New Albany laws...

A sub-forum for the purpose of discussing ORC 9.68 compliance. This sub-forum is strictly for the discussion of progress in individual cities and their respective parks.

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This sub-forum is strictly for the purpose of submitting of, and status updates related to, ORC 9.68 compliance. This could mean park bans, open carry bans, or anything that is a compliance issue. Note the format in which original threads were created. We'll track each individual case here and post updates if assistance is needed, etc. You may start a new thread here to notify us of a non-compliant scenario. Please try to research contact information for each city, village, etc, Email, fax, and postal addresses are great. Digital photos of infractions (Signs) are ideal. With limited exceptions this is NOT a discussion forum.

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BriKuz
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New Albany laws...

Post by BriKuz »

140.16 FIREWORKS, FIREARMS, AND WEAPONS.
(a) No person, other than law enforcement officials, shall carry a firearm of any description, air or gas gun, a bow, crossbow or any other missile throwing device within a park, or discharge any firearms, explosive substances, or air or gas guns into or over a park, or bring into a park any pistol, switchblade or hunting knife, dagger, metal knuckles, slingshot, or other weapon or firearm.

525.02
(a) No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies:
(12) The statement is made in connection with the purchase of a firearm , as defined in Ohio R.C. 2923.11, and in conjunction with the furnishing to the seller of the firearm of a fictitious or altered driver's or commercial driver's license or permit, a fictitious or altered identification card, or any other document that contains false information about the purchaser's identity.
(b) No person, in connection with the purchase of a firearm as defined in Ohio R.C. 2923.11, shall knowingly furnish to the seller of the firearm a fictitious or altered driver's or commercial driver's license or permit, a fictitious or altered identification card, or any other document that contains false information about the purchaser's identity.
(3) Whoever violates division (a)(12) or (b) of this section is guilty of falsification to purchase a firearm , a felony to be prosecuted under appropriate State law.

549.04 IMPROPERLY HANDLING FIREARMS IN A MOTOR VEHICLE.
(b) No person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.
other parts of 549 look out of whack, too...

E-Mail to council and the Mayor:
Sirs and Madams,

The following Sections of the New Albany Codified Ordinances are in violation of State Law:

140.16 FIREWORKS, FIREARMS, AND WEAPONS.
(a) No person, other than law enforcement officials, shall carry a firearm of any description, air or gas gun, a bow, crossbow or any other missile throwing device within a park, or discharge any firearms, explosive substances, or air or gas guns into or over a park, or bring into a park any pistol, switchblade or hunting knife, dagger, metal knuckles, slingshot, or other weapon or firearm.

525.02
(a) No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies:
(12) The statement is made in connection with the purchase of a firearm , as defined in Ohio R.C. 2923.11, and in conjunction with the furnishing to the seller of the firearm of a fictitious or altered driver's or commercial driver's license or permit, a fictitious or altered identification card, or any other document that contains false information about the purchaser's identity.
(b) No person, in connection with the purchase of a firearm as defined in Ohio R.C. 2923.11, shall knowingly furnish to the seller of the firearm a fictitious or altered driver's or commercial driver's license or permit, a fictitious or altered identification card, or any other document that contains false information about the purchaser's identity.
(3) Whoever violates division (a)(12) or (b) of this section is guilty of falsification to purchase a firearm , a felony to be prosecuted under appropriate State law.

549.04 IMPROPERLY HANDLING FIREARMS IN A MOTOR VEHICLE.
(b) No person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.

Other sections of 549 are also out of line with State Law.

Please let me know when these items will be on the Council's Agenda for rectification.


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cashman966
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Re: New Albany laws...

Post by cashman966 »

Actually 525.02 is not in violation of 9.68, it parrots parts of ORC 2921.13 and specifically states a violation is of, and prosecutable under, State law, not the municipal code. The others are clearly in conflict of 9.68
Ignorant or Stupid, I'm not sure which is worse. If someone were stupid, at least they'd have an excuse for all the dumb things they say.

Pass the Peace Pipe I need another hit

IANAL and neither are most people on this board, its just shows more with some than others.
BriKuz
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Re: New Albany laws...

Post by BriKuz »

cashman966 wrote:Actually 525.02 is not in violation of 9.68, it parrots parts of ORC 2921.13 and specifically states a violation is of, and prosecutable under, State law, not the municipal code. The others are clearly in conflict of 9.68
Mirroring a state law is also prohibited under 9.68, IMHO... it says no sub may make a law, not no sub may make a law that doesn't mirror state law
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Re: New Albany laws...

Post by concreteguy »

Just another reason to stay off of 161 and stay on Rt. 37 :o .
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cashman966
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Re: New Albany laws...

Post by cashman966 »

BriKuz wrote:
cashman966 wrote:Actually 525.02 is not in violation of 9.68, it parrots parts of ORC 2921.13 and specifically states a violation is of, and prosecutable under, State law, not the municipal code. The others are clearly in conflict of 9.68
Mirroring a state law is also prohibited under 9.68, IMHO... it says no sub may make a law, not no sub may make a law that doesn't mirror state law
I just read it twice and I can't find where it prohibits mirroring state law. It says:
Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.
A local ordinance that mirrors State law does not require or submit a person to further license, permission, restriction, delay, or process.

As written, this ordinance doesn't even provide for a charge under it. It is more of an informational code. "Don't do this or you will be charged under applicable state law with a felony" Felony is another dead give away. Penalties for violations of municipal code do not rise above misdemeanor status.
Ignorant or Stupid, I'm not sure which is worse. If someone were stupid, at least they'd have an excuse for all the dumb things they say.

Pass the Peace Pipe I need another hit

IANAL and neither are most people on this board, its just shows more with some than others.
BriKuz
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Re: New Albany laws...

Post by BriKuz »

cashman966 wrote:
BriKuz wrote:
cashman966 wrote:Actually 525.02 is not in violation of 9.68, it parrots parts of ORC 2921.13 and specifically states a violation is of, and prosecutable under, State law, not the municipal code. The others are clearly in conflict of 9.68
Mirroring a state law is also prohibited under 9.68, IMHO... it says no sub may make a law, not no sub may make a law that doesn't mirror state law
I just read it twice and I can't find where it prohibits mirroring state law. It says:
Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.
A local ordinance that mirrors State law does not require or submit a person to further license, permission, restriction, delay, or process.

As written, this ordinance doesn't even provide for a charge under it. It is more of an informational code. "Don't do this or you will be charged under applicable state law with a felony" Felony is another dead give away. Penalties for violations of municipal code do not rise above misdemeanor status.
Ohio v Clyde: The General Assembly went even further, however, providing in
an uncodified portion of H.B. 12 that “[n]o municipal corporation may adopt or
continue in existence any ordinance * * * that attempts to restrict the places where
a person possessing a valid license to carry a concealed handgun may carry a
handgun concealed.” H.B. 12, Section 9, 150 Ohio Laws, Part II, 3390.

{¶ 21} The court of appeals used R.C. 9.68 to distinguish Beatty, which
had been decided prior to the legislature’s enactment of H.B. 347. R.C. 9.68(A),
the court reasoned, “indicates the Ohio Legislature’s clear intent that the
concealed carry laws have general and uniform operation throughout Ohio.”
Ohioans for Concealed Carry Inc. v. Clyde, Sandusky App. Nos. S-06-039 and S-
06-040, 2007-Ohio-1733, ¶ 12. Because R.C. 9.68(A) precluded any law other
than state or federal law from infringing on the right to carry arms, the law
preempted Clyde Ordinance 2004-41. In accordance with its analysis, the
appellate court reversed the judgment of the trial court and remanded the matter
for entry of summary judgment in favor of Ohioans for Concealed Carry. Id. at ¶
12-13.

My interpretation is that even a law which mirrors state law (attempting to give a local municipality the ability to charge under a local ordinance, hence keep the fines for themselves) is still violating the Ohio Supreme Court's interpretation of RC 9.68
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Re: New Albany laws...

Post by MyWifeSaidYes »

Somewhere in the ORC, I recently ran across a section that permitted local ordinances to adopt misdemeanor state laws, but I can't find it now.

If that IS in state law, then local versions do not violate 9.68. I am one that believed it would.

Regardless, those aren't the laws to go after, IMHO. There is nothing to stop the municipality from charging you with the appropriate state-level charge.

Having said that, there HAVE been changes in state laws that the "mirrored" versions may or may not reflect. The definition of "unloaded" is one such change. Those updates should be pursued.
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cashman966
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Re: New Albany laws...

Post by cashman966 »

BriKuz, we will have to agree to disagree on that point. I do agree with MWSY that mirror laws are a non issue unless they are not kept current with the corresponding state statute. When they are not updated, IMHO, is when they fall into conflict with 9.68

That said, it still does not change the fact that 525.02 does not create a local law, it only states that someone who engages in the stated behavior will be charged under applicable state law.
Ignorant or Stupid, I'm not sure which is worse. If someone were stupid, at least they'd have an excuse for all the dumb things they say.

Pass the Peace Pipe I need another hit

IANAL and neither are most people on this board, its just shows more with some than others.
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cashman966
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Re: New Albany laws...

Post by cashman966 »

MyWifeSaidYes wrote:Somewhere in the ORC, I recently ran across a section that permitted local ordinances to adopt misdemeanor state laws, but I can't find it now.

If that IS in state law, then local versions do not violate 9.68. I am one that believed it would.

Regardless, those aren't the laws to go after, IMHO. There is nothing to stop the municipality from charging you with the appropriate state-level charge.

Having said that, there HAVE been changes in state laws that the "mirrored" versions may or may not reflect. The definition of "unloaded" is one such change. Those updates should be pursued.

It is in the Constitution.
§ 18.03 Powers
Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.
Municipal ordinance that mirror offenses as outlined under general laws in the ORC, laws regarding firearms in this case, are not in conflict with those general laws.

Clyde was found to be in violation because it's ordinance did not mirror a state law regarding the carry of firearms.
Ignorant or Stupid, I'm not sure which is worse. If someone were stupid, at least they'd have an excuse for all the dumb things they say.

Pass the Peace Pipe I need another hit

IANAL and neither are most people on this board, its just shows more with some than others.
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cashman966
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Re: New Albany laws...

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Here is a great write up on home rule and general laws by the Legislative Service Commission

Municipal Home Rule

Three-step analytical framework

The Ohio Supreme Court has set forth a three-step home rule analysis concerning many of the concepts addressed thus far. The first step is to determine whether the local ordinance is an exercise of local self-government or an exercise of local police power. If the ordinance relates solely to Municipal Home Rule matters of local self-government, the analysis ends because the Ohio Constitution authorizes a municipal corporation to exercise all powers of local self-government within its jurisdiction.

The second step applies only if the ordinance involves an exercise of police power. This step requires a determination of whether the statute at issue is a general law under the four- part test announced in 2002 in Canton v. State. If the statute is a general law, the local ordinance must give way if it conflicts with the general law.

The final step is to determine whether the ordinance conflicts with the statute, i.e., whether the ordinance permits or licenses that which the statute forbids, and vice versa. If the ordinance conflicts with the general law, it will be held unconstitutional. If there is no conflict, the municipal action is permissible even though the statute is a general law. Thus, concurrent exercise of state and local police power is permissible.
Ignorant or Stupid, I'm not sure which is worse. If someone were stupid, at least they'd have an excuse for all the dumb things they say.

Pass the Peace Pipe I need another hit

IANAL and neither are most people on this board, its just shows more with some than others.
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Re: New Albany laws...

Post by MyWifeSaidYes »

If the ordinance conflicts with the general law, it will be held unconstitutional. If there is no conflict, the municipal action is permissible even though the statute is a general law. Thus, concurrent exercise of state and local police power is permissible.


THIS is why the USE of firearms is not mentioned in 9.68. That allows cities to still have ordinances against using or discharging firearms.
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Re: New Albany laws...

Post by BriKuz »

http://www.newalbanyohio.org/government ... nd-minutes" onclick="window.open(this.href);return false;

They mentioned it at the council meeting last night... (See the Mar 4 link)

Got a request for comment from a local paper... "Can you explain why this is important to you?"
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Re: New Albany laws...

Post by BriKuz »

http://www.thisweeknews.com/content/sto ... parks.html

It seems that the New Albany council is considering the matter, though they don't seem to get the updates to 2923.16. Shouldn't have started the other thread... forgot this one was here...
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Re: New Albany laws...

Post by sd790 »

Nicely detailed comment on the article, BriKuz.
There are some inaccuracies in this article: "New Albany's amendment would not apply to gun owners without a concealed-carry permit, who must transport firearms unloaded, which means the gun has no ammunition in the chamber and no loaded magazines or speed loaders inserted into it, according to section 2923.16 of the Ohio Revised Code." This is incorrect... the current wording of this law allows a person without a Licence to carry a concealed handgun to store both a loaded magazine and a weapon with NO rounds INSIDE it right next to the driver, as long as the handgun and magazine/speedloader are located in SEPARATE compartments which can be sealed with a button, snap, zipper, etc. see http://codes.ohio.gov/orc/2923.16" onclick="window.open(this.href);return false; "The amendment would remove the words firearm or firearms from several sections, thus allowing people with concealed-handgun licenses to carry in city parks, as they are permitted to do by state law." This is also incorrect: A person may open carry a firearm in Ohio WITHOUT a license. This is also protected by RC 9.68. Should read: "The amendment would remove the words firearm or firearms from several sections, thus allowing people to carry in city parks, as they are permitted to do by state law."
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