Gun-rights advocate sues over weapons law

July 1, 2004
Cleveland Plain Dealer

Lawyer contends language inconsistent

Parts of the state's new concealed-weapons law are unconstitutional and were written by "idiots," contends a gun-rights advocate who sued the state Wednesday.

Stephen Miller, a lawyer and handgun instructor from Independence, sued in Cuyahoga County Common Pleas Court, asking a judge to strike down the law's language governing how guns may be carried in vehicles.

The law requires that when people licensed to carry concealed weapons get into a vehicle, they lock their guns in the glove compartment or a box, or wear them holstered "in plain sight." But the law doesn't define "plain sight."

That is a huge blind spot, Miller contends. A holstered gun, even if not covered by clothing or other obstruction, can be hard for a person outside a vehicle to see on someone in the driver's seat, he said. And without a clear definition, an otherwise legally armed motorist who gets pulled over by police is at the whim of the officer's or department's interpretation.

A representative from one department told Miller police would arrest anyone whose gun isn't visible to an officer at the driver's window, Miller said, but the chief for another department said police wouldn't arrest in that situation.

"Therefore, you have an unequal application of the law and a violation of the 14th Amendment guarantee of equal protection," Miller said.

The ambiguity also leaves police departments vulnerable to charges of false arrest, he claims.

Ken Hanson, a lawyer for the group Ohioans for Concealed Carry Inc., said Miller's concerns are valid, and police chiefs are equally baffled over how to enforce the law.

"Most of the places I've talked to have taken the common-sense approach that if a gun is visible from any vantage point outside the car, it's OK," he said. "But several have expressed concerns."

Hanson, who lobbied for the law, said the State Highway Patrol wrote the language in question.

Miller wants the "plain view" language stricken so people in vehicles "would be able to carry in their cars the way the license indicates: concealed."

But the effect could be a ruling that all loaded guns in vehicles must be locked away, Hanson said. Miller, who carries a license and a gun, says the law "is replete with stupidity from beginning to end," and probably should be scrapped until lawmakers can craft something better.

"Unless they fix this thing, this is just the beginning of a multiplicity of lawsuits I will file," he said. "I'm not against concealed carry. I'm against the moronic legislature that wrote the law . . . and the governor who signed it."

A spokesman for Attorney General Jim Petro did not return a call, and representatives of the Ohio Association of Chiefs of Police could not be reached.

Commentary: Although OFCC lobbied against the Taft/Ohio State Highway Patrol "plain sight" language, and would like nothing more than to see it amended via legislation, attorneys for OFCC see this lawsuit as an extremely risky pursuit.

First, the lawsuit has been filed in a Cuyahoga Co. court, where pro-gun rulings are anything but a commonality.

Second, the court's options are not limited to defining or removing the "plain sight" language. A much less desireable (and certainly potential) result is that the courts could completely sever the holster provision, leaving only glove compartment or locked case as choices for in-vehicle carry.

Third, the attorney who filed this suit is the same person who recently criticized Ohio's concealed handgun license law because it does not restrict licensees to carrying a single firearm.

Miller has been quoted in a past Plain Dealer article telling a room full of CHL-trainees at Stonewall Ltd. that the strongest message they could receive in the class was to "think hard before applying for a permit because it could bring more hassles than the privilege would be worth."

Because the constitutionality of the law is being challenged, Ohio Attorney General Jim Petro's office is duty-bound to defend the law as it now reads.

OFCC will continue to provide updates to this developing story.

NOTICE: The Associated Press has released an edited version of this story, and incorrectly stated that this lawsuit "has the support of Concealed Carry Inc.", referencing OFCC attorney Ken Hanson. OFCC hasn't seen the lawsuit, and hasn't taken any position, other than we believe this should be fixed by the legislature. The Associated Press has corrected the story.