FOP complains about HB 203 removing OC as RAS for Terry stop

Open Carry is carrying a firearm unconcealed in Ohio. OC does not require a concealed handgun license, but the practice requires intimate knowledge of the law since there are places and situations where OC is prohibited but carrying concealed would be permitted. OC is also likely to attract attention. This forum is for discussion of OC, not for debating the pro's and con's or coordinating any type of protest events.

Moderators: Chuck, Mustang380gal, Coordinators, Moderators

User avatar
charliej47
OFCC Member
OFCC Member
Posts: 854
Joined: Sat Jan 21, 2006 3:28 pm
Location: Middletown, Ohio

Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by charliej47 »

:shock: Over the years certain towns have acquired reputations for certain things. :shock:

Like back in the 60's Cincinnati had a rep for shows for certain animal acts.

Youngstown is acquiring a rep as CCW unfriendly.

After Kennedy was shot, Dallas acquired a rep for having cops with itchy trigger fingers.

LA acquired a rep for having cop murder squads.

The list could go on and on, but the underlying theme is that over time large towns became places that were unfriendly to the average citizen.
Charles Johnson Jr
12GA. pump - Home defense
40 Cal. Main Carry
380 BUG
22lr Live fire practice
The Second Amendment is about the right to be able to protect oneself from all who would do us harm including Legislators!
I came into this world screaming and covered in someone Else's blood, don't care if I go out the same way

Everyone who receives the protection of society owes a return for the benefit. John Stuart Mill, On Liberty
(English economist & philosopher. 1806 - 1873)
Splat!!
Posts: 1383
Joined: Sun Nov 05, 2006 9:43 am
Location: Middletown, Ohio

Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Splat!! »

AndMetal wrote:
Werz wrote:
AndMetal wrote:Just trying to get some clarification. It was my understanding, at least under Ohio law, that affirmative defenses were codified into the law ...
Can you point us to the specific section of the Ohio Revised Code where all the elements of self-defense are codified?

R.C. 2901.05. Burden of proof - reasonable doubt - self-defense
(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.
* * *
(D) As used in this section:
(1) An "affirmative defense" is either of the following:
(a) A defense expressly designated as affirmative;
(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.
I think I get what you're saying (self-defense is an affirmative defense, but is based on case law, not codified in the ORC from what I recall), but I'm not sure how that pertains to the "This section does not apply to any of the following" parts of 2923.12.
Werz wrote:
AndMetal wrote:Based on what you're saying, wouldn't that mean a LEO could (theoretically, not realistically) be arrested for carrying a concealed handgun, and then be forced to prove that they are excepted from it in court? Going a step further, if that is the case, since I believe a loaded, concealed handgun is an F4, wouldn't that be open to a citizen's arrest? What about carrying concealed in one's own home (2923.12(C)(1)(d))? In don't think that's the expectation, but that's part of what I'm getting from what you posted, hence my confusion. I'm certainly not a legal expert, but I try my best to be aware of these sorts of things, so I am very appreciative of the feedback from people like yourself to better understand what's okay and what's not in the eyes of the legal system, especially when it comes to case law.
The issue is that, in many people's minds, an "affirmative defense" is something which will be established in a courtroom. Often, it is established in moments.
This doesn't answer my questions, but thank you for taking the time to respond.
He is saying an affirmative defense can be established either on the street with facts presented to the LEO or with in the court room with facts presented to the grandjury or trial jury...

Yes in theory the LEO could be arrested and you could in theory make a citizens arrest....But once the responding LEOs determine the arrested LEO is authorized by his producing his ID or papers, the affirmative defense is established. In theory you could arrest me if you think I am CC without permit........Although I would not recommend trying either, you do not the backing of union and tax money to defend your decisions.

An affirmative defense is a defense which the accused can articulate "WHY" they done the deed......

Short sweet example in theory.........Ohio says you cannot use deadly force to protect property. Say I am coyote hunting with my son, he is accidentally shot and begins bleeding profusely , I administer first aid to stabilize, I head back to parking lot for the backpack with quikclot and cellphone , as I break into the clearing I see a rogue prying open my trunk and making off with my backpack which has the quikclot and cellphone....

Would I be justified in shooting the thief? Those facts would be heard by the responding LEOs and a determination would be made.
"Our government... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
User avatar
Werz
OFCC Patron Member
OFCC Patron Member
Posts: 5506
Joined: Sun Aug 16, 2009 2:37 am

Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by Werz »

MyWifeSaidYes wrote:A man in Youngstown was stopped for OC of a handgun, but was arrested for the folding knife he had clipped to his belt, since his shirt concealed it.

Since he was a person of slim build, walking to a restaurant alone at night, past establishments that serve alcohol, in a city that is less than crime-free, under 2923.12(D)(2) he may have had reasonable cause to fear a criminal attack. That would qualify as an affirmative defense, right?

He eventually got his case thrown out (no RAS for the OC stop). He eventually got his gun and knife back, too, but THAT took a written order from the judge. The guy never should have learned what the back seat of a cruiser smelled like, let alone what the inside of a jail cell looked like, IMHO.
Michael was carrying openly in non-prohibited places. Under Black, that does not create a reasonable suspicion to detain. An affirmative defense is irrelevant.

Michael was unlawfully detained for the openly carried handgun. The knife was discovered well after the initial detention and was a convenient excuse for charging him. Since the knife was not a factor in the reasonable suspicion to detain, the existence of an affirmative defense is irrelevant in that analysis, too.

The law is what it is. You may firmly believe that it should be different, but as my mama told me when I was a young lad, "Wishin' doesn't make it so."
"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.
User avatar
MyWifeSaidYes
OFCC Coordinator
OFCC Coordinator
Posts: 5449
Joined: Tue Feb 16, 2010 12:59 pm
Location: Central Ohio
Contact:

Re: FOP complains about HB 203 removing OC as RAS for Terry

Post by MyWifeSaidYes »

But you are dismissing the fact that the officers did not have to arrest Michael.

The reason for the stop was invalid, yes, but he was still arrested!

At THAT point (or immediately prior), the officers SHOULD have been open to hearing an affirmative defense.

We do know now that the Sergeant conspired with his Lt. or Capt. to arrest the poor guy on something...anything...but consider an affirmative defense? Nope.
MyWifeSaidYes
Post Reply