talk 'em into mind numbness.)
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