Misdemeanor Gun Forfeiture Ordinance Reveals Hole in Ohio Preemption Law

U.S.A. – -(Ammoland.com)- “Richmond Heights City Council has passed an ordinance that adds further stipulations to misdemeanors surrounding firearms, including the forfeiture of weapons if convicted,” The News Herald reports. “The law was passed this past week in order to help combat the growing number of firearm violations.”

If they were firearm violations and the city knows about them, then there are already laws on the books making them illegal, for which known violators can be charged and prosecuted. Indeed, that’s the case here, with current misdemeanor charges applicable for illegal discharges, possession while intoxicated, and carrying a gun into an establishment posted as banning them, with the added proviso that doing so without a permit “is a felony.”

What the Richmond Heights ordinance does is require a violator’s gun to be forfeited.

What the city is doing is transparent: It is adding more punishments not included under Ohio law. This is unabashedly an in-your-face gun-grabber retaliation against Ohio’s recently-enacted “permitless carry” law. Think of it as “lawfare.” More appropriately, think of it as an act of “We’ll show you” revenge by spiteful bureaucratic gun-grabbers.

And they dictate the terms of gun owner surrender in no uncertain terms:

“Under this new legislation passed in Richmond Heights, the misdemeanor and fine will remain with the added stipulation that the weapon is forfeited. The forfeiture of these weapons under the new law cannot be contested, and the courts will not have discretion on the matter of the seizure.”

The thing is, Ohio is a preemption state.  But Richmond Heights is counting on a legal workaround, or what could be called the “gun confiscation loophole.”

“The forfeiture laws were revised about 10 years ago and a municipality’s ability to create a forfeiture penalty was expressly reserved by the state to the municipalities,” City Prosecutor Michael E. Cicero claimed. “You could have a forfeiture for the misdemeanor and the state has reserved that for cities and villages.”

They’re going to get away with it, too, and show the way for other cities to adopt similar measures.

“What I have found indicates that this seizure of firearms for misdemeanors as part of sentencing does not violate 9.68 preemption,” Buckeye Firearms Association attorney Sean Maloney replied in response to AmmoLand’s inquiry requesting a statement from the Ohio gun rights group.

So by adding a forfeiture/confiscation requirement that will be upheld, the city has upped the danger to gun owners.

“If gun owners simply act responsibly, it’s never going to affect them,” Cicero counters. “But if you violate the Richmond Heights Codified Ordinance you will mandatorily forfeit the weapon.”

Count on the antis to characterize opposing this infringement as “guns nuts” being for shooting guns in the air by armed drunkards terrorizing people as they deliberately trespass in “gun-free zones” like schools. But will that necessarily be the case?

It’s not hard to imagine plenty of situations less clear-cut, such as those arising from DGUs (defensive gun uses) where a shot may have been fired and charges are brought with the hopes of wearing defendants down to a plea bargain. Or a gun owner may find himself in a situation where disarming is the least safe and prudent of choices. To blanket confiscate guns for such misdemeanors is a gross abuse of a fundamental right.

Richmond Heights’ ordinance, though, allows no mitigating circumstances and exploits another Ohio law that doesn’t, either.

“The second is someone in possession of a firearm when they are intoxicated, even if they are in their own house, it is all right if the firearm is in a safe or somewhere that is properly stored but if a firearm is on your person or in your hand while you are under the influence that is a crime,” Cicero asserts.

That’s .08% under Ohio law, or as little as two to three drinks depending on sex and weight. In your home. Defenseless, if the antis have their way.

Lock it or lose it. In your own home. And happy Thanksgiving dinner!

Yeah, but this is all noise, and the situation where someone might be charged is too far-fetched to imagine ever happening…? Never underestimate the all-too-common tendency of indignant citizens to incriminate themselves because they don’t know when to shut up when the police show up at their homes. Especially if they’ve had a few.

Don’t look for career Republicans in the Ohio legislature to strap ‘em on and champion a change to state law—the openings for an attack would be just too “attractive” for the Democrats and their media allies to pass up, and they could do a lot of damage in a 30-second campaign commercial. That said, here’s an area where gun owner advocates could make their voices known before things end up requiring time, effort, and expense to undo, by monitoring the city government websites and keeping apprised of legislative efforts before they become a done deal.  Case in point, Richmond Heights made no secret of their plans, as evidenced by the publicly posted Council meeting agenda.

Downloading it, we see there it is, under “Old Business,” meaning by “third reading” that they’ve been pushing it along in earlier meetings. What they were plotting should have been no surprise:

ORDINANCE NO.: 101-2022, INTRODUCED BY LENTINE, THIRD READING AN ORDINANCE AMENDING SECTION 501.99 OF CHAPTER 501, “GENERAL PROVISIONS AND PENALTY”, OF THE CODIFIED ORDINANCES TO ADD A PROVISION FOR FORFEITURE OF PROPERTY USED OR INTENDED TO BE USED IN THE COMMISSION OF OFFENSES OF CHAPTER 549, “WEAPONS AND EXPLOSIVES”.

Immediately preceding that was the agenda item where gun owners with their eyes on the ball could have made a difference and knocked the approaching threat off course before it struck: “AUDIENCE COMMENTS.”

That brings to mind a maxim attributed to late Democrat Speaker of the House Tip O’Neill: “All politics is local.” We have a much better chance of affecting outcomes at the local level than effecting huge change. It’s a simple matter of numbers and resources. Sometimes it’s as simple as a show of force at the meeting by organized rights advocates prepared to use the First Amendment to defend the Second.

It can be done, and I say that speaking from personal experience from 20+ years ago, when my then-city council, under preemption constraints at the time, presumed to pass a resolution urging the state to ban semiautos:

Fortunately, a hundred irate gun owners showed up, each with a speech and determined to be heard. The other side, representatives of a public that we are told overwhelmingly supports gun control, managed to muster about four, none of whom seemed inclined to work the crowd. After stalling the proposal until the end of the meeting in the hopes that the gun extremists would go away, the Council resolutely licked their fingers, held them up to the breeze, and voted not to vote on the matter, sending those of us with prepared comments home triumphant, albeit unvented.

Now it will take a lot more time, energy, effort, and money, that is, several pounds of cure with no sure outcome, to undo what an ounce of prevention may have forestalled.

Gun owners who want to turn this offensive new infringement around could wait until someone has their gun “forfeited” and has “standing,” and then spend all kinds of money and time wending through the court system and the drawn-out appeals process that will add years of delay to the reclamation of property not worth the legal fees. And then lose.

Alternatively, the potential of a lawful and peaceful protest coinciding with a town food, music, or art festival might persuade the “city fathers” that their desire to publicize themselves with offensive ordinances isn’t worth the controversy and aggravation that could bring. Just raising the possibility during the “audience comments” section of a council meeting agenda where infringements are being salivated over may be all that is needed to have cooler heads prevail and table the motion.

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.