Gov't bldg. open carry theory

[MyWifeSaidYes]

Might be in your line of thinking.....??
http://ohioccwforums.org/viewtopic.php?f=21&t=56521" onclick="window.open(this.href);return false;

Sounds right. Also sounds like charben chased off that poster (jmelvin).

[MyWifeSaidYes]

I have been through this analysis with MyWifeSaidYes and certain other well-known naysayers, both here and in other open-carry forums. I have gleaned a few things from those encounters:

1. None of them have the cojones to test their novel legal theory, at least not alone.
2. Not only is there a risk of a Criminal Trespass charge, but there also exists a risk that they will be confronted by police officers with drawn firearms, particularly if multiple open-carriers are involved. A dangerous situation, indeed. And I think they know that.
3. If they are arrested for Criminal Trespass, there is a strong likelihood of a conviction which would be upheld on appeal. Not only bad for them, but also not very good for the rest of us who are trying to favorably prompt public opinion. Most folks are not rabid ideologues who want to rely on novel legal interpretations. Most folks will think, "The sign plainly said no deadly weapons in the building, and it was right there on the door, in plain sight! What the hell is wrong with these people?!"

Okay, remember what I said at the top of my original post here...INTELLECTUAL EXERCISE. This thread is NOT trying to get someone to be the guinea pig.

As to Werz's list,

I have the cojones (although SheWhoSaidYes may remove those when I get out of jail). What I lack is funding.

An armed response IS a possibility, but is MORE likely in northeastern and southwestern Ohio, IMHO.

What most folks think? What the heck does that have to do with anything at this point. What's wrong with these people is that some of them think those signs are misleading and should be changed.

"The sign plainly said" ...whites only. ...no blacks. ...no jews. ...etc, etc. "and it was right there on the door, in plain sight! What the hell is wrong with these people?!"

I don't know. Maybe they wanted things to change for the better.

[MyWifeSaidYes]

...Most folks are not rabid ideologues who want to rely on novel legal interpretations.

What's interesting to me is that someone else had the same 'novel' interpretation back in 2011.

[JediSkipdogg]

My problem is how are they not authorized? ...

9.68 says, in essence, no restrictions on carry unless it's a state law.

From my reading on the topic here and on other boards, we open carriers believe open carry to be legal simply because there are no laws against it.

That means, to me, that there must be a law in place that restricts the right to bear arms before such a restriction can be enforced.

2923.1212 is a law to post a sign, aimed at public entities. It is not a law restricting carry, aimed at citizens.

Let me restate that...2923.1212 is an instruction to post a sign. It does not criminalize ANY carry. It does not even criminalize failure to post the sign. It simply enables a legal standing for those who do post those signs.

That sign advises building visitors that they may not carry into the building, but there is no law that gives power to the public entity to restrict open carry, let alone the sign.

You will agree that 2923.1212 AND 2911.21 are both state laws correct? Doesn't matter if there's a criminal violation or not, they are both state laws. Therefore I say 9.68 doesn't even come into play.

2911.21 says...

(A) No person, without privilege to do so, shall do any of the following: (4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified by signage posted in a conspicuous place or otherwise being notified to do so by the owner or occupant, or the agent or servant of either.

Do you have privelege to violate the posted sign? If you say yes, where do you get that privelege from?

Therefore I say the answer is no. So, are you on the land or premises of another?

I say yes you are, you are on the land of a government entity. Have you negligently failed to leave upon being notified by signage postage in a conspicuous place (ie front door) by the owner (ie the government)?

I say yes you have.

Now, I see cashman966 brought up 2923.126. I see that section as a pointless piece of the law. With OR without it, you are still violating criminal trespass as pointed out above. When you write up the complaint for arrest, I doubt one would even really include any verbage from 2923.126 in their complaint. They would simply use the wording as I underlined above.

[Werz]

I can't find a law to charge someone under for openly carrying in an enumerated government building other than schools, courts and state corrections facilities which are covered under separate codes.

For a criminal trespass charge for open carry in a government posted building (not including those covered under seperate codes) to stick, a prosecutor would have to argue that even though 2923.126(C)(3)(a) equates a no guns sign to a no trespassing sign only when it is posted by a private entity, that the statute should grant the same status to a government sign posted pursuant to a statute requiring a sign to prohibit concealed handguns, when the handgun is carried openly.

The fallacy here comes from a failure to "think outside the box." Criminal Trespass under R.C. 2921.11 exists as an independent criminal statute and a state law. It does not need the permissive provision of R.C. 2923.126(C)(3)(a), which refers private property owners to R.C. 2911.21(A)(4), in order to set forth the elements of a criminal offense.
For instance, look at R.C. 2911.21(A)(2):

No person, without privilege to do so, shall ... [k]nowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the offender knows the offender is in violation of any such restriction or is reckless in that regard[.]

The mode is unarmed, and the lawful restriction is set forth by the statutorily mandated signage. R.C. 2923.1212(A). As previously stated, that provision does not need the permissive reference set forth in R.C. 2923.126(C)(3)(a) in order to be valid, nor does that permissive reference limit the application of the Criminal Trespass statute to private property owners, as evidenced by R.C. 2911.21(B):

It is no defense to a charge under this section that the land or premises involved was owned, controlled, or in custody of a public agency.

If the signage is posted pursuant to R.C. 2923.1212(A), and if the person "who has charge of a building that is a government facility of this state or the political subdivision of this state" decides to prosecute, you could be charged with and convicted of Criminal Trespass.

[Werz]

What most folks think? What the heck does that have to do with anything at this point.

Because those folks will be the ones sitting on your jury, should you decide to engage in such a social experiment.

"The sign plainly said" ...whites only. ...no blacks. ...no jews. ...etc, etc. "and it was right there on the door, in plain sight! What the hell is wrong with these people?!"

I am not aware of any statutorily mandated signage, analogous to that prescribed by R.C. 2923.1212(A), which prohibits Jews and African-Americans in government buildings. Have you been hanging out in the Stormfront.org forums?

[evan price]

"The sign plainly said" ...whites only. ...no blacks. ...no jews. ...etc, etc. "and it was right there on the door, in plain sight! What the hell is wrong with these people?!"

I am not aware of any statutorily mandated signage, analogous to that prescribed by R.C. 2923.1212(A), which prohibits Jews and African-Americans in government buildings. Have you been hanging out in the Stormfront.org forums?

White, black, jew- these are all federally defined and protected classes that it is illegal to discriminate against by federal law, to wit, the Civil Rights Act of 1964.
To date there is no such law for gun carriers (despite the Constitution).

[techguy85]

Actually the criminal trespass charge only applies to private property or public property under the control of a private party.
...
For a criminal trespass charge for open carry in a government posted building (not including those covered under seperate codes) to stick, a prosecutor would have to argue that even though 2923.126(C)(3)(a) equates a no guns sign to a no trespassing sign only when it is posted by a private entity, that the statute should grant the same status to a government sign posted pursuant to a statute requiring a sign to prohibit concealed handguns, when the handgun is carried openly.

However the trespass statute itself makes no such distinction. And in fact states in division (B)
(B) It is no defense to a charge under this section that the land or premises involved was owned, controlled, or in custody of a public agency.

[JediSkipdogg]

Actually the criminal trespass charge only applies to private property or public property under the control of a private party.
...
For a criminal trespass charge for open carry in a government posted building (not including those covered under seperate codes) to stick, a prosecutor would have to argue that even though 2923.126(C)(3)(a) equates a no guns sign to a no trespassing sign only when it is posted by a private entity, that the statute should grant the same status to a government sign posted pursuant to a statute requiring a sign to prohibit concealed handguns, when the handgun is carried openly.

However the trespass statute itself makes no such distinction. And in fact states in division (B)
(B) It is no defense to a charge under this section that the land or premises involved was owned, controlled, or in custody of a public agency.

I think it's funny too many think one needs 2923.126(C)(3)(a) to be guilty of anything. 2923.126(C)(3)(a) has no penalty section associated with it and is actually not a violation. It simply reinforces and directs one to 2911.21. I personally see no purpose in what 2923.126(C)(3)(a) does besides give the exemption of civil trespass on a parking lot/structure.

[techguy85]

However the trespass statute itself makes no such distinction. And in fact states in division (B)
(B) It is no defense to a charge under this section that the land or premises involved was owned, controlled, or in custody of a public agency.

I think it's funny too many think one needs 2923.126(C)(3)(a) to be guilty of anything. 2923.126(C)(3)(a) has no penalty section associated with it and is actually not a violation. It simply reinforces and directs one to 2911.21. I personally see no purpose in what 2923.126(C)(3)(a) does besides give the exemption of civil trespass on a parking lot/structure.

They get caught up in thinking that 2923.126 (c) (3) (a) restricts the application of that law anything when it really doesn't. The underlying statute is what is at issue there.
However I do see why the General Assembly put it in the Concealed Carry Statute, They wanted to make clear that knowingly violating a sign was indeed a violation of the law. I'm actually kind of happy they didn't create a CCW violation specifically for it because I bet it would be an F5 or something nutty like that.

[MyWifeSaidYes]

2923.1212 sets out, as law, the requirement to post a sign.

The wording on that sign is NOT explicitly defined, as indicated by the phrase "a sign that contains a statement in substantially the following form".

The Final Bill Analysis of Am. Sub. HB 12 of the 125th General Assembly of Ohio, found here, states the following:

"Posting of signs in specified areas · Requires specified persons, boards, and entities with control over certain locations at which a licensee with a standard license or temporary emergency license to carry a concealed handgun is not authorized to carry a concealed handgun, to post warnings to that effect."

This seems to indicate the legislative intent of the General Assembly was NOT to restrict openly carried firearms.

Any attempt at a roundabout restriction on open carry would not only violate R.C. 9.68, but would be an unconstitutional infringement on our rights, as inferred from the opinions of the Supreme Court of Ohio in Klein v. Leis.

Regarding the version of R.C. 2923.12 in effect at the time, the Court stated, "the state correctly asserts that the statute leaves open the ability to bear arms by openly carrying a firearm". If this is the belief of the Court, how could they abide the perceived restriction on YOUR RIGHT to open carry by a statute that says to post a sign?

So, I get privilege from the Ohio Constitution, the Supreme Court of Ohio and R.C. 9.68.

[Werz]

2923.1212 sets out, as law, the requirement to post a sign.

The wording on that sign is NOT explicitly defined, as indicated by the phrase "a sign that contains a statement in substantially the following form".

The Final Bill Analysis of Am. Sub. HB 12 of the 125th General Assembly of Ohio, found here, states the following:

"Posting of signs in specified areas · Requires specified persons, boards, and entities with control over certain locations at which a licensee with a standard license or temporary emergency license to carry a concealed handgun is not authorized to carry a concealed handgun, to post warnings to that effect."

This seems to indicate the legislative intent of the General Assembly was NOT to restrict openly carried firearms.

Any attempt at a roundabout restriction on open carry would not only violate R.C. 9.68, but would be an unconstitutional infringement on our rights, as inferred from the opinions of the Supreme Court of Ohio in Klein v. Leis.

Regarding the version of R.C. 2923.12 in effect at the time, the Court stated, "the state correctly asserts that the statute leaves open the ability to bear arms by openly carrying a firearm". If this is the belief of the Court, how could they abide the perceived restriction on YOUR RIGHT to open carry by a statute that says to post a sign?

So, I get privilege from the Ohio Constitution, the Supreme Court of Ohio and R.C. 9.68.

If you're going to cite legislative commentary and dissenting opinions as controlling authority, you have a whole lot to learn about appellate jurisprudence. Weak, dude. Seriously weak.

[Werz]

However the trespass statute itself makes no such distinction. And in fact states in division (B)
(B) It is no defense to a charge under this section that the land or premises involved was owned, controlled, or in custody of a public agency.

I think it's funny too many think one needs 2923.126(C)(3)(a) to be guilty of anything. 2923.126(C)(3)(a) has no penalty section associated with it and is actually not a violation. It simply reinforces and directs one to 2911.21. I personally see no purpose in what 2923.126(C)(3)(a) does besides give the exemption of civil trespass on a parking lot/structure.

They get caught up in thinking that 2923.126 (c) (3) (a) restricts the application of that law anything when it really doesn't. The underlying statute is what is at issue there.
However I do see why the General Assembly put it in the Concealed Carry Statute, They wanted to make clear that knowingly violating a sign was indeed a violation of the law. I'm actually kind of happy they didn't create a CCW violation specifically for it because I bet it would be an F5 or something nutty like that.

That is exactly why they did it. And you'll probably find that many police officers assume that the violation is a lot more serious than M4 Criminal Trespass.

[MyWifeSaidYes]

But that's regarding concealed carry, not open carry.

[JediSkipdogg]

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.