Relief from Disability: Trial Court Has Broad Discretion

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Werz
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Relief from Disability: Trial Court Has Broad Discretion

Post by Werz »

Something I came across while doing some legal research on other matters:

State v. Lerch, 2016-Ohio-2791

Here's the short version. Lerch was not under disability under Ohio law, but he had one felony Passing Bad Checks which placed him under disability under federal law. The trial court denied his petition for relief from disability. The court of appeals confirmed that he could obtain relief from federal disability by seeking relief under R.C. 2923.14, but the court upheld the denial of Lerch's petition. Lerch claimed that it was an abuse of discretion for the trial court to deny his petition because he had only one non-violent felony offense, and because he had led a law-abiding life in recent years and had introduce the testimony of a psychiatrist that he did not present a future risk of violent crime. However, the court of appeals noted that "Lerch has a lengthy prior criminal history from 1992 through 2004, including multiple charges of passing bad checks and theft, as well as several charges that involve criminal offenses based on violence, e.g., disorderly conduct from bar fights." That was enough for the court of appeals to hold that "[t]he trial court did not abuse its considerable discretion by denying Lerch’s R.C. 2923.14 application for relief from statutory disability to possess a firearm."
"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.
odskaggs2
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Re: Relief from Disability: Trial Court Has Broad Discretion

Post by odskaggs2 »

I wonder if he is under disability at all ? If his rights have been restored by process of law in Ohio then I believe the feds look at that and also remove the federal disability . The irony is good luck getting any one in the legal field to acknowledge that no disability exists.
I have a non violent and non drug felony conviction on my record. The FBI has my criminal record and fingerprints and has also issued me a UPIN number because of delays during purchase. I'm willing to bet I would get denied a rights restoration as well by the same court. I can't cite the case but remember seeing rights restoration denial because the court didn't have the authority to restore for a non violent and or non drug offense.
odskaggs2
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Re: Relief from Disability: Trial Court Has Broad Discretion

Post by odskaggs2 »

Sorry I don't know how to quote court cases. But in re: application of Douglas Wells CASE NO. 2014-L-040 the court states what I was trying to say. He can have a firearm with a Non violent and non drug felony but he can't have a concealed carry permit. Just my 2 cents worth.
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Werz
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Re: Relief from Disability: Trial Court Has Broad Discretion

Post by Werz »

odskaggs2 wrote:Sorry I don't know how to quote court cases. But in re: application of Douglas Wells CASE NO. 2014-L-040 the court states what I was trying to say. He can have a firearm with a Non violent and non drug felony but he can't have a concealed carry permit. Just my 2 cents worth.
I'm not sure what your point is, but if you read the two cases together, here is what you get:
  • Regarding In re Application of Wells, 2015-Ohio-2606, the applicant wanted relief from disability pursuant to R.C. 2923.14 so that he could obtain a concealed handgun license. Federal disability under 18 U.S.C. §922(g)(1) was never considered in the court's opinion; his concern was to get a relief from disability created by a non-drug, non-violent felony because that felony could still preclude him from obtaining a concealed handgun license. [See R.C. 2923.125(D)(1)(e).] The majority of the court held that Wells could not be relieved from disability for any offense not included under R.C. 2923.13, and thus could not be relieved from disability for a non-drug, non-violent felony.
  • The dissent in Wells was written by Colleen Mary O'Toole, a strong supporter of the Second Amendment. She noted that relief from disability pursuant to R.C. 2923.14 could be granted to "any person who is prohibited from acquiring, having, carrying, or using firearms," not just those prohibited from all of those acts under R.C. 2923.13. Unfortunately, that is still a minority view.
  • State v. Lerch, 2016-Ohio-2791, on other hand, deals specifically with federal disability under 18 U.S.C. §922(g)(1). That case held that relief from disability pursuant to R.C. 2923.14 can be used to relieve someone from federal disability, which includes non-drug, non-violent felonies, even though such felonies are not included in Ohio disability pursuant to R.C. 2923.13. That specific issue was never addressed in Wells.
  • However, Lerch also held that, even though a person has only one non-drug, non-violent felony, the trial court still has the discretion to deny a petition pursuant to R.C. 2923.14 if the court has other reasons to believe that the person may constitute a risk of unlawful activity in the future.
  • I have no idea what your circumstances are and why the FBI is willing to consider you relieved from federal disability. I do know that 18 U.S.C. §922(g)(1) still states that "t shall be unlawful for any person *** who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year *** to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." And I know that there are those who have used R.C. 2923.14 to be relieved from that disability.
"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.
odskaggs2
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Joined: Tue Oct 22, 2013 8:32 pm

Re: Relief from Disability: Trial Court Has Broad Discretion

Post by odskaggs2 »

"Lerch claimed that he wanted the application to be granted so that: (1) he may obtain a concealed handgun license, (2) he is fully restored to all the rights of any other citizen, and (3)he is able to possess firearms under federal law for purposes of self-protection, tradition, and recreation"
What I was pointing out is that Lerch did not need relief for goals 2 and 3 above. Ohio’s automatic restoration of civil rights via, R.C. § 2961.01 and R.C. § 2967.16(C)(1) work to invoke 18 U.S.C. § 921(a)(20) to make the federal prohibitions listed in 18 U.S.C. § 922(g)(1) non applicable.
The only reason I chimed in is because I would be in the same boat as Lerch if I applied for relief under R.C. 2923.14. The end result is I can purchase and own firearms legally but I cannot get a concealed handgun license. I'll leave the law to the experts. However, when you have almost 30 years experience with just a few laws it is possible to learn a little.
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