Buckeye Firearms Association (BFA) screws 9.68 challengers!

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Buckeye Firearms Association (BFA) screws 9.68 challengers!

Post by BB62 »

A central part of Ohio's firearm preemption law, ORC 9.68, is the provision for a citizen, group or entity to challenge ordinances, policies, etc. not in compliance with the law.

You know, it's got to be tough for governmental entities, who have only had **12 YEARS** to get their act together and stop threatening (directly or indirectly) law-abiding citizens with consequences for completely legal acts.

The problem has been governmental entities which play games with enactment or enforcement: by either forcing a legal challenge, or removing the offending law or policy AFTER an individual or group has hired an attorney or filed suit.

Into this mix stepped Buckeye Firearms Association with their self-congratulatory "fix" for this and other matters. The problem is that, as I read it, the "fix" is actually a few steps backward - and they link to an inaccurate version of what was passed!

Just how did BFA screw over those who might challenge 9.68 violations?

1) By accepting language in the bill that passed which says "9.68(B) A person, group, or entity **adversely affected** by any manner of ordinance, rule, regulation, resolution, practice, or other action enacted or enforced by a political subdivision..." (my emphasis) and

2) By LEAVING OUT a broad definition of who could be considered "adversely affected"!

Why should a person/entity have to prove they are adversely affected in order to challenge an unlawful law or policy? Why should one (for instance) have to be arrested, cited, or threatened with same in order to have standing?? Well, apparently because BFA said it was okay!


BFA's self-congratulatory article: https://www.buckeyefirearms.org/update- ... te-tallies" onclick="window.open(this.href);return false;

Link within the above article ("Download The Act Here") to the supposed act as passed, which contains the following language:

(3) "Person, group, or entity adversely affected" means any of the following:

(a) A person who has standing under the law of this state to bring a civil action under division (B) of this section;

(b) A resident of this state who may legally possess a firearm under the law of this state and the United States;

(c) A membership organization, group, or entity, the members of which include one or more persons described in division (C)(3)(a) or (b) of this section.


Ohio Legislature website, under the "Legislation Text/View Current Version", which shows no definition for those "adversely affected": https://www.legislature.ohio.gov/legisl ... 132-HB-228" onclick="window.open(this.href);return false;


Current ORC 9.68: http://codes.ohio.gov/orc/gp9.68" onclick="window.open(this.href);return false;

"(B) In addition to any other relief provided, the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section."
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by rickt »

Interesting point.

I know in the Columbus case, Columbus tried to prove that OFCC/BFA lacked standing and therefore should not be allowed to pursue the lawsuit. Luckily, the judge decided they did have standing. Will this "adversely affected" make it harder for them to prove standing?
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by djthomas »

rickt wrote:I know in the Columbus case, Columbus tried to prove that OFCC/BFA lacked standing and therefore should not be allowed to pursue the lawsuit. Luckily, the judge decided they did have standing. Will this "adversely affected" make it harder for them to prove standing?
I doubt it. As you point out courts around the state have had little problem saying that somebody who lives or works in a given city, or has members who do, have standing under the existing 9.68 to bring suit.

One does not need to be arrested to be adversely affected by a law or a rule. In fact, the revised law specifically allows an adversely affected person or group to seek injunctive relief, meaning before the anti-gun law even comes into effect. Lacking a statutory definition of "adversely affected" I turn to my old well-worn copy of Blacks for guidance. It does not define what it means to be adversely affected but the phrase is used in the context of being aggrieved. That is, a person or entity is aggrieved if they "[have] legal rights that are adversely affected; having been harmed by an infringement of legal rights." In other words if the law impacts the rights guaranteed to you under 9.68 then you are likely adversely affected and thus have standing. Being precluded from doing something that I am otherwise legally authorized to do causes me harm, even if it's not at the level of harm as say, an arrest.

As to one having to prove standing - that is always true. A defendant in a civil suit has the right to challenge the plaintiff's standing to bring it, and the plaintiff has to satisfy the judge that such standing exists or risk the case being dismissed.

One thing I did not notice until now though is that the changes to 9.68 don't go into effect until December. Hopefully a big shot across the bow of the various political subdivisions to get their affairs in order. Other than that I think the new 9.68 is quite a bit stronger than the current version.
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by BB62 »

djthomas wrote:
rickt wrote:I know in the Columbus case, Columbus tried to prove that OFCC/BFA lacked standing and therefore should not be allowed to pursue the lawsuit. Luckily, the judge decided they did have standing. Will this "adversely affected" make it harder for them to prove standing?
I doubt it. As you point out courts around the state have had little problem saying that somebody who lives or works in a given city, or has members who do, have standing under the existing 9.68 to bring suit. ...
(my emphasis above)

True, under EXISTING LAW.

djthomas wrote:... One does not need to be arrested to be adversely affected by a law or a rule. In fact, the revised law specifically allows an adversely affected person or group to seek injunctive relief, meaning before the anti-gun law even comes into effect. Lacking a statutory definition of "adversely affected" I turn to my old well-worn copy of Blacks for guidance. It does not define what it means to be adversely affected but the phrase is used in the context of being aggrieved. That is, a person or entity is aggrieved if they "[have] legal rights that are adversely affected; having been harmed by an infringement of legal rights." In other words if the law impacts the rights guaranteed to you under 9.68 then you are likely adversely affected and thus have standing. Being precluded from doing something that I am otherwise legally authorized to do causes me harm, even if it's not at the level of harm as say, an arrest. ...
I'm sorry, but words have meaning. They aren't just fluff meaning "aggrieved".

That phrase wouldn't have been inserted except to give recalcitrant governmental entities a way out. It'll be the same old, same old: "It's on our books, but we don't enforce it", or "That's our policy".

Just watch and see - I have zero doubt that what I've predicted will come to pass. One will have to either prove an adverse effect, or one will be denied standing.

It's not as if BFA couldn't have learned from the experiences of other states like KY and FL, or their own lawsuit against Columbus and Cincinnati. Having provision for civil fines, adding the word "accessories", and adding the word "promulgated" come to mind, for example.
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by djthomas »

Yes, words mean things. If the intent was to require one to be adversely affected to the point of having been arrested, then why would the statute allow such parties to seek injunctive relief, and why would it now permit challenging "any ordinance, rule, regulation, resolution, practice, or other action or any threat of citation, prosecution, or other legal process" Having a law on the books that prescribes a penalty is absolutely a threat of prosecution even if you say you don't enforce it.

If you have an actual citation for the legal definition of adversely affected then please, by all means post it here and cite your sources. I've at least tried to find one but all I'm getting in response is un-sourced conjecture and blaming some other 2A advocacy group that neither writes legislation nor votes on the final product.
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by Bearable »

Part of the bill does not take effect until December 28, 2019.
Section 9.68 of the Revised Code, as amended by this act, shall take effect nine months after the effective date of this act.
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by BB62 »

djthomas wrote:Yes, words mean things. If the intent was to require one to be adversely affected to the point of having been arrested, then why would the statute allow such parties to seek injunctive relief, and why would it now permit challenging "any ordinance, rule, regulation, resolution, practice, or other action or any threat of citation, prosecution, or other legal process" Having a law on the books that prescribes a penalty is absolutely a threat of prosecution even if you say you don't enforce it.

If you have an actual citation for the legal definition of adversely affected then please, by all means post it here and cite your sources. I've at least tried to find one but all I'm getting in response is un-sourced conjecture and blaming some other 2A advocacy group that neither writes legislation nor votes on the final product.
Hmmm... Where to start?

1) I've been involved in firearm rights activism, as well as law creation, in multiple states, including Ohio.

2) I've been a keen observer of prosecutions as well as legal challenges (one of which is ongoing - mine) in multiple states.

3) I've repeatedly seen judges take liberties with/misconstrue the general definition of/make up their own meaning of words or phrases that are in the law, as well as those which are not even present - regardless of what Black's Law, Merriam-Webster, or my friend "the human thesaurus" has to say about such things.

4) Introducing the phrase "adversely affected by" into 9.68, where it was not present before is simply an invitation for mischief - which experience dictates some will undertake with fervor.

As to your suggestion that somehow BFA isn't responsible for the wording of a law they publicly claimed credit for as well as championed, all I can say is ROFL. I know from personal experience with the legislative process with them and others that that's simply not the case. On top of that, you don't see OFCC or Ohio Gun Owners claiming credit, do you?

Maybe BFA will act effectively in the future, or maybe they will continue to be a spoiler in failing to demand accountability for legislators who continue to slow-walk gun law improvements.

You can deny and demur, and demand citations all you want, but truth is truth, and the truth is on my side. Just watch and see.
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by DontTreadOnMe »

BB62 wrote:2) By LEAVING OUT a broad definition of who could be considered "adversely affected"!

Why should a person/entity have to prove they are adversely affected in order to challenge an unlawful law or policy?
Because that's how it works.
It's called standing and you have to have it in order to challenge a law. See https://en.wikipedia.org/wiki/Standing_(law" onclick="window.open(this.href);return false;)
In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he/it is or will "imminently" be harmed by the law.
If you don't like Wikipedia as a source, here's a US Supreme Court citation, courtesy of https://legal-dictionary.thefreedictionary.com/standing" onclick="window.open(this.href);return false;
In Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), the Court denied standing to an environmental group that was challenging a decision by the secretary of the interior. The Court ruled that the Sierra Club had not demonstrated that its members would be substantially adversely affected by the secretary's decision.
Emphasis mine.
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by schmieg »

DontTreadOnMe wrote:
In Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), the Court denied standing to an environmental group that was challenging a decision by the secretary of the interior. The Court ruled that the Sierra Club had not demonstrated that its members would be substantially adversely affected by the secretary's decision.
Emphasis mine.
The old "Trees don't have standing" case.
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by BB62 »

DontTreadOnMe wrote:
BB62 wrote:2) By LEAVING OUT a broad definition of who could be considered "adversely affected"!

Why should a person/entity have to prove they are adversely affected in order to challenge an unlawful law or policy?
Because that's how it works.
It's called standing and you have to have it in order to challenge a law. See https://en.wikipedia.org/wiki/Standing_(law" onclick="window.open(this.href);return false;)
In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he/it is or will "imminently" be harmed by the law.
If you don't like Wikipedia as a source, here's a US Supreme Court citation, courtesy of https://legal-dictionary.thefreedictionary.com/standing" onclick="window.open(this.href);return false;
In Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), the Court denied standing to an environmental group that was challenging a decision by the secretary of the interior. The Court ruled that the Sierra Club had not demonstrated that its members would be substantially adversely affected by the secretary's decision.
Emphasis mine.
If you're going to quote something I wrote, you should make more of an effort to put it in context, and quote the entirety of it - although doing so would make your point invalid...
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by DontTreadOnMe »

I didn't quote the rest of your post because IMO it's hyperbole. As I read your posts they boil down to a concern about the addition of the term "adversely affected" as to who can bring legal challenges and the lack of a specific definition as to what that term means.

Whether it's written into the law or not it's already a requirement that a person has to have standing in order to be able to proceed in court with a challenge. Unless granted standing in a special circumstance the general requirement is that a party has to show they are adversely affected. The term is a well understood legal term and does not need to be defined within the statute in order for the courts to understand what it means.

In effect this introduces no limitation that wasn't already present. Anyone suing a municipality against the current 9.68 would already have to show they would be adversely affected by the law they're challenging (for example a resident of Cleveland would have to show why they would be affected by a Cincinnati ordinance - which is why such suits have usually been filed on behalf of individuals within the same jurisdiction).
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by BB62 »

DontTreadOnMe wrote:I didn't quote the rest of your post because IMO it's hyperbole. As I read your posts they boil down to a concern about the addition of the term "adversely affected" as to who can bring legal challenges and the lack of a specific definition as to what that term means.

Whether it's written into the law or not it's already a requirement that a person has to have standing in order to be able to proceed in court with a challenge. Unless granted standing in a special circumstance the general requirement is that a party has to show they are adversely affected. The term is a well understood legal term and does not need to be defined within the statute in order for the courts to understand what it means.

In effect this introduces no limitation that wasn't already present. Anyone suing a municipality against the current 9.68 would already have to show they would be adversely affected by the law they're challenging (for example a resident of Cleveland would have to show why they would be affected by a Cincinnati ordinance - which is why such suits have usually been filed on behalf of individuals within the same jurisdiction).
As I pointed out in my initial post, and which you have blithely ignored, the language below WAS in the bill, but was removed, thereby screwing 9.68 challengers by making it more difficult to garner standing than was proposed:

(3) "Person, group, or entity adversely affected" means any of the following:

(a) A person who has standing under the law of this state to bring a civil action under division (B) of this section;

(b) A resident of this state who may legally possess a firearm under the law of this state and the United States;

(c) A membership organization, group, or entity, the members of which include one or more persons described in division (C)(3)(a) or (b) of this section.
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by DontTreadOnMe »

Oh you thought that was going to hold up in court? Don't be silly. That would've just been another 9.68 provision inviting Cleveland, Columbus and Cincinnati to invalidate 9.68 and likely win. Nonsense to write in that a person who resides in an opposite part of the state and never steps foot in Cleveland is adversely affected by Cleveland gun legislation simply because they own a gun. It'd never hold up.

Best case scenario a judge just throws out that portion. Worst case a judge decides to invalidate all of 9.68 and our side has to appeal to the state SC to get the rest of it reinstated.
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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by BB62 »

Just as expected, and again thanks to BFA for screwing us over, Columbus has claimed that OFCC's own Gary Witt (a Columbus resident, btw) doesn't have standing to challenge their laws **because he hasn't been charged with a crime** under what Witt contends are laws violating ORC 9.68.

https://www.dispatch.com/news/20190916/ ... strictions" onclick="window.open(this.href);return false;

"Columbus is asking the Ohio Supreme Court to rule that a man has no right to sue the city in a bid to overturn gun restrictions.

The gun-rights activist, Columbus resident Gary Witt, has no legal grounds to challenge city gun ordinances because he has not been harmed by their enactment, the office of City Attorney Zach Klein argued in an appeal filed Friday.

Such an action can be pursued only by a person charged with a misdemeanor offense under the ordinances, the city’s filing contends. ..."

Thanks BFA! :roll: :roll:
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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Re: Buckeye Firearms Association (BFA) screws 9.68 challenge

Post by JustaShooter »

As much as I dislike BFA and many of the thing's they've done, they aren't responsible for this. Those changes to ORC 9.68 have not yet gone into effect, and won't until December 28th.
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