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An Ohio law that bans the carrying of concealed weapons violates the state’s constitution, the Ohio Court of Appeals, 1st District, held on April 10. Klein v. Leis, No. C-020012. In a ruling resting on a state constitutional provision that guarantees citizens “the right to bear arms for their defense and security,” the court said that because police in the Cincinnati metropolitan area routinely arrest people who openly carry firearms, the practical effect of the ban is to deprive area residents of any right to bear arms. The law, R.C. 2923.12, bans concealed carrying altogether, but includes several affirmative defenses. For example, a person engaged in lawful activity can carry a concealed weapon when he has reasonable cause to fear a criminal attack or if a “prudent person” would be justified in carrying a firearm. But the court said these “defenses are largely ignored at the initial point of contact between a citizen and an officer,” so the citizen is usually arrested for actions later found to be legal. Five Cincinnati-area residents sued the city, state and other municipalities, claiming that they regularly carried concealed handguns and feared they would be arrested and found not to have a defense. A trial court ruled that the defendants could not enforce the law. Upholding that declaratory judgment, the appeals court said the affirmative defenses were unconstitutionally vague. “We consider ourselves persons of average intelligence, and we cannot tell what is legal and what is not,” wrote Judge Mark P. Painter for the court. The court added that the law was excessively burdensome because defenses could not be invoked until trial. “Guns or no guns, we know of no other situation where a citizen is guilty until proven innocent,” Painter said. Richard Ganulin, a Cincinnati assistant city solicitor, said the court’s factual assumptions were not supported by the record. He said an assistant chief of police, Lt. Col. Richard Janke, had testified that officers were trained on affirmative defenses, so “there is no real likelihood that [these plaintiffs] would be arrested.” But William M. Gustavson, plaintiffs’ co-counsel, said, “in the last three to four years, only one person has been let go” by police after being found with a concealed firearm. He said his statement was based on field investigative reports (FIRs), which are filled out after police decide not to arrest someone. “Janke testified that maybe FIRs weren’t filled out,” Gustavson said, “but they filled out FIRs for people with pellet guns and paintball guns, why wouldn’t they fill one out for real guns?” He added, “Everyone knows that murderous thugs already have guns. But a law-abiding citizen who makes a misjudgment about whether he has an affirmative defense can [be convicted of a felony and] lose the right to possess a gun ever again.” Although the court’s decision currently leaves area residents free to carry concealed weapons without regulation, Ganulin said the Ohio Legislature is considering a gun permit bill. But, he added, Gov. Bob Taft has said he will veto the law as long as police are opposed to it. All of the defendants have appealed.

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