OFCC agenda for the 133 GA

[DontTreadOnMe]

State v. McMechan (1988), 48 Ohio App. 3d 261 has stood firm for 30 years now and states some form of communication is necessary to guarantee a conviction of criminal trespass. It further states one is not required to go looking for signs. Nothing has overturned that decision. So not sure what case law you have seen on people being arrested for trespass without some form of warning.

I don't believe that case is saying what you're understanding it to say.

We find the trial court painted with too broad a brush when it imposed a duty upon appellant, who was not aware of any limits on use, to search the area for signs imposing restrictions. We believe the better-reasoned approach lies in imposing the duty to communicate restrictions on the use of a particular parcel of land or a particular building to its owner or occupier.

Since there is no showing in the record that appellant's point of entry into Pfeffer Park contained some form of communication of the restrictions upon its use, we find appellant's second argument to have merit and, accordingly, we sustain his single assignment of error.

https://casetext.com/case/state-v-mcmechan

McMechan's conviction was overturned because the arresting officer admitted in court testimony that "he was unsure of exactly where appellant entered the park or whether there was a warning sign at that point." but the trial court ruled he had a duty to "go to the gates after having proceeded into the park on a beaten path to find exactly what the posted hours were." That's what the decision meant when it says there isn't a duty to go looking for signs.

However it also explicitly said that signage at an entrance constitutes notification:

Adequate warnings of land or premises use restrictions can be communicated actually or constructively — that is, through the use of physical barriers such as barricades, barriers, fences and locks which actually limit or bar access, or by signs at the entrance to the land or premises which inform the user, i.e., act as constructive notice, of the restrictions which exist.

[schmieg]

Over the years, and the framers of the Constitution even understood the difference between private and public property. And private includes property open to the general public. Over the years we have slowly destroyed the right of what a private business may do and allow on their own property. Heck, we are forcing Christian ministers to marry gays and bakera to bake cakes with themes they do not support. While the framers did guarantee the right to allow then people to protect themselves, they held the right of a private business to decide what to do as much greater. We need to stop destroying that right./quote]
That is simply not true. If it were true, there would have been a constitutional provision that states the right of a person to control others' on the property of his business shall not be infringed.

Don't confuse Constitutional protections of rights with the existence of rights. And reference your earlier post, the trespass laws impose no restrictions on free speech or any other rights, enumerated or not. The property owner determines who may enter or remain on his property, not the state, so there is no governmental restriction. People may deny you free speech on their property and you have no rights in regard to their property, only the license they may give you.

[JN01]

Also, I think the point he was trying to make is that trespassing with a firearm is an automatic violation whereas the t shirt situation is only a violation if the person refuses to leave once told to leave, and why is the second amendment relegated to a lower status than even an offensive t shirt--making wearing an offensive t shirt a more important right that a right that the Supreme Court has classified as an enumerated fundamental right.

Where is the firearm an automatic violation? And the t-shirt not? The firearm requires the officer to have evidence of your knowledge about the sign. No difference than being told to not wear an AC/DC shirt. Case law is pretty firm on trespass and having knowledge the person would be violating a sign.

Liberty is correct on my intended meaning.

Carrying a gun in a posted area is an automatic violation by state law:
ORC 2923.126(C)(3)(a) Except as provided in division (C)(3)(b) of this section, the owner or person in control of private land or premises, and a private person or entity leasing land or premises owned by the state, the United States, or a political subdivision of the state or the United States, may post a sign in a conspicuous location on that land or on those premises prohibiting persons from carrying firearms or concealed firearms on or onto that land or those premises. Except as otherwise provided in this division, a person who knowingly violates a posted prohibition of that nature is guilty of criminal trespass in violation of division (A)(4) of section 2911.21 of the Revised Code and is guilty of a misdemeanor of the fourth degree.

Entering a church armed without permission is a felony, whether it is posted or not.

I may be wrong, but I'm not aware of any specific business rules being codified as criminal violations- they may be able to restrict anything they want to (as long as it isn't related to protected classes) but violating those rules doesn't become a crime until the violator refuses to leave the premises.

[schmieg]

Also, I think the point he was trying to make is that trespassing with a firearm is an automatic violation whereas the t shirt situation is only a violation if the person refuses to leave once told to leave, and why is the second amendment relegated to a lower status than even an offensive t shirt--making wearing an offensive t shirt a more important right that a right that the Supreme Court has classified as an enumerated fundamental right.

Where is the firearm an automatic violation? And the t-shirt not? The firearm requires the officer to have evidence of your knowledge about the sign. No difference than being told to not wear an AC/DC shirt. Case law is pretty firm on trespass and having knowledge the person would be violating a sign.

Liberty is correct on my intended meaning.

Carrying a gun in a posted area is an automatic violation by state law:
ORC 2923.126(C)(3)(a) Except as provided in division (C)(3)(b) of this section, the owner or person in control of private land or premises, and a private person or entity leasing land or premises owned by the state, the United States, or a political subdivision of the state or the United States, may post a sign in a conspicuous location on that land or on those premises prohibiting persons from carrying firearms or concealed firearms on or onto that land or those premises. Except as otherwise provided in this division, a person who knowingly violates a posted prohibition of that nature is guilty of criminal trespass in violation of division (A)(4) of section 2911.21 of the Revised Code and is guilty of a misdemeanor of the fourth degree.

Entering a church armed without permission is a felony, whether it is posted or not.

I may be wrong, but I'm not aware of any specific business rules being codified as criminal violations- they may be able to restrict anything they want to (as long as it isn't related to protected classes) but violating those rules doesn't become a crime until the violator refuses to leave the premises.

Sort of, but not quite. The statute requires you to enter the posted area knowingly so the state must prove you knew the sign was there. If there is security video that shows you going to the door and examining all the signs present and then entering, the state might have a pretty good case, but the police usually want the person to be informed and asked to leave as that makes the case easy if he fails to do so.

Statutory CPZ's are a bit different since they don't have the knowing mens rea requirement.

[Liberty]

The statute requires you to enter the posted area knowingly so the state must prove you knew the sign was there. If there is security video that shows you going to the door and examining all the signs present and then entering, the state might have a pretty good case, but the police usually want the person to be informed and asked to leave as that makes the case easy if he fails to do so.

That might be true where you live, but not in places like Cleveland. If a business is posted anywhere, and CPD catches someone carrying, they will run the person through the system even if they know they could lose the case. Punishment by process.

But the point here is that there is no statute that says if someone ignores the dress code of a business that it, in and of itself, constitutes a crime. The business owner or his/her representative must first ask or tell the violator to leave, and the violator must refuse to leave in order for a crime to have been committed. Entering a business that prohibits firearms when the person carrying a firearm knows the policy, in and of itself, constitutes a crime.

Additionally, businesses cannot prohibit another person from entering their property because they are a member of a constitutionally protected class like race or religion, but Ohio has made it a crime for someone to enter a business armed just because the owner of the business disagrees with the constitutional provision that protects the right (with the strongest language--shall not be infringed) of that person to be armed. The second amendment does not say that Congress shall not infringe or the states shall not infringe. It says the right shall not be infringed--meaning by anyone. The framers wrote about this and very boldly said that free men should not be disarmed; disarming takes place upon arrest. Criminal prosecution is the constitutional method of protecting society from violence.

That is why I thought HB 233 was a good compromise. It would still be unconstitutional pursuant to McDonald vs. Chicago, 561 U.S. 742 (2010) (Second amendment cannot be relegated as a second class right--meaning it must have equal protection as free speech and being in a protected class), but better than it currently is. We would at least have as many rights as the dress code violator, but not as many as the minority.

[djthomas]

That might be true where you live, but not in places like Cleveland. If a business is posted anywhere, and CPD catches someone carrying, they will run the person through the system even if they know they could lose the case. Punishment by process.

Is this from actual, recent experience or conjecture? Because in my experience knowing guys on the job at CPD if you call to report someone trespassing in your business who is not threatening people you might get a police response in 2-3 hours. If they're actively threatening someone that may cut it down to 30 minutes. Shots fired or physically assaulting someone will knock it down to 10 or less. They're simply that busy with real calls that matter and that understaffed to give two flips about some private CPZ.

In recent years the only time I've heard of CPD giving CHL'ers a hard time is when the CHLer unnecessarily notifies the officer that they are not carrying. This is often given a "why in the **** not???" response.

[schmieg]

The statute requires you to enter the posted area knowingly so the state must prove you knew the sign was there. If there is security video that shows you going to the door and examining all the signs present and then entering, the state might have a pretty good case, but the police usually want the person to be informed and asked to leave as that makes the case easy if he fails to do so.

That might be true where you live, but not in places like Cleveland. If a business is posted anywhere, and CPD catches someone carrying, they will run the person through the system even if they know they could lose the case. Punishment by process.

But the point here is that there is no statute that says if someone ignores the dress code of a business that it, in and of itself, constitutes a crime. The business owner or his/her representative must first ask or tell the violator to leave, and the violator must refuse to leave in order for a crime to have been committed. Entering a business that prohibits firearms when the person carrying a firearm knows the policy, in and of itself, constitutes a crime.

Additionally, businesses cannot prohibit another person from entering their property because they are a member of a constitutionally protected class like race or religion, but Ohio has made it a crime for someone to enter a business armed just because the owner of the business disagrees with the constitutional provision that protects the right (with the strongest language--shall not be infringed) of that person to be armed. The second amendment does not say that Congress shall not infringe or the states shall not infringe. It says the right shall not be infringed--meaning by anyone. The framers wrote about this and very boldly said that free men should not be disarmed; disarming takes place upon arrest. Criminal prosecution is the constitutional method of protecting society from violence.

That is why I thought HB 233 was a good compromise. It would still be unconstitutional pursuant to McDonald vs. Chicago, 561 U.S. 742 (2010) (Second amendment cannot be relegated as a second class right--meaning it must have equal protection as free speech and being in a protected class), but better than it currently is. We would at least have as many rights as the dress code violator, but not as many as the minority.

The statute is the statute whether it is in Cleveland or East Podunk. What the police do in each place is what the police do - it doesn't change what the statute says. The state has to prove knowingly.

Really, there is no statute necessary. If the owner posts a sign that says no barefoot people allowed, the situation is the same as for the gun owner. The state still must prove the people were knowingly violating the rule, thus they require the owner to tell them to leave before they arrest them.

[Liberty]

That might be true where you live, but not in places like Cleveland. If a business is posted anywhere, and CPD catches someone carrying, they will run the person through the system even if they know they could lose the case. Punishment by process.

Is this from actual, recent experience or conjecture? Because in my experience knowing guys on the job at CPD if you call to report someone trespassing in your business who is not threatening people you might get a police response in 2-3 hours. If they're actively threatening someone that may cut it down to 30 minutes. Shots fired or physically assaulting someone will knock it down to 10 or less. They're simply that busy with real calls that matter and that understaffed to give two flips about some private CPZ.

In recent years the only time I've heard of CPD giving CHL'ers a hard time is when the CHLer unnecessarily notifies the officer that they are not carrying. This is often given a "why in the **** not???" response.

Who said anything about the business owner calling the police? If you are carrying in a business in Cleveland or in one of the eastern block cities like Cleveland Heights or University Heights and the police are there and see you, you will be arrested. And because of that, people do not carry. If HB 233 were enacted, many people who would not otherwise carry would carry concealed.

[Liberty]

The statute is the statute whether it is in Cleveland or East Podunk. What the police do in each place is what the police do - it doesn't change what the statute says. The state has to prove knowingly.

Really, there is no statute necessary. If the owner posts a sign that says no barefoot people allowed, the situation is the same as for the gun owner. The state still must prove the people were knowingly violating the rule, thus they require the owner to tell them to leave before they arrest them.

We all know that the state has to prove that the person carrying must be carrying knowingly in a prohibited business. R.C. § 2923.126 (C)(3) makes it a criminal offense under R.C. § 2921(A)(4):

“(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.”

to carry in a business that prohibits such, and it does not require that the person carrying be asked to leave before it becomes a crime. That was the whole point of HB 233.

[djthomas]

Who said anything about the business owner calling the police? If you are carrying in a business in Cleveland or in one of the eastern block cities like Cleveland Heights or University Heights and the police are there and see you, you will be arrested. And because of that, people do not carry. If HB 233 were enacted, many people who would not otherwise carry would carry concealed.

So I ask again, are you speaking from actual experience or conjecture? I consider myself fairly well connected within the NEO LE community and to the best of my knowledge these kinds of situations just don't happen. For one there aren't that many posted businesses, even in liberal meccas like CH, UH, or Lakewood on the west side. Second, as a general matter officers drive around in their cars. They don't hang out in private establishments unless they've been called for a specific reason. In the already unlikely event you find yourself carrying in a posted business when an officer stops in on some other matter the odds of having any interaction or attracting their notice is slim at best, unless you go out of your way to draw their attention.

I'd love to see some real, actual cases where this has occurred though. Then it would be fun to get the report and see what actually happened in each one. There's a big difference in someone saying "oh my gosh, I didn't see the sign, I'm so sorry, I'll leave immediately" and being promptly cut down by a ninja squad and a guy openly carrying whose only response is to shout "MOLON LABE!" Names and/or case numbers would be really helpful here. CCW's been legal going on 15 years now so surely there's a stack of examples you can point me to?

We all know that the state has to prove that the person carrying must be carrying knowingly in a prohibited business. R.C. § 2923.126 (C)(3) makes it a criminal offense under R.C. § 2921(A)(4):

“(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.”

to carry in a business that prohibits such, and it does not require that the person carrying be asked to leave before it becomes a crime. That was the whole point of HB 233.

Actually it's the other way around. The conduct (of carrying in a posted establishment) is a criminal offense under 2921(A)(4) in and of itself. It's also not limited to firearms. To @schmieg's point, if there is a posted sign that says "No barefoot people allowed" an arrest can be made on that basis alone. 2923.126(C)(3) merely references the trespassing statute to make it clear that carrying in a private business is not a felony CCW offense.

From a private property standpoint I have trouble reconciling the idea that a business owner can have someone arrested on the spot for violating a sign that says "Shoes Required", but yet would have to verbally order someone violating their "No Guns" sign to leave first.

[Liberty]

So I ask again, are you speaking from actual experience or conjecture?

I worked in the field in NEO for many years and have taught criminal justice in colleges in NEO for the past 14 years. I have colleagues, relatives and friends who have and continue to work in the field, e.g., judges, prosecutors, sheriffs, police, corrections officers, corrections caseworkers, probation officers etc... It happens. Not often, and not as often as in previous years, but it happens.

That is not the point, however. It is legally permissible to happen, and because of that I and many others will place our families in danger by disarming when we have to be in a business that violates the constitution by using Ohio’s laws to prohibit the exercise of the second amendment. We cannot risk that kind of an arrest that would result in loss of the means of providing for our families. If HB 233 would have passed I and others would be able to carry very discretely.

I understand that you want businesses to be able to violate peoples’ right to defend themselves. That is your right to believe that, but I have a problem with you advocating for my rights that were given to me by God himself and then made the law of the land by our constitution to be violated illegally. “[T]he right of the people to keep and bear arms shall not be infringed.” I do not see any exceptions in there for private businesses. If you want to violate my rights legally, then you have to advocate repealing the second amendment. And I know what courts have said. They are wrong. Period. The language in the amendment is very, very clear and without exception.

This just illustrates my previous point. Too many people who claim to support our rights to defend ourselves do so selfishly while attempting to preserve power for themselves to violate the rights of others. That has to stop before we are able to have our rights completely restored by our state finally obeying the U.S. Constitution.

[schmieg]

So I ask again, are you speaking from actual experience or conjecture?

I worked in the field in NEO for many years and have taught criminal justice in colleges in NEO for the past 14 years. I have colleagues, relatives and friends who have and continue to work in the field, e.g., judges, prosecutors, sheriffs, police, corrections officers, corrections caseworkers, probation officers etc... It happens. Not often, and not as often as in previous years, but it happens.

That is not the point, however. It is legally permissible to happen, and because of that I and many others will place our families in danger by disarming when we have to be in a business that violates the constitution by using Ohio’s laws to prohibit the exercise of the second amendment. We cannot risk that kind of an arrest that would result in loss of the means of providing for our families. If HB 233 would have passed I and others would be able to carry very discretely.

I understand that you want businesses to be able to violate peoples’ right to defend themselves. That is your right to believe that, but I have a problem with you advocating for my rights that were given to me by God himself and then made the law of the land by our constitution to be violated illegally. “The right of the people to keep and bear arms shall not be infringed.” I do not see any exceptions in there for private businesses. If you want to violate my rights legally, then you have to advocate repealing the second amendment. And I know what courts have said. They are wrong. Period. The language in the amendment is very, very clear and without exception.

This just illustrates my previous point. Too many people who claim to support our rights to defend ourselves do so selfishly while attempting to preserve power for themselves to violate the rights of others. That has to stop before we are able to have our rights completely restored by our state finally obeying the U.S. Constitution.

The police do many things that are not correct. I'm sure that people have been charged without giving them the opportunity to leave, but it makes a court case much more difficult and opens the door to many defense tactics that might otherwise not be available. On the other hand, if you are aware of the property owner's prohibition, you are knowingly violating it if you enter armed which leaves you open to prosecution.

Our Constitution protects our rights from being violated by the government. Those protections do not apply to individuals and corporations in the same way. The question is are we going to limit property owners' right to control the use of their property further than we already have. Personally, I agree that we should decriminalize the signs and require personal notice and a request to leave the premises as a prerequisite. This would not eliminate the signs, but would put them into a different category, just as you would not see the "No Trespassing, Trespassers Will Be Prosecuted" signs disappear from posted rural property. I don't mind them posting the signs if they are decriminalized as it informs me of which businesses I want to give my money. However, I do feel that if they are going to criminalize them, the signs must be posted at all entrances and be conspicuous signs, not conspicuously posted. Texas' 30.06 requirements come to mind.

OFCC certainly does not favor CPZ's, whether statutory or private, and has fought them for years, including the criminalization aspect of private signage. However, the issue of restricting the rights of property owners to control their property has always been a bone of contention here. The more libertarian leaning members support the property owners and the less libertarian ones do not. If that is the only issue that determines your decision to support OFCC, then that is your choice. You will not be deprived of the benefits achieved by the organization in many other areas of the law.

[Liberty]

Our Constitution protects our rights from being violated by the government.

If that were true the second amendment would say Congress shall make no law that infringes upon the right of the people to keep and bear arms. I know that the courts have ruled otherwise, but those rulings do not change the language in the amendment.

The second amendment is federal preemption without any exceptions or regulation. The only way to legally regulate it is by amendment. I know the courts have done it by usurpation, and for evil reasons. They want to take the rest of our rights the same way. George Washington warned us about this in his farewell address:

"If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

I know doing it legally is not possible right now, but we as advocates need to understand how our government is structured and how it is supposed to work if we are ever going to be able preserve all of our rights.

And before anyone asks if I think the second amendment allows people to have nuclear weapons, yes it does, and the way that prohibiting people from having nuclear weapons should not have been done by usurpation; it should have been done by a constitutional amendment, e.g., "The second amendments does not apply to nuclear weapons." By not using a constitutional amendment, the government legitimized and preserved usurpation as a means of changing the constitution.

Also, the government is involved here, via R.C. § 2923.126. Doesn't this go against the core beliefs of the libertarians? Like I said, they want their freedoms, but they want to preserve power for themselves and use the government to impose their will upon others.

Having said all of that, I agree with the approach you laid out for decriminalizing the signs. Obviously, others do not.

[schmieg]

Our Constitution protects our rights from being violated by the government.

If that were true the second amendment would say Congress shall make no law that infringes upon the right of the people to keep and bear arms. I know that the courts have ruled otherwise, but those rulings do not change the language in the amendment.

The second amendment is federal preemption without any exceptions or regulation. The only way to legally regulate it is by amendment. I know the courts have done it by usurpation, and for evil reasons. They want to take the rest of our rights the same way. George Washington warned us about this in his farewell address:

"If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

I know doing it legally is not possible right now, but we as advocates need to understand how our government is structured and how it is supposed to work if we are ever going to be able preserve all of our rights.

And before anyone asks if I think the second amendment allows people to have nuclear weapons, yes it does, and the way that prohibiting people from having nuclear weapons should not have been done by usurpation; it should have been done by a constitutional amendment, e.g., "The second amendments does not apply to nuclear weapons." By not using a constitutional amendment, the government legitimized and preserved usurpation as a means of changing the constitution.

Also, the government is involved here, via R.C. § 2923.126. Doesn't this go against the core beliefs of the libertarians? Like I said, they want their freedoms, but they want to preserve power for themselves and use the government to impose their will upon others.

Having said all of that, I agree with the approach you laid out for decriminalizing the signs. Obviously, others do not.

I will say it again. The Constitution does not grant rights; it merely provides a vehicle to safeguard them.

The Second Amendment was not federal pre-emption until it was applied to the States through the 14th Amendment. This is only a recent legal development and is still getting sorted out. Do not apply evil to the courts in a general statement like you did here. Most judges are trying to do a balancing act to protect individuals and give government the ability to function at the same time. Some are better than others. Yes, some judges have agendas and they are not generally good judges. However, in a society where 30 to 40% of the population thinks that the First Amendment should be repealed, we are not going to be able to do much about those judges.

Regarding your point about the amendment process being a potential tool for the destruction of our freedom, this is the main reason that I truly fear a Constitutional Convention.

The "usurpation" of power that you refer to on nuclear weapons has been going on for a long time, more than 150 years, though it didn't come into its present form until the 20th century. Regarding nuclear weapons, I disagree as they are not weapons ordinarily used for common defense or individual defense. If I had my druthers, no one, not even the governments of the world, would have them, but trying to accomplish that would work as well as banning guns did in Chicago.

[JustaShooter]

I will say it again. The Constitution does not grant rights; it merely provides a vehicle to safeguard them.

And as you so correctly pointed out before, it is protection against *government* trampling those rights. Nothing in the Bill of Rights was ever intended as protection against *individuals*, as a reading of the papers and documents from the founders clearly shows.

I frankly find it abhorrent when someone claims any right of theirs supersedes the most fundamental of all rights, that of private property. Yes, you have the right to life, liberty, and the pursuit of happiness - but not on my property, regardless of whether I'm operating a business on that property, unless I allow it. Yes, you have the right to freedom of speech and religion - but not on my property, regardless of whether I'm operating a business on that property, unless I allow it. Likewise, you have the right to keep and bear arms, but not on my property, regardless of whether I'm operating a business on that property, unless I allow it. How anyone can conceive otherwise baffles me.

This artificial construct of "business open to the public" allowing government to restrict and regulate the property owner's basic right to allow or refuse to do business with anyone for any reason should be resisted with vigor, rather than embraced as a vehicle to allow *your* pet encroachment to be allowable.