Paper: Judge Junkin keeps gun; group fires back

Reprinted with permission of Sun Newspapers

September 16, 2004
West Geauga Sun

By KIM WENDEL

When a Bainbridge man had his gun taken by Chagrin Falls police last month, he didn't know he wouldn't get it back after he appeared in court.

Now, Ohioans For Concealed Carry is up in arms because Bedford Municipal Court Judge Peter J. Junkin kept the gun after the Aug. 23 hearing in his courtroom.

"We cannot believe that the judge kept the gun when we believe he had absolutely no right to do so," OFCC president Jeff Garvas said.

OFCC attorney Kenneth Hanson is appealing Junkin's decision to the state appeals court to get the handgun back to its owner. Junkin declined to comment because an appeal of his decision is pending.

Chagrin Falls prosecutor Tom Hanculak also declined to comment. Clerk of Courts Tom Day referred all questions to Junkin.

This is the first time a judge has kept a concealed-carry defendant's gun since a law allowing qualified individuals to carry a concealed weapon went into effect on April 8, Hanson said.

He would know.

Hanson, of Firestone & Brehm, Ltd., with offices in Sunbury and Delaware, Ohio, is the attorney of record for about 90 percent of the court cases in Ohio that have involved or involve the concealed carry weapons law, Hanson said.

Click on the "Read More...:" link below for more...

Case in point

On a traffic stop 11:15 p.m. Aug. 5, a Chagrin Falls police officer stopped a green Oldsmobile that had license plates registered to a Jeep.

Passenger Justin T. English, 22, of Bainbridge, placed his hands on the dashboard and said he was carrying a gun in a waist-band holster and had a valid permit.

The officer said the gun was concealed under English's shirt, so he immediately confiscated the .38 caliber Smith & Wesson revolver and English's carry permit.

English said his shirt was tucked in but came loose and covered the gun when he placed his hands on the dashboard.

The officer then called Hanculak.

According to Ohio Attorney General Jim Petro's office, guns being transported in a car must be: in a holster on the body in plain sight; locked in a glove compartment; or locked in a transport box in plain sight.

Charges filed

Hanculak reviewed the officer's report and filed charges of improper handling of a concealed weapon in a vehicle, a fifth degree felony, against English Aug. 12.

Talking later with Hanson, Hanculak said English had no past record. So, after reaching an agreement with Hanson, English pleaded no contest to the felony Aug. 23, and Junkin dismissed that charge with only $73 in court costs.

English then immediately pleaded guilty to disorderly conduct. Junkin found him guilty on that misdemeanor charge and fined him $223.

Why the gun?

Hanculak said he did not request that Junkin seize the gun.

But before Hanson and English left the courtroom to pay the total of $296 in costs, Junkin began questioning English as to why he had the gun in the first place.

That's when Junkin said the gun would stay in the evidence locker at the Chagrin Falls police station.

According to OFCC Northwest Ohio coordinator Chad Baus's account of the proceedings on the OFCC Web site, Junkin peppered the defendant with rhetorical questions, such as "if you see something, you are going to jump out and start shooting?'

Records confirm

A review of Bedford court records for that day confirms that Junkin kept English's $300 revolver.

Court records show Junkin hand-wrote a note on the case record after his decision _ Defendant would use weapon to intervene in situations...this is not a permitted use.

Garvas, Hanson, OFCC, and English disagree. The appeal will be filed in the 8th District Court of Appeals this week or early next week.

Hanson said the permitted uses for carrying a concealed weapon are clear, and that Junkin is wrong about the permitted uses and wrong to keep the gun.

Bedford court serves Bedford, Bedford Heights, Bentleyville, Chagrin Falls, Chagrin Falls Township, Glenwillow, Highland Hills, Moreland Hills, North Randall, Oakwood, Orange, Solon, Warrensville Heights, and Woodmere.

Commentary:
The author has provided one of the most complete public accounts of this case to date, but omitted a key detail:

Because English was not arrested the night of the traffic stop, it was against the law for the officer to confiscate his firearm in the first place.

ORC 2923.12.(H) If a law enforcement officer stops a person to question the person regarding a possible violation of this section, for a traffic stop, or for any other law enforcement purpose, if the person surrenders a firearm to the officer, either voluntarily or pursuant to a request or demand of the officer, and if the officer does not charge the person with a violation of this section or arrest the person for any offense, the person is not otherwise prohibited by law from possessing the firearm, and the firearm is not contraband, the officer shall return the firearm to the person at the termination of the stop. (emphasis added)

Furthermore, the Judge has no authority to order seizure of the gun until the prosecution makes a motion (ORC 2933.43 (C)). As noted in the story, the prosecution made no such motion.

Related Story:
Anti-gun judge illegally confiscates CHL-holder's firearm; defendant to appeal