The Volokh Conspiracy

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Ohio appellate court: Ban on firearms in restraining order may violate Second Amendment


Many civil protection orders, especially in domestic violence cases, ban the target from possessing guns. Courts generally uphold these as permissible restrictions, at least when the order is based on a finding that the target had committed a violent act or had threatened violence; see, e.g., U.S. v. Bena (8th Cir. 2011). But the matter is not entirely clear, especially since such orders can often be entered on just a finding of preponderance of the evidence, following relatively truncated procedures where the defendant doesn't have a lawyer. (This makes them different from felony convictions or even violent misdemeanor convictions, which require proof beyond a reasonable doubt, and in which the defendant generally has been represented by a lawyer.)

Here's an illustration of a possible right-to-bear-arms limit on such orders, from Cee v. Stone (Ohio Ct. App. Nov. 27, 2017):

On January 6, 2017, [Alexa] Cee filed a petition for an ex parte CPO [civil protection order], which was granted by the trial court. A full hearing on the petition was held on January 18, 2017. Following the hearing, the magistrate granted the CPO, which included restrictions on Stone's right to possess a firearm and to consume alcohol. Stone filed objections to the magistrate's decision, arguing that the magistrate erred in granting the CPO, erred in restricting his right to possess a firearm, and erred in restricting his consumption of alcohol. On April 13, 2017, the trial court overruled the objections regarding the granting of the CPO and the restrictions on the right to possess a firearm. However, the trial court granted the objection regarding the restriction on the consumption of alcohol and amended the CPO to reflect the change….

A petitioner for a domestic violence CPO must show by a preponderance of the evidence that the petitioner or the petitioner's family members are in danger of domestic violence. "Domestic Violence" is defined in pertinent part as "the occurrence of one or more of the following acts against a family or household member: (a) Attempting to cause or recklessly causing bodily injury; (b) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of [R.C. 2903.211 or 2911.211, which ban 'menacing by stalking' and trespass with the purpose to cause or threaten physical harm.]" The statute defines a girlfriend, who is or has cohabitated with her boyfriend, as a "person living as a spouse" and thus, is a household member….

Cee testified that on multiple occasions, [Brett] Stone had caused physical injury to her. At the time of the injuries, she was residing with Stone. Cee testified that when she tried to leave Stone, he became angry and started throwing her things outside, so she went to Stone's brother's home. When Cee refused to come out and talk to Stone, he started striking her vehicle, denting it and breaking the windshield.

Cee testified that based upon her history with Stone, she was "scared of him." She also indicated that she was afraid he would injure her dog. When Cee was admitted to the hospital to seek help for suicidal tendencies, Stone kept calling her even though she repeatedly stated she did not want to see him or talk to him. On rebuttal Cee testified that she did not feel like she could leave, that Stone was violent towards her when she tried to leave and that she was "scared for her life." As there was some competent, credible evidence that Stone had attempted to cause physical injury to Cee and that Cee was in fear of imminent serious physical harm, this court does not find that the trial court abused its discretion in granting the CPO….

[But the court held that the CPO condition that banned firearms possession was unconstitutional on the facts of this case:-EV] This court has previously addressed the imposition of additional restrictions in a CPO in the case of Maag v. Maag, 3d Dist. Wyandot No. 16-01-16, 2002-Ohio-1401. "While R.C. 3113.31 affords trial courts discretion in imposing restrictions corresponding to a CPO, this discretion is not limitless." "Restrictions must bear a sufficient nexus to the conduct that the trial court is attempting to prevent." This court has applied the requirement that the restriction on the right to bear arms be related to the conduct in Clementz-McBeth v. Craft, 3d Dist. Auglaize No. 2-11-16, 2012-Ohio-985. In Clementz-McBeth, we upheld the restriction because the testimony was that the respondent had threatened the petitioners that he would kill them while holding a gun and specifically stated that "I have a gun. I can kill you." Since the conduct specifically was related to firearms, this court found a sufficient nexus between the restriction on access to firearms and the conduct to be prevented. See also Elkins v. Reed, 5th Dist. Stark No. 2013CA0091, 2014-Ohio-1217 (holding that as there was a sufficient nexus between the threats made and the restriction on firearms, the restriction was permissible).

However, in cases where there was no sufficient nexus between the conduct and the firearm restriction, the restriction has not been permitted. See Newhouse v. Williams, 167 Ohio App.3d 215, 2006-Ohio-3075, 854 N.E.2d 565, ¶ 16 (3d Dist.) (holding that when no evidence was presented that respondent had threatened to use a deadly weapon or even owned a deadly weapon, a restriction on possession of a firearm was not supported by the evidence); Lerner v. Giolekas, 8th Dist. Cuyahoga No. 102768, 2016-Ohio-696, ¶ 51-52; and Boals v. Miller, 5th Dist. Ashland No. 10-COA-039, 2011-Ohio-1470.

Here, no testimony was presented that Stone even owned a firearm. No testimony was presented that he had ever threatened Cee with a deadly weapon. According to the trial court, the only reason that the restriction was present was because it was on the preprinted form. Without a nexus between the offending conduct and the restriction, Stone's constitutional right to bear arms may not be restricted….

Not all courts follow this approach, but I thought I'd note that some do. Note also that, though the case talks generally about a right to bear arms—which may in the abstract refer to the Ohio Constitution's right-to-bear-arms provision—Stone's argument was based on the Second Amendment, as are some of the precedents that the court cited.