Gov't bldg. open carry theory

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.

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techguy85
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Re: Gov't bldg. open carry theory

Post by techguy85 »

JediSkipdogg wrote:
MyWifeSaidYes wrote:But that's regarding concealed carry, not open carry.
So are you saying there needs to be a 2923.126(c)(3)(b) that talks about the signs applying to open carry? What werz and I are saying is 2923.126 holds no force of the law and does nothing. 2911.21 is the law and that applies to whatever the signage says. 2923.1212 mentions all firearms. I guess if a government wants to change the wording and only say concealed carry, then open carry would be allowed. But if they copy the wording of 2923.1212 then it applies to both and creates a violation of 2911.21.
This is exactly what we were saying. Trespassing charge does not in any way have to be based on anything in
R.C. 2923.126. The only purpose of making reference to it from that section is to make doubly clear to licensees that signs do carry the force of trespassing.
That does not in any way limit the application of the trespass statute itself.
And as we've already discussed, it could apply given the wording of the AG's suggested sign.
Listen I'd love for there to be some kind of creative way to make you right, but it doesn't really look like that's the case. You are reaching, and reaching pretty far.
You know that I think that it is BS that we can't carry on campus and in government buildings. And yes, I'd prefer if we had open carry as an option at a minimum. But wishing it so doesn't make it so.
I used to think that having the option to open carry in some of these locations might eventually give us a way to force a consideration of allowing concealed carry in these locations but given what's been explained to me since on the trespass law I'm starting to think that we're going to have to wait for a legislative fix.
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MyWifeSaidYes
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Re: Gov't bldg. open carry theory

Post by MyWifeSaidYes »

JediSkipdogg wrote:
MyWifeSaidYes wrote:But that's regarding concealed carry, not open carry.
So are you saying there needs to be a 2923.126(c)(3)(b) that talks about the signs applying to open carry? What werz and I are saying is 2923.126 holds no force of the law and does nothing. 2911.21 is the law and that applies to whatever the signage says. 2923.1212 mentions all firearms. I guess if a government wants to change the wording and only say concealed carry, then open carry would be allowed. But if they copy the wording of 2923.1212 then it applies to both and creates a violation of 2911.21.
And therein lies the problem.

For this mental exercise, I'm not considering 2923.126 at all. That's specific to concealed carry, just like all the statutes from 2923.12 thru 2923.25.

The wording for the sign in 2923.1212 is NOT specified. It CAN'T be. If the wording suggested were instead mandated, it WOULD restrict open carry. Klein v. Leis showed that open carry is not to be restricted.

Because the wording is not specified, that makes the sign unconstitutionally vague when considering that open carry is a right and concealed carry is not.

If the sign = law, because it is created under 2923.1212, then IT cannot be vague, right?

Does the sign, which DOES have force of law against the privilege of concealed carry ALSO have force of law against a RIGHT that is protected by the Ohio Constitution and confirmed by the Supreme Court of Ohio?

It can't.

What other statute in Chapter 2923 restricts open carry, other than enumerated locations?

None.

Of course...I could be wrong.
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Re: Gov't bldg. open carry theory

Post by MyWifeSaidYes »

Let me change the exercise a bit.

Instead of arguing amongst ourselves (or me arguing with everybody else :P ), how would I present my concerns to the courts?

Is there a way to file a motion for the courts to clarify whether or not the sign created by 2923.1212 applies to open carry or not?

If so, what is it and where would I start? (pro se, of course...I'm poor)
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Re: Gov't bldg. open carry theory

Post by BobK »

MyWifeSaidYes wrote:Let me change the exercise a bit.

Instead of arguing amongst ourselves (or me arguing with everybody else :P ), how would I present my concerns to the courts?

Is there a way to file a motion for the courts to clarify whether or not the sign created by 2923.1212 applies to open carry or not?

If so, what is it and where would I start? (pro se, of course...I'm poor)
I hope you are not seriously considering that.

One way we get unfavorable rulings established as "case law" is when someone mounts an inadequate legal case and gets trounced. The other way is to pursue a bad case in the face of unfavorable facts.

That is why the Second Amendment Foundation and the NRA search carefully for the right test cases and wage legal battles strategically.

"Pro se" to me sounds like a grenade ready to explode and spray debris over the entire gun rights community. The collateral damage could be high.
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Re: Gov't bldg. open carry theory

Post by xpd54 »

I have been pondering this very same question for a while. Since I am preparing a lesson plan for a seminar covering open and concealed carry, I decided to go to my local prosecutors (municipal and county) and ask them. Still waiting for an anwer. I'll be interested to see how they answer it.
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Re: Gov't bldg. open carry theory

Post by schmieg »

xpd54 wrote:I have been pondering this very same question for a while. Since I am preparing a lesson plan for a seminar covering open and concealed carry, I decided to go to my local prosecutors (municipal and county) and ask them. Still waiting for an anwer. I'll be interested to see how they answer it.
There's a very good chance you won't receive one. The prosecutor's office is the municipal or county attorney and generally won't provide legal advice to individuals as it doesn't have an attorney-client relationship.
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Re: Gov't bldg. open carry theory

Post by Werz »

schmieg wrote:
xpd54 wrote:I have been pondering this very same question for a while. Since I am preparing a lesson plan for a seminar covering open and concealed carry, I decided to go to my local prosecutors (municipal and county) and ask them. Still waiting for an anwer. I'll be interested to see how they answer it.
There's a very good chance you won't receive one. The prosecutor's office is the municipal or county attorney and generally won't provide legal advice to individuals as it doesn't have an attorney-client relationship.
I doubt that's the issue. It's probably that they don't want to commit to unconditional rules.
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"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.
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Re: Gov't bldg. open carry theory

Post by mreising »

schmieg wrote:
xpd54 wrote:I have been pondering this very same question for a while. Since I am preparing a lesson plan for a seminar covering open and concealed carry, I decided to go to my local prosecutors (municipal and county) and ask them. Still waiting for an anwer. I'll be interested to see how they answer it.
There's a very good chance you won't receive one. The prosecutor's office is the municipal or county attorney and generally won't provide legal advice to individuals as it doesn't have an attorney-client relationship.
I believe xpd54 is a municipal police officer.
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Re: Gov't bldg. open carry theory

Post by CroManGun »

Werz wrote:
schmieg wrote:
xpd54 wrote:I have been pondering this very same question for a while. Since I am preparing a lesson plan for a seminar covering open and concealed carry, I decided to go to my local prosecutors (municipal and county) and ask them. Still waiting for an anwer. I'll be interested to see how they answer it.
There's a very good chance you won't receive one. The prosecutor's office is the municipal or county attorney and generally won't provide legal advice to individuals as it doesn't have an attorney-client relationship.
I doubt that's the issue. It's probably that they don't want to commit to unconditional rules.
Might get a definite maybe out of them.
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Re: Gov't bldg. open carry theory

Post by xpd54 »

mreising wrote:
schmieg wrote:
xpd54 wrote:I have been pondering this very same question for a while. Since I am preparing a lesson plan for a seminar covering open and concealed carry, I decided to go to my local prosecutors (municipal and county) and ask them. Still waiting for an anwer. I'll be interested to see how they answer it.
There's a very good chance you won't receive one. The prosecutor's office is the municipal or county attorney and generally won't provide legal advice to individuals as it doesn't have an attorney-client relationship.
I believe xpd54 is a municipal police officer.
I would hope they give me an answer. I can see it now,

Me: "Citizen X is OCing in the City Service Building (no courthouse/court room). Has he violated the law? If so, what do I charge this guy with?"
Pros: "We don't know."
Me: "Alrighty then, I'll be sending him on his way. Call me when you figure it out."
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Re: Gov't bldg. open carry theory

Post by djthomas »

A couple of months ago I was having an informal conversation with one of our prosecutors and we talked about this hypothetical. I advocated the trespass argument pointing out that there's no defense to the property being publicly owned. At the time he said he'd probably buy that but he'd have to consider it more.

Fast forward to the holiday party last week. This conversation was a bit more nuanced. He told me that he'd discuss it in two parts. First - an arrest for trespassing would probably work in the sense that there's really no direct case law on it. So a reasonable officer could make the arrest without fear of a successful 1983 suit. Second he wasn't all that convinced that he could win such a charge at trial. He said that on the surface it's a pretty cut and dry argument - a sign is posted prohibiting firearms, firearms are present. There's no weapons violation but since a posted notice was ignored it's trespass.

What is giving him heartburn is the fact that this comes down to the intersection of statutory law and [Ohio] constitutional law. He gave me two examples related to free speech: could the school have trespassed its students for the infamous "black arm band" protests during the Vietnam war? Or what if someone wears a shirt to a city council meeting that says "The mayor is a schmuck." The mayor asks the person to leave and they refuse. The person is causing no other disturbance or behaving unlawfully. Arresting such a person for trespass or disorderly conduct would be on very shaky ground. Remember the trespass statute has the phrase "without privilege to do so." Depending on the circumstances exercising a constitutional right in a public forum can be that privilege. Does that privilege apply here? He feels it's for the courts to adjudicate but he'd hate to have to argue that it does not [apply] particularly if the defendant had halfway competent counsel.

To him the bottom line is that there is a constitutional right to bear arms in public in the state of Ohio subject to articulated regulation by the state. The state has regulated concealed carry. It has also prescribed very specific places in which all firearms are prohibited (e.g. courthouses). If the state wanted to apply the 2923.126 (B) list of places to all firearms it would have done so in the same manner as the existing prohibitions. Beyond that it falls to a statewide constitutional right.

This was by no means an official opinion. It was really more of a law school exercise so I wouldn't go out trying to say it has any value beyond being the personal opinion of one man who happens to be a lawyer and a part time prosecutor. YMMV.
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Re: Gov't bldg. open carry theory

Post by Werz »

djthomas wrote:If the state wanted to apply the 2923.126 (B) list of places to all firearms it would have done so in the same manner as the existing prohibitions.
That's a good conceptual legal argument. Unfortunately, in a legislative sense, that will never be feasible for a hot-button subject like guns. There is so much tweaking and negotiating - to address the fears and concerns of everyone involved - that a clear, well-designed rule is impossible.

Remember the (questionably attributed and loosely translated) words of Otto Von Bismarck:
The lesser the people know about how sausages and laws are made, the better they sleep in the night.
"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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Re: Gov't bldg. open carry theory

Post by BB62 »

xpd54 wrote:I have been pondering this very same question for a while. Since I am preparing a lesson plan for a seminar covering open and concealed carry, I decided to go to my local prosecutors (municipal and county) and ask them. Still waiting for an anwer. I'll be interested to see how they answer it.
The only prosecutor I'm aware of who put something in writing re: OC in govt buildings is the prosecutor who covers the county Dayton is in. I believe it was in response to the first stop of Roy Call (in a Kroger parking lot) by the Vandalia PD. (His subsequent stop, and defendant in the resulting ongoing Federal lawsuit, was the Riverside PD)

My system is not good enough for me to find it, but I think the document was mentioned/linked on OFCC and OCDO.
Yes, I do believe in open carry. An openly armed man is clear in his intentions. Concealed carriers are sneaks and skulkers and elitist, boot licking, political contribution making, running dog lackies of The Man. <wink> (thx grumpycoconut - OpenCarry.org)

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