NRA responds to Ohio Supreme Court's proposed rules to seize and destroy guns

On Monday, October, 8, we alerted gun owners across the state and around the country to a shocking move by the Ohio Supreme Court (OSC) that would empower law enforcement to seize guns without due process of law. This move was made through proposed amendments to the Rules of Superintendence for the Courts of Ohio - proposals which would usurp the role of elected lawmakers and represent the most significant changes to Ohio law of our time.

In addition to the multitude of individual responses, which overwhelmed both the OSC email system AND switchboard/voicemail systems, we can now report that the Court also received comment last week from six million gun owners, represented by the National Rifle Association.

Following is a letter submitted to the Court by the NRA on October 12:

RE: Proposed Amendments to the Rules of Superintendence for the Courts of Ohio

In response to the invitation for comments on the Proposed Amendments to the Rules of Superintendence for the Courts of Ohio (“Proposed Amendments”), I respectfully submit the
following comments on behalf of the National Rifle Association of America.

As explained in more detail in this submission, the Proposed Amendments raise several concerns: they modify or abridge “substantial rights,” including property rights, contrary to Ohio’s state constitution, Art. IV, § 5(B); they go beyond what is provided for in state and federal law and effectively legislate, encroaching upon the power exclusively reserved to the General Assembly; and parts of the Proposed Amendments appear to conflict with state law governing the suspension and surrender of concealed handgun carry licenses.

Background – Protective Orders & Firearms

Under federal law, only a limited class of protective orders will disqualify a person from possession or receipt of firearms. Even within this class of eligible orders, the disqualification cannot apply to any order made ex parte (that is, without notice to and an opportunity to appear and present evidence by the affected person). Otherwise, any firearm disqualification is tied to the duration of an order, and federal law has no surrender or relinquishment of firearms requirement. Persons who continue to possess firearms in violation of the prohibition in 18 U.S.C. § 922(a)(g)(8) commit a felony and are liable to be fined up to $250,000 and/or imprisoned for up to ten years. Any firearms “involved in or used” in a violation of the federal ban are subject to seizure and forfeiture; 18 U.S.C. § 924(a)(2), § 924(d)(1) (forfeiture provision).

Ohio’s firearm disability law, R.C. § 2923.13(A), does not include persons subject to a protective order. There is, accordingly, no requirement in state law that allows or authorizes the surrender or removal of firearms or ammunition from such persons.

A police officer who is responding to an alleged incident of domestic violence or an alleged violation of a protection order must seize any weapon used, brandished or threatened to be used in the incident, R.C. § 2935.03(B)(3)(h). However, this is an individual decision by a law enforcement officer authorized to make a seizure in certain circumstances, rather than a generally applicable requirement in all cases.

The Ohio General Assembly has assigned the authority to suspend and require surrender of a concealed handgun license, once a disqualifying protective order is made, to the law enforcement official who issued the license. Pursuant to R.C. § 2923.128(A)(1), only “the sheriff who issued the license” has the power to suspend it “upon becoming aware” that the licensee has become subject to a temporary protection order or to a protection order issued by another state. The sheriff must also notify the licensee “that the license has been suspended and that the licensee is required to surrender the license at the sheriff’s office within ten days of the date on which the [sheriff’s] notice was mailed.” Upon the expiration of the order (when the suspension ends), “the sheriff shall return the license or temporary emergency license to the licensee.”

R.C. § 3113.31(E)(1) outlines the authority a court has over protection orders concerning domestic violence or sexually oriented offenses. After an ex parte or full hearing, the court may grant any protection order, with or without bond, or approve any consent agreement. This may include adding any direction that comes within what is expressly provided for in R.C. §3113.31(E)(1)(a) to (k). None of these listed subsections mention firearms or the surrender of firearms, ammunition, or concealed handgun licenses. The court does have a more general authority under § 3113.31(E)(1)(h) to grant, in the order, “other relief that the court considers equitable and fair.” The section goes on to list examples of what may be imposed pursuant to this authority: “ordering the respondent to permit the use of a motor vehicle by the petitioner or, with respect to a petition involving family or household members, other family or household members and the apportionment of household and family personal property...”

These orders have no universal mandatory firearm prohibition or surrender requirement. This is made clear by reference to R.C. §§ 3113.31(F)(2); 2151.34(F); 2151.34, and other provisions which simply require the court issuing the order to give the affected person notice based on the possibility the federal prohibition may apply: “As a result of this order, it may be unlawful for you to possess or purchase a firearm, … or ammunition pursuant to federal law under 18 U.S.C. 922(g)(8) for the duration of this order. If you have any questions whether this law makes it illegal for you to possess or purchase a firearm or ammunition, you should consult an attorney.”

State Law Separation of Powers

“While Ohio, unlike other jurisdictions, does not have a constitutional provision specifying the concept of separation of powers, this doctrine is implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government… each of the three grand divisions of the government, must be protected from encroachments by the others, so far that its integrity and independence may be preserved.” S. Euclid v. Jemison, 28 Ohio St.3d 157, 159, 503 N.E.2d 136, 138 (Ohio 1986), quoting Fairview v. Giffee, 73 Ohio St. 183, 187, 76 N.E. 865, 866 (Ohio 1905).

Ohio’s Constitution, Art. II, § 1, vests legislative power in the General Assembly. (“The legislative power of the state shall be vested in a General Assembly consisting of a senate and house of representatives but the people reserve to themselves the power to propose to the General Assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided.”) A corresponding provision, Art. I, § 18, states that only the General Assembly has the power of suspending laws.

The powers granted by the state constitution to the courts are restricted. The extent of the rule-making the State’s Supreme Court is permitted is outlined in Art. IV, § 5(B) – to “prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right… The supreme court may make rules to require uniform record keeping for all courts of the state, and shall make rules governing the admission to the practice of law and discipline of persons so admitted.”

This limitation on the court’s authority is acknowledged in the Rules of Practice of the Supreme Court of Ohio themselves: S. Ct. Prac. R. Rule 1.03, titled “Authority,” reads: “The Rules of Practice of the Supreme Court of Ohio are promulgated pursuant to Article IV, Section 5 of the Ohio Constitution.”

“Firearm Surrender” is a Legislative Matter

Ohio state law extensively regulates firearms. Not surprisingly, the issue of firearm restrictions and mandatory surrender in the context of protective orders has been raised and considered by the legislative branch, certainly as early as 2013 with House Bill 160.

Most recently, House Bill 305 (2017-2018), introduced by Representatives Boyd (D-9) and Antonio (D-13), would impose a scheme of firearm surrender upon the issuance of a protective order. As is the case with the Proposed Amendments, the bill would allow a petitioner to include a statement in the petition that describes the number, types, and locations of any firearms. Upon issuance of an order under the proposed amended R.C. §§ 2151.34, 2903.13, 2903.21, 2903.214, 2919.25, 2919.26, and 3113.31, the bill would allow a court to order the respondent “to transfer all firearms in the respondent’s possession or control” to law enforcement, and to “ensure that the transfer is made.” Under the bill’s amended R.C. § 2923.13, a person subject to a protective order, as described, could not lawfully “acquire, have, carry, or use any firearm or dangerous ordnance” for the duration of the order. House Bill 305 also proposes a new section, R.C. § 2923.133, that establishes the procedure for the mandatory surrender and relinquishment of firearms by the respondent to law enforcement or a federally licensed dealer, consistent with the requirements of the bill.

House Bill 585 (2017-2018) also proposes an amendment to R.C. § 2923.13 to add persons subject to a “qualified protective order.” It creates a mandatory firearm relinquishment and surrender requirement upon the issuance of a new type of protective order, an “extreme risk protection order,” against the respondent.
To date, the Ohio General Assembly has not adopted changes to the existing laws.

“Substantive Rights”

Apart from the General Assembly’s authority over further changes to the existing laws on firearms, the state constitution contains an explicit prohibition on rule-making by the state Supreme Court. Art. IV, § 5(B) restricts the court’s jurisdiction to matters of “practice and procedure” and prohibits the court from prescribing or adopting rules that “abridge, enlarge, or modify any substantive right.”

Although this distinction between a “substantive right” and “practice and procedure” has been called “notoriously difficult to define in the abstract, and even harder to apply” (Richard S. Walinski and Mark D. Wagoner, Jr., Ohio’s Modern Courts Amendment Must be Amended: Why and How, 66 Clev. St. L. Rev. 69, 81(2017)), some assistance in resolving this distinction is provided by other provisions in the state constitution. Article I, § 4 safeguards, as a constitutionally protected right, a person’s right to keep and bear firearms (“The people have the right to bear arms for their defense and security …”); Article I, § 1, on “Inalienable rights,” provides that inalienable rights include “acquiring, possessing, and protecting property…”

The Proposed Amendments raise several concerns in this respect. At the very least, the preservation and restoration of lawful property that has been temporarily surrendered into “protective custody” due to a court order affects substantive property rights.

These forms – Form 10.01-H, for an ex parte order of protection issued under R.C. § 3113.31, and Form 10.01-Q, an ex parte dating violence protection order, for example – include a place on the forms to order a respondent not to “possess, use, carry or obtain” firearms or ammunition while “the order is in effect,” and to require the respondent to “turn over all… firearms and ammunition and concealed carry license” owned or possessed by the respondent to a law enforcement agency. This overlooks the fact that state law appoints the issuing sheriff as the official with the authority to suspend and take custody of a surrendered license, and state law lacks any express provision mandating that persons subject to such orders (ex parte or otherwise) and who are not otherwise under a firearm disability surrender lawfully acquired firearms and ammunition to the police, rather than secure them with a federal firearms licensee or family friend for the duration of an order.

This Form (and others in the Proposed Amendments) imposes additional extralegal burdens on firearm and property rights. Language that follows the direction on the “turning over” of guns, ammunition and concealed carry licenses states that “[a]ny law enforcement agency is authorized to take possession” and hold these items in “protective custody” “until further Court order.” However, protective orders aren’t indefinite in duration, have an expiry date, and may be in effect for only a short time. Following the issuance of an ex parte protective order made pursuant to R.C. § 3113.31(D), for example, a court is required to hold a full hearing “within seven court days after the ex parte hearing” and may decide not to issue a further order at that hearing. Once an order expires, the respondent is no longer restricted based on that order and is entitled to the prompt return of his or her property. Despite the statements on these forms, no additional court order is needed. A similar defect appears in relation to orders that have been terminated or modified prior to their expiry date: the forms, like Forms 10.01-K and 10.01-L, lack any affirmative direction to law enforcement agencies requiring that firearms, ammunition, licenses, or other lawful property taken from a respondent be restored.

The forms, though, go beyond an unauthorized retention of property after an order expires or is earlier terminated. Forms 10.01-I, 10.01-M, 10.01-Q, and 10.01-R, for example, authorize law enforcement agencies who hold firearms, ammunition, and weapons surrendered to their “protective custody” based on an order, to dispose of and possibly destroy the property on the expiration of an order pursuant to R.C. § 2981.12, “unless Respondent files a motion” with the court to preserve his or her property rights. R.C. § 2981.12 allows the agency to sell or destroy firearms in the agency’s custody, or keep for its own use any firearms suitable for police work. The implication here is that the issuance of a protective order and the associated mandatory surrender not only temporarily suspend the respondent’s right to possess a firearm, but potentially extinguish, permanently, any ownership rights he or she has in property that has been surrendered in compliance with a time-limited order.

Another potential “substantive rights” abridgement or modification presented by the Proposed Amendments is the effect of a mandatory surrender on the constitutional rights against self-incrimination protected by the state constitution, Art. I, § 10, and the Fifth Amendment of the United States Constitution. In one case, the court held that the defendant’s act of turning over his unlicensed handgun to the police, which he was compelled to do in order to comply with an order of protection, was “testimonial” and incriminating so as to be privileged under the Fifth Amendment. The order required the defendant to surrender any and all firearms he owned or possessed, and his surrender of the gun was the exclusive source of evidence the state had in prosecuting him for the criminal possession of an unlicensed gun. Accordingly, because the compelled production of evidence implicated the Fifth Amendment right against self-incrimination, the court suppressed the evidence.

Discredit Lawful Firearm Access and Use

The Proposed Amendments appear to stigmatize lawfully acquired firearms and their legitimate use by including lawful access and use as a factor supporting the issuance of a protective order. The forms (e.g., Form 10.01-D, the petition for a protective order under R.C. §3113.31, and Form 10.01-P, petition for a dating violence protective order) add a requirement in which a petitioner may indicate whether the “respondent has access to … firearms and ammunition,” or a “history of use” of deadly weapons (including military service, hunting, target shooting, and other lawful activities or occupations). This is ranked along with factors like the respondent’s “history of domestic violence or history of other violent acts,” mental health problems, history of violating court orders, threats to other persons, violence resulting in serious physical harm or forced entry, abuse of illegal drugs, and suicidal/homicidal thoughts. Unlike these other factors, though, the firearms reference isn’t restricted to dangerous, threatening, illegal or even irresponsible conduct; instead, all access and any use are equally suspect.

Rule Changes are not “Equitable and Fair”

Assuming that the authority of the court under R.C. § 3113.31(E)(1)(h) to grant “other relief that the court considers equitable and fair” extends to orders requiring the mandatory surrender of firearms, ammunition, and weapons, state law nonetheless restricts the court’s jurisdiction to relief that is “equitable and fair.”

The Proposed Amendments fail to meet this standard. The forms authorize law enforcement agencies to retain surrendered firearms and other property until a “further Court order,” even after an order expires and the “protective custody” comes to an end. Forms for orders with an expiry date, or those that have or been terminated or modified prior to their expiry, lack any affirmative direction to law enforcement requiring that firearms, ammunition, or other lawful property taken from a respondent be promptly restored. None of the forms give advance notice to a respondent/defendant that the property he or she surrenders in compliance with an order is liable to possible disposition through sale, destruction, or retention by the law enforcement agency with physical custody, pursuant to R.C. § 2981.12. Likewise, none of the forms clearly inform respondents/defendants that they, as the property owner, have the onus of initiating court action (“files a motion”) if they wish to preserve their ownership rights and have their property returned, and that this must be done despite the expiry or termination of the authorizing protective order. Form 10D, the Protection Order Notice to Respondent or Defendant, has nothing that outlines these matters to the affected person.

The Proposed Amendments have the potential for misinforming respondents/defendants on what compliance obligations apply and what an order requires. Proposed Rule 10(B), under which notice is given to a respondent/defendant about the existence of a protective order pursuant to R.C. § 2919.27(D), directs that the notice be “substantially similar to Form 10-D.” Although Form 10-D indicates that some of the listed terms of the protective order “may apply,” it advises, nonetheless, that “You are prohibited from possessing or purchasing firearms, ammunition or any other deadly weapon.”

Thank you for this opportunity to participate.