FEATURE: Attorney's Revealing Testimony on HB347

In his personal time, attorney and author Ken Hanson volunteers as Buckeye Firearms Association's Legislative Chair, but on Tuesday, January 10, he testified as a proponent of House Bill 347 on behalf of his many clients. Hanson's testimony offers extraordinary insight into the reasons why Ohio's two year-old concealed carry law is in need of reform.

Chairman Latta and Representatives:

Thank you for giving me an opportunity to speak today. By way of background, I am an attorney in private practice in Delaware, Ohio. I currently serve as municipal prosecutor for two Villages, and previously have served as Chief Assistant County Prosecutor. For four years I also served as court appointed counsel for indigent defendants in major felony cases. In addition to my legal experience, I am a firearms instructor certified by the National Rifle Association and the Utah Department of Public Safety. I am the author of the Ohio Guide to Firearm Laws.

My testimony today is drawn upon my experiences with the law from the standpoint of a practicing attorney, whether civil, criminal or prosecutorial. I am going to share with you today the experiences of people under this law. These people either contacted me directly as clients, or their attorney contacted me for consultation on their cases. All of this testimony is based upon direct, personal knowledge, but in many cases the specific identity of the person involved is subject to attorney client confidentiality.

Media Access

You will recall that media access only became an “issue” after both the house and senate had voted to pass H.B. 12. Then, out of the blue, there came a need for the self-appointed media watchdogs to determine whether the “wrong” people were obtaining licenses. The media piously denied any other motive, and made representations the access would not be abused. Within days of getting their way, the media signaled their intentions to abuse the access by publishing lists of license holders, simply for the sake of publishing the lists.

My first exposure to problems with media access came from someone who contacted me after his name was published as a license holder. He contacted me to ask if there was anything he could do about his landlord evicting him for having a firearm. This person, a solid tenant for over a year, had to relocate his family home because of being exposed as a license holder. Imagine being forced to relocate away from your home because you exercised a constitutional right.

The next major exposure came when the Sidney County Sheriff, who has a documented history of actions to impede this law, including trying to add a 13th hour of training, illegally released the names and home addresses of all license holders. This list was subsequently published, complete with home addresses, by the local newspaper. Nearly a dozen persons contacted me about “doing something” for having this information released. I eventually succeeded in getting the appointment of a special prosecutor to present felony charges against the Sheriff. 6 months after his appointment, the prosecutor presented the case to the Grand Jury, having only talked to the victims I represented a few days prior to the Grand Jury. The case was presented as a “no harm no foul” excusing of the Sheriff, and the Grand Jury did not return charges. As this was a case where even a legal clinic student could have obtained an indictment, the only conclusion that can be reached is that the current safeguards do not work.

Compare these abuses, and the others you hear about today, to the “public interest” served by allowing this access. I ask you to have a representative of the media industry state exactly what that public interest is, and how blindly publishing lists is anything other than a thwarting of the intent of the General Assembly and an attempt to intimidate gun owners. The General Assembly has stated this information is not public record, and the media’s only use of the access thus far is to thwart this intent. If the General Assembly had decided to make this information public record through law, I could lobby, circulate petitions, attempt referendums, work for and against campaigns and other similar actions of redress. Instead, we have an unelected, unaccountable abstract establishment making the lists public contrary to the deliberations of this body with the only stated intent being to “reveal those who conceal.”

Allowing those who feel the need to do so to file an affidavit to exempt their information from release is the most reasonable of compromises. I ask that the current fix proposed in H.B. 347 be maintained. Certainly, any “fix” that involves discretion on the part of the Sheriff is likely not a fix. I had a client experience this with a county Sheriff who attempted to exercise discretion over her affidavit. It resulted in us having to go to the Ohio Supreme Court on Mandamus to say he was wrong. Additionally, another Sheriff attempted to exercise discretion on an application, forcing us to file a “priority” appeal from that action. It is 18 months and counting since the “priority” appeal was presented to the Court.

Plain Sight

If you listen to nothing else I say today, please listen to this. As a prosecutor for a number of years, as a defense attorney for a number of years, and as a firearms instructor, I make the following statement with absolute certainty: Plain sight in a motor vehicle is a legal fiction that cannot be reliably complied with by Ohio citizens. Each and every traffic stop of a license holder is at the mercy of the officer on the scene. This is not speculation, this is fact.

Ohio appellate case law says the exact same firearm can be 1.) In plain sight for the purposes of not needing a search warrant, while still being 2.) Concealed for the purposes of a concealed carry conviction. Additionally, the limited definitions of plain sight that we do have center around the object being visible to ordinary observation, not necessarily from one vantage point or another. We have already seen problems with this under H.B. 12.

I had a client who was a passenger in a car that was pulled over. He did everything he was supposed to do, hands up over his head, didn’t move or get out of the car and promptly notified the officer he was armed. According to those in the car, the officer said “That gun isn’t in plain sight” while he reached into the car to take the gun. This client was subsequently charged and had to go through court and expense to get out of the charges. Similar stories come from all other parts of the state.

Try this tonight when you get in your car. Clip your cell phone to your belt, get in the car and put on your seatbelt. Have someone walk around the car and try to see if the phone is in “plain sight.”

Balance this against the “need” for plain sight. Many surrounding states allow their citizens to carry a loaded firearm in a holster in plain sight, or locked in a glove compartment, WITHOUT ANY LICENSE AT ALL. When we are already requiring the license holder to keep hands in plain sight, not touch the gun, and promptly notify the officer, what does “plain sight” add to the equation other than the chance for an accidental felony charge?

Car Transportation

HB 347 contains an important fix for firearms owners in general, and this is in defining “loaded” for the purposes of transporting an unloaded firearm, as compared to a license holder carrying a loaded handgun. Ohio’s statute on this is very plainly worded, but the appellate case law has completely destroyed what “loaded” means. It is now to the point where people can be convicted for merely having a bullet somewhere in a gun case.

Once again, this is not speculation or a “what if” scenario, this is happening right now. If you go to an OPOTA training class, you will see that most police trainees are being taught this, contrary to the plain wording of the statute, based upon the appellate decisions. It is now to the point where someone could have bullets in a pocket and a gun in a case, and that gun could be considered “loaded.”

This is a critical fix that merely clarifies the law as currently written, and is not an expansion or granting of additional rights. This is a citizen protection measure that is long overdue.

Expunged Convictions

HB 347 contains a fix on the issue of whether expunged convictions are disqualifications, and the confusion over disclosing these convictions on applications. Additionally, Sheriffs are given some discretion to disregard sealed convictions. Again, this is not speculative corrective action, this is currently happening to citizens.

I had a client, a small business owner, charged with falsification on an application for not reporting a “conviction” on his application. Ohio statutory law is quite clear that this particular offense is not a “conviction” and need not be reported on an application. It cost him time and expense to get out of this, and he ended up leaving the state after resolving the case. Similarly, numerous persons have been denied over expunged convictions not disclosed on the application. Two different appellate courts have upheld these types of denials.

These people are in a situation where they go to court, obtain the sealing of the records, and are told the effect is that the conviction doesn’t exist anymore. Yet when it comes time to apply for a license, the rules apparently change. These people find themselves staring at a felony falsification charge with absolutely zero criminal intent on their part. Additionally, if a court has already determined these people should have their records sealed, the Sheriff should at least have the option of agreeing with the court that made that decision.

This is an important fix that provides some measure of protection to people who make good faith mistakes on the application, and does not expand significantly license eligibility.

Preemption

This provision is critical to gun owners in every district. Currently, a constituent of yours who is planning a trip of an hour or two to visit with friends across the state has no reliable way of complying with the law if he is traveling with a firearm. Rather than one set of rules to be followed, the citizen faces a patchwork myriad of laws depending upon which municipal boundaries are crossed.

Imagine if you will you leave here today and go out 670 to pick up 270 North by the airport. How many municipalities are you traveling through? 6? 10? If you are traveling with a firearm, do you know if your firearm is allowed in each municipality? The absurd result is that the citizen might be legal for a few miles, illegal for a few miles, legal again for 200 yards, illegal, but for a different reason, the next few miles.

I was involved in negotiations with over a dozen municipalities and their attempts to regulate concealed carry through their “home rule” provisions. Most were gracious, looked at the case law I presented, and agreed they could not do so. That was not the uniform result, however. Several municipalities continue to defy the concealed carry law, resulting in time consuming and expensive litigation.

The Ohio Municipal League will continue to oppose any law that contains preemption on the grounds that it is a slippery slope, and any erosion of “home rule” is bad. As a member of the Ohio Municipal League, I can tell you that the discussions have not been about firearms, rather, the discussions have been about opposing anything that tampers with home rule.

I have heard that John Gilchrist of the Police Chief’s Association similarly opposes preemption. Just off the top of my head I can think of at least half a dozen chiefs of police right around 270 who do not share his view, and it is baffling to me as someone who advises police departments where this institutional opposition comes from. Is it their position that being able to ambush otherwise law abiding citizens with obscure local gun laws is a good thing?

Municipalities are not bastions that pull up the draw bridges at night. In our current highly-mobile society, otherwise law abiding citizens find themselves in this situation every day. The citizens of our state should have a fighting chance at complying with firearms laws as they travel throughout the state, and preemption is the way to accomplish this. As a final comment on preemption, I would leave you with the comment one city council member made in considering this weighty matter, “Sue us, it won’t cost us anything, our law director is salaried.” A well worded preemption section, with a provision for attorney fees, will end most of this knee-jerk defiance.

Conclusion

Mr. Chairman, I appreciate the latitude to run a little over my allotted time today. I have been fortunate enough to be involved in many license holder’s lives, either through training, advice or representation, and I have found them to be a delightful group. When HB 12 was passed, many amendments were made simply as attempts to get enough poison pills on board to make the law fail. The law did not fail, and has been an unqualified success. The poison pill provisions do nothing to add to safety, and are nothing more than attempts to make the law too burdensome to comply with. The past two years have separated the facts from the fiction, and it is time to start moving towards a more sensible law. HB 347 is an important step on that journey.