Failure to Inform: CHL-holders taking a big risk on Ohio roadways

There are mounds of evidence that most members of the pro-gun community care deeply about the rule of law. We spend lots of money to ensure we are in compliance with the law. We spend lots of time discussing the law in discussion forums, and even more time and money trying to improve laws in our state capitols. It is never pleasant when we have to air dirty laundry, or have it aired for us in an instance where a good guy does bad.

But after having had two unfortunate opportunities to discuss Ohio's concealed handgun license (CHL) law with law enforcement officers during traffic stops in the past six months, I am convinced it is time to air some dirty laundry.

I call my experiences "unfortunate" not because of the nature of the stops (one resulted in a warning for not using a turn signal at 1:00 a.m. on a deserted Oregon, OH street, the second earned me a citation for exceeding the speed limit on a rural Fulton County road while checking for a vibration on a vehicle at my car dealership).

No, I say my experiences were unfortunate because, in both cases, at the conclusion of the stops the officers involved thanked me for promptly informing them that I was a CHL-holder and that I was carrying, and informed me that most people do not comply with the legal requirement in Ohio to inform an officer that they are legally carrying!!

When the City of Oregon officer finished giving me the verbal warning regarding the turn signal (really I think she was trying to make sure I wasn't driving home from a late night at some bar), she offered her thanks to me for actually complying with the requirement to inform, I found it odd.

I had to ask: "Are you thanking me because it's an uncommon occurrence?"

Her reply: "I stop probably one [CHL-holder] a week coming through on this road, and you are the first person to do so."

"This isn't people who are licensed, but aren't carrying, right? You're saying they were armed at the time?"

"Yes."

I was incredulous, and, to be honest, a bit skeptical. How could so many CHL-holders be that ignorant about their obligations at traffic stops?

I thought about writing on the incident at the time, but decided that one officer's anecdotal commentary wasn't enough to go on. But then came the Ohio State Highway Patrol officer who met me on that county road recently. Once again, at the conclusion of the stop, the officer thanked me for complying with the notification law, saying "most people don't do that."

"I'm an NRA-certified instructor, I've been teaching these classes since the law passed. This is the second time I've been told that," I replied. "It better not have been any of my students - we spend a lot of time on this and they know they could have their license suspended! Do you have any idea where these people being trained?"

The trooper proceeded to tell me a couple of anecdotal stories about CHLs who had neglected to inform him - sometimes at all - sometimes until he returned to the car after running their license. Then he addressed my question on their instruction:

"I had another area instructor who didn't inform me until 3 minutes into the stop. We discussed how he should have handled it, but he acted very cocky about the whole thing."

"Other than the requirement to inform," he added, "CHL-holders are very law-abiding people."

In Ohio, the law that is imposed upon persons issued a license to carry a concealed handgun who are carrying a concealed handgun and are stopped for a law enforcement purpose is strict - it was strict when the concealed carry law was first passed in 2004, and in 2006 the General Assembly actually expanded the restrictions when they passed HB347.

Ohio law mandates that when a licensee from the state of Ohio (or those reciprocal states who are traveling here!) is carrying, and is stopped for a law enforcement purpose, they shall "promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been issued a license or temporary emergency license to carry a concealed handgun and that the person then is carrying a concealed handgun."

Since this seems not to be getting through to everyone in their training classes, it bears repeating: IF YOU ARE A CHL-HOLDER AND ARE CARRYING A CONCEALED HANDGUN IN OHIO, YOU MUST INFORM LAW ENFORCEMENT IF YOU ARE STOPPED FOR A LAW ENFORCEMENT PURPOSE.

Still not convinced that this is important? Then consider that failure to promptly inform a law enforcement officer can result in being charged with a first degree misdemeanor, punishable by up to 6 months in jail and a $1000 fine! As if that weren't bad enough, probation (and the resulting loss of privileges and freedoms) may be tacked on to the jail term. No matter what type of punishment the judge settles on, a conviction WILL result in the suspension of the concealed handgun license for a period of one year from the date of conviction.

NOTE: During deliberations on HB347, certain interested parties lobbied to make "failure in inform" a felony. Only through the combined efforts of Buckeye Firearms Association and the NRA was this attempt defeated.

Beyond the requirement that CHL-holders traveling in Ohio must inform law enforcement officers that they have a license and are carrying, the law was modified by HB347 to mandate that licensees keep their hands in "plain sight" beginning when the officer approaches the vehicle and until they leave, and comply with all lawful orders given by the officer during the stop, or be charged with a first degree misdemeanor. A second conviction on failure to keep hands in "plain sight" or failure to comply with lawful orders earns a fifth degree felony!

Finally, HB347 requires that if the licenseholder who is carrying can be charged with a fifth-degree felony if, while being stopped for a law enforcement purpose, "knowingly remove[s] or attempt[s] to remove the loaded handgun from the holster, pocket, or other place in which the person is carrying it, knowingly grasp[s] or hold[s] the loaded handgun, or knowingly [has] contact with the loaded handgun by touching it with the person's hands or fingers at any time" beginning when the officer approaches the vehicle and until they leave (unless they are acting to comply with orders given by the officer).

In Ohio, a fifth-degree felony with a firearm specification is punishable by up to two years in prison and a $2,500 fine, followed by probation. In addition to the many social penalties, such as difficulty finding employment, felons lose their Constitutional rights to even own a firearm and to vote.

THESE REQUIREMENTS APPLY TO YOU IF YOU ARE AN OCCUPANT IN A MOTOR VEHICLE ON AN OHIO ROADWAY - NOT JUST TO YOU WHEN YOU ARE DRIVING.

Do I have your attention yet?

Ohio's firearms laws contain far too many places where a gun owner who is doing their best to follow the law can be trapped on a technicality. The "failure to inform" statute is no different.

For instance, not even most instructors (and thus their students) are aware that the duty to inform applies to each police officer who approaches a CHL-holder during a stop. If you are stopped by a partner cruiser, Officer A does the initial approach, the CHL-holder must inform them. If Officer B subsequently approaches, you are required to notify Officer B, and C, D, E and F if more arrive on the scene.

Ohio gun owners are well aware of our antiquated, backwards laws relating to gun ownership and usage. These requirements certainly fall within that same category. But as it stands, the law is what the law is, and we have a duty as law-abiding CHL-holders to follow it.

In my CHL classes, I not only stress the importance of the law-enforcement-stop portion of the law, but I also conduct role-playing exercises whereby the student is asked to put into practice the law they have just been taught.

No one plans to be pulled over by a law enforcement officer. Thus, as I instruct my students, it is most important that the CHL-holder think ahead:

• Each and every time you get into a motor vehicle (whether as a driver or other occupant!), after properly storing the your loaded firearm according one of the legal methods, make a mental note of what you would do and what your obligations are when stopped by law enforcement - today might be that day!
• Find a safe place to store your driver's license and CHL. Do you normally carry your driver's license and CHL in a way that makes them difficult to access at a stop without violating the requirement that hands remain in "plain sight"? Are they located in close proximity to your firearm (such as in your purse?), making it difficult to avoid violating the requirement that no hand or finger contact shall be made with the firearm?
• Don't begin rifling around the inside of the vehicle looking for your license and registration as soon as your car stops on the roadside. The officer has no way of knowing what you are looking for. Simply roll down your window and turn on your dome light (at night) as a courtesy to the officer. Then place your hands at 10 and 2 on the steering wheel, in "plain sight", and await the officer's approach.
• The officer will likely run your license plate through the law enforcement computer database before approaching your car. If you are driving, and the vehicle is titled to you, the officer will be notified that you are a CHL-holder. This in NO way eliminates your obligation to inform the officer that you have a license and are carrying. Also, if the vehicle is not titled to you, or if you are a passenger in someone else's vehicle, the officer will have no way of knowing about your license until you inform them.
• As soon as you can after the officer's greeting and/ or instructions, inform the officer as follows: "I will comply with your orders, but before I do I am required to inform you that I have a license to carry a concealed firearm and I am carrying." THIS IS EXTREMELY IMPORTANT. Some jurisdictions have been creating a trap between the "promptly comply with the orders of an officer" and "inform at point of first contact." They come to the CHL holder's vehicle and immediately order, "License and registration, proof of insurance," presenting the CHL-holder with a dilemma of choosing between failing to comply with a lawful order and failing to promptly notify. By answering as outlined above (I like to stress to my students that making their first words "I have a license..." rather than "I have a gun..." is likely to have better result), the CHL holder acknowledges the order and indicates compliance, but also promptly informs.
• The officer will likely ask you where the firearm is stored. So long as your firearm isn't in the same place as your license, registration, proof of insurance, it should be smooth sailing from there.
• Remember that Ohio law allows officers to take possession of your firearm during the traffic stop. They are not likely to do so, and in fact some law enforcement entities have instructed their officers NOT to do so due to liability concerns. However, don't let this surprise, concern or offend you if they do so. The law mandates that the officer return the firearm to you at the conclusion of the stop, unless you are being charged with a violation related to the firearm (or are being placed into custody for something else entirely).

Practicing these every time you enter a motor vehicle, until they become habits, will ensure that if you are stopped by a law enforcement officer, you will be one of the ambassadors for the CHL community. I highly encourage firearms instructors to put more emphasis on this portion of the law during your concealed carry courses. What will it say about you if your students are inadvertently breaking the law on a regular basis?

One final note. From time to time, on those pro-gun Internet discussion forums I referred to earlier, someone will post a story on a law enforcement officer who seemed to be enjoying their authority just a bit too much, or about one that seemed less familiar with concealed handgun laws than the poster was. I would humbly ask that, in view of the story I just told, the pro-gun community keep in mind that there is evidence to suggest that for every one officer like those they complain about, there are dozens and dozens who are being extremely gracious with CHL-holders who, by either ignorance or forgetfulness, are failing to fulfill their obligations under the law.

Chad D. Baus is an NRA-Certified Firearms Instructor, and the Buckeye Firearms Association Northwest Ohio Chair.

Following is the Ohio Revised Code which pertains to the discussion above.

Sec. 2923.12. (B) No person who has been issued a license or temporary emergency license to carry a concealed handgun under section 2923.125 or 2923.1213 of the Revised Code or a license to carry a concealed handgun that was issued by another state with which the attorney general has entered into a reciprocity agreement under section 109.69 of the Revised Code, shall do any of the following:

(1) If the person is stopped for a law enforcement purpose, and is carrying a concealed handgun, fail to promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been issued a license or temporary emergency license to carry a concealed handgun and that the person then is carrying a concealed handgun;

)(2) If the person is stopped for a law enforcement purpose and if the person is carrying a concealed handgun, knowingly fail to keep the person's hands in plain sight at any time after any law enforcement officer begins approaching the person while stopped and before the law enforcement officer leaves, unless the failure is pursuant to and in accordance with directions given by a law enforcement officer;

(3) If the person is stopped for a law enforcement purpose, if the person is carrying a concealed handgun, and if the person is approached by any law enforcement officer while stopped, knowingly remove or attempt to remove the loaded handgun from the holster, pocket, or other place in which the person is carrying it, knowingly grasp or hold the loaded handgun, or knowingly have contact with the loaded handgun by touching it with the person's hands or fingers at any time after the law enforcement officer begins approaching and before the law enforcement officer leaves, unless the person removes, attempts to remove, grasps, holds, or has contact with the loaded handgun pursuant to and in accordance with directions given by the law enforcement officer;

(4) If the person is stopped for a law enforcement purpose and if the person is carrying a concealed handgun, knowingly disregard or fail to comply with any lawful order of any law enforcement officer given while the person is stopped, including, but not limited to, a specific order to the person to keep the person's hands in plain sight.

...

(G)(3) Carrying concealed weapons in violation of division (B)(1) of this section is a misdemeanor of the first degree, and, in addition to any other penalty or sanction imposed for a violation of division (B)(1) of this section, the offender's license or temporary emergency license to carry a concealed handgun shall be suspended pursuant to division (A)(2) of section 2923.128 of the Revised Code.

(4) Carrying concealed weapons in violation of division (B)(2) or (4) of this section is a misdemeanor of the first degree or, if the offender previously has been convicted of or pleaded guilty to a violation of division (B)(2) or (4) of this section, a felony of the fifth degree. In addition to any other penalty or sanction imposed for a misdemeanor violation of division (B)(2) or (4) of this section, the offender's license or temporary emergency license to carry a concealed handgun shall be suspended pursuant to division (A)(2) of section 2923.128 of the Revised Code.

(5) Carrying concealed weapons in violation of division (B)(3) of this section is a felony of the fifth degree.

...

Sec. 2923.128 (A)(2)(a) If a licensee holding a valid license issued under section 2923.125 or 2923.1213 of the Revised Code is convicted of or pleads guilty to a misdemeanor violation of division (B)(1), (2), or (4) of section 2923.12 of the Revised Code or of division (E)(3), (4), or (6) of section 2923.16 of the Revised Code, the sheriff who issued the license or temporary emergency license shall suspend it and shall comply with division (A)(3) of this section upon becoming aware of the conviction or guilty plea. Upon suspending the license or temporary emergency license, the sheriff also shall comply with division (H) of section 2923.125 of the Revised Code.

(b) A suspension under division (A)(2)(a) of this section shall be considered as beginning on the date that the licensee is convicted of or pleads guilty to the offense described in that division, irrespective of when the sheriff notifies the licensee under division (A)(3) of this section. If the suspension is imposed for a misdemeanor violation of division (B)(1) or (2) of section 2923.12 of the Revised Code or of division (E)(3) or (4) of section 2923.16 of the Revised Code, it shall end of the date that is one year after the date that the licensee is convicted of or pleads guilty to that violation. If the suspension is imposed for a misdemeanor violation of division (B)(4) of section 2923.12 of the Revised Code or of division (E)(6) of section 2923.16 of the Revised Code, it shall end on the date that is two years after the date that the licensee is convicted of or pleads guilty to that violation. If the licensee's license was issued under section 2923.125 of the Revised Code and the license remains valid after the suspension ends as described in this division, when the suspension ends, the sheriff shall return the license to the licensee. If the licensee's license was issued under section 2923.125 of the Revised Code and the license expires before the suspension ends as described in this division, or if the licensee's license was issued under section 2923.1213 of the Revised Code, the licensee is not eligible to apply for a new license under section 2923.125 or 2923.1213 of the Revised Code or to renew the license under section 2923.125 of the Revised Code until after the suspension ends as described in this division.