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Ohio Court Strikes Down Categorical Prohibition on Gun Possession by People Under Indictment
A few months ago, the Sixth Circuit upheld the federal categorical prohibition on gun acquisition and transportation by people under indictment.
An excerpt from Friday's long decision in State v. Brown, written by Ohio Court of Appeals Judge Pierre Bergeron, joined by Judge Jennifer Kinsley:
In 2023, a grand jury indicted Mr. Brown on one count of robbery …. The court released Mr. Brown on bond with an electronic monitoring unit ("EMU") ankle monitor, but it did not place any restrictions on his ability to possess a firearm. During a home visit by the EMU team, they located a loaded firearm in his apartment. This discovery spawned a new indictment pursuant to R.C. 2923.13(A)(2) for having a weapon under a disability.
The State's robbery case against Mr. Brown eventually collapsed, which led to the dismissal of those charges against him. But …. the weapons under a disability case was still at play ….
[Under Bruen], we ask whether the disarmament imposed by R.C. 2923.13(A)(2), as applied in this case, falls within our Nation's historical tradition of firearms regulation…. [T]he State offers no evidence of any specific historical tradition, dating back either to the founding or reconstruction era, of categorically disarming individuals based solely on the fact of their indictment—either in general, for violent crimes, or for robbery in particular….
Instead, the State tries to broaden the aperture, insisting that felonious behavior justifies a determination that someone cannot be trusted with firearms. In other words, the State suggests that history and tradition grant the states the power to disarm any person found to have engaged in felony conduct.
But … Mr. Brown … had only been indicted for a felony offense when the State charged him with possessing a weapon under a disability…. [A]ny categorical felon-disarmament rule would necessarily rest on the disarmed individual's conviction. And a felony conviction, to the founding generation, meant at least two things: (1) trial by jury, and (2) a heightened burden of proof, understood today as proof beyond a reasonable doubt….
At the time when authorities discovered his weapon, Mr. Brown had received no jury trial on his robbery charge—only a one-sided grand-jury proceeding and subsequent bond hearing before a judge. Nor had he been adjudicated guilty under a reasonable-doubt standard; the grand jury only needed probable cause to indict, a threshold far lower than that necessary to convict…. The State, quite simply, fails to demonstrate any specific tradition in this country of disarming those indicted for crimes of violence….
Because they are preliminary, grand jury proceedings lack many of the touchstones of a criminal trial. Neither the defendant nor his counsel has a right to be present. Such proceedings are generally kept secret, and do not require juror-unanimity. In presenting to the grand jury, prosecutors are not encumbered by the Ohio Rules of Evidence, or the Fourth Amendment's exclusionary rule, leaving them free to rely upon hearsay or evidence seized unlawfully. Further, the prosecutor may withhold from the grand jury material evidence that would be exculpatory to the accused. This is why, as the old adage goes, many believe that you can indict a ham sandwich.
The grand jury's job is to evaluate probable cause that the crime occurred, in other words that the State "demonstrate[d] a 'fair probability' that a crime has been committed" and raised "'more than a bare suspicion'" of the defendant's guilt. A grand jury's indictment, therefore, does not warrant a presumption that the defendant committed a crime, only that probable cause existed to think that he may have….
[A] determination of dangerousness can be grounds for disarmament, even if based upon something less than proof beyond reasonable doubt. Compare Rahimi (upholding weapon disability based on dangerousness finding in domestic-violence restraining order proceeding). To determine whether a given proceeding fits within our historical tradition of disarming dangerous persons, we, like the Court in Rahimi, consider whether the modern and founding-era proceedings are comparably tailored to discern the party's dangerousness, and whether they employed at least comparable procedural protections in doing so.
To this end, the State analogizes the application of R.C. 2923.13(A)(2) in this case to founding-era surety laws, which featured prominently in Rahimi. In the late 18th century, justices of the peace and other judicial officials could, upon complaint, demand that "suspected persons find particular and special securities for their future conduct." If, after taking evidence and hearing the parties, the justice found there was "due cause shown," he could demand of the suspected individual sureties—usually sureties for the peace or for the good behavior….
The surety laws suggest that, in certain instances, individuals at the founding could be disarmed on less than conviction beyond a reasonable doubt. However, they remain a far cry from the disarmament at issue in this case. For example, the Court in Rahimi emphasized that firearm surety laws instructed a magistrate to take evidence and provide an opportunity for the accused to be heard. As noted above, Mr. Brown had no right to be heard or to present evidence in the proceeding before the grand jury that led to his indictment, and the prosecutor was not obligated to present any evidence favorable to him….
In this case, no judicial official or body found that Mr. Brown posed a prospective danger with a weapon. In fact, the one judicial officer who scrutinized his conduct let him walk free on bond without any firearm restriction. While the State insists that simply being accused of a crime warrants stripping someone of his Second Amendment rights, it fails to validate this conclusion with actual authority from the historical record.
At a bail determination, the trial judge should consider "the weight of the evidence against the defendant" and the "confirmation of the defendant's identity," as well as his history and life conditions, before imposing conditions of pretrial release. Thus, when considering whether to disarm the defendant as a condition of bail, the trial court can distinguish between a defendant caught on video firing a weapon into the ceiling of a bank, and a defendant whose indictment was founded on the testimony of self-interested informants and coincidental circumstances? So, too, might it treat an individual with a history of violent or erratic conduct differently from an individual with no criminal record and a history of responsible hunting or sport-shooting.
As best we can glean from the record, the trial court in Mr. Brown's robbery case considered the appropriate bail factors and not only allowed him to go free subject to an ankle monitor, but it declined to impose any restriction on his possession of firearms. We would not expect an inherently dangerous person to be treated this way….
The State offers two additional, non-historical arguments in support of its application of R.C. 2923.13(A)(2) to Mr. Brown. First, it points to a "robust majority" of courts that have considered and upheld 18 U.S.C. 922(n), the federal pretrial-disarmament statute, in the wake of Bruen. See, e.g., U.S. v. Posada (W.D.Tex. 2023) (collecting cases). Nearly all of these are trial court decisions, and are therefore nonprecedential even within their respective jurisdictions.
In determining what persuasive weight to accord these federal decisions, we must recall that Section 922(n) imposes a much less invasive restriction upon gun ownership. While the federal statute embraces those indicted for a broader array of crimes than R.C. 2923.13(A)(2), 922(n) only forbids those it covers "to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Simple possession is not covered under 922(n), leaving ample room for a defendant who already owned a weapon to keep it in his home for self-defense (akin to Mr. Brown's situation in this case).
Ohio's statute sweeps more broadly. R.C. 2923.13(A) renders it a crime to "knowingly acquire, have, carry, or use any firearm" if under a disability. And R.C. 2923.13(A)(2)'s and (A)(3)'s indictment-based disabilities turn every firearm a defendant owns into contraband the second he is indicted. Many of the federal decisions recognize the salience of such a distinction, emphasizing that Section "922(n) is not a wholesale prohibition on the ability keep and carry firearms; indicted individuals are prohibited only from obtaining new firearms or moving firearms already in their possession."
Further, many of these federal decisions addressing Section 922(n) rely upon analogy to the surety laws—the very analogy we have already considered and rejected with respect to R.C. 2923.13(A)(2). Most importantly, these federal cases seldom address the relevance of the more individualized and historically pedigreed process of disarming individuals as a condition of pretrial release to the Bruen inquiry. And why would they, when Section 922(n) imposes only a restriction on transfer and transport, as opposed to the wholesale pretrial disarmament that federal judges may impose on a case-by-case basis under 18 U.S.C. § 3142(c)(1)(B)(viii)?
Finally, the State contends that, because "modern and historical detention laws are far more burdensome than the prohibition against weapon possession while indicted," such a disarmament must surely be constitutional (emphasis omitted). This logic parallels the reasoning of the Supreme Court in its pretrial-asset-seizure cases, like Kaley v. United States (2014), which held a grand jury's indictment to be conclusive as to a defendant's plausible culpability in that context. Some district courts, like the District of Maryland in Jackson, have extrapolated the reasoning of Kaley to suggest that, because an indictment can take away your liberty, it can surely take away your guns.
This comparison to pretrial detention, however, ignores that the State's power to detain pretrial is circumscribed by the accused's right to bail. The bail hearing ensures an individualized determination of flight risk and dangerousness before a defendant can be released or detained. And while the government may hold some defendants without bail, it may not do so without careful consideration. Even under the restrictive federal regime of the Bail Reform Act of 1984, a defendant detained based on probable cause may be presumptively detained pending trial for certain crimes, but nevertheless must receive "a full-blown adversary hearing," at which he may attempt to rebut that presumption. Such an individualized regime contrasts sharply with R.C. 2923.13(A)(2), which demands no prompt hearing and offers no presumption to rebut; the minute you're indicted for a "violent felony" in Ohio, you must disarm.
More importantly, the State's greater-includes-the-lesser argument reveals nothing about our Nation's history and tradition of firearms regulations—and it smacks of the very interest-balancing that Bruen sought to quash in the Second Amendment context….
Judge Marilyn Zayas dissented, arguing that the court should remand for the trial court to analyze the issue in light of Rahimi. The majority in turn responded that the State's reply brief "thoroughly addressed" Rahimi, "[n]either party requested a remand for further record development in light of Rahimi, and we sit in as good a spot as the trial court to evaluate its impact."
Here's an excerpt from a recent Sixth Circuit decision (U.S. v. Gore) upholding § 922(n), though in part on the grounds that § 922(n) prohibits acquisition of guns and not just possession; the Ohio Court of Appeals decision quoted above didn't cite Gore:
The statute prohibits receiving, transporting, or shipping a firearm, but only during the stressful and fraught period between indictment and resolution of a criminal case. There are some obvious justifications for regarding this as an exceptional time: if a person obtains a gun once indicted, it might give rise to an inference that he has nefarious intentions toward a witness or victim, or toward law enforcement or court personnel; and if a person ships or transports a gun under the same circumstances, it could suggest that he wants to dispose of evidence or get a weapon into the hands of another for illicit purposes. In other words, § 922(n) furthers public safety and protects the integrity of the criminal process in the time between charge and conviction or acquittal. As for the burden, § 922(n) works a temporary, and limited, deprivation of Second Amendment rights. By its terms, it applies only while an indictment is pending. And it does not prohibit possessing firearms. So an indicted person who already possesses a firearm may continue to do so—and, therefore, will not be prevented from enjoying the "central component" of the Second Amendment right, the right of armed self-defense.
The "why" and "how" of § 922(n) are relevantly similar to our nation's tradition of pretrial detention. "The American colonists carried with them the basics of criminal bail procedure" from England. The purposes of that system were both to ensure the defendant's appearance at trial and to keep the public safe in the meantime. The inherited English rule divided offenses into three categories: nonbailable offenses, offenses for which a judicial officer had discretion to bail, and offenses for which a defendant offering sufficient sureties was entitled to bail. Serious crimes—like treason, murder, burglary, arson, and horse-stealing—put a defendant in the nonbailable category. So those defendants were detained before trial.
In the 17th century, colonial authorities in Massachusetts and Pennsylvania reformed their approach to bail. Under this reformed approach, pretrial defendants had a right to bail "by sufficient sureties, except in capital cases where the proof is evident or the presumption great." Eventually, the reformed approach would emerge as the "consensus" rule across the young nation. But at the time the Bill of Rights was ratified, about half of the States still followed the English model, while the federal government and the remaining States opted for the reformed path.
Although the reformed rule provided a right to bail as a general matter, the exception for capital offenses was significant. "[A]ll serious crimes at the time of the founding" were punishable by death. So, even in the jurisdictions following the reformed approach, defendants facing serious charges did not enjoy a right to bail. They could instead be detained—and, so, disarmed—while they awaited trial.
Section 922(n)'s prohibition is comparable to the founding-era history of pretrial detention "in both why and how it burdens the Second Amendment right." Like pretrial detention, § 922(n) restricts indicted persons' rights, during the fraught period between indictment and trial, for the purpose of furthering public safety and protecting the integrity of the criminal process. And just as bail was denied outright only for defendants facing serious charges, so § 922(n) is triggered only by indictment for a felony charge. Section 922(n) also imposes a comparable—indeed, "less heavy-handed"—burden. This provision simply restricts defendants' ability to receive, ship, or transfer firearms—it says nothing about possession. So for those who already possess one or more firearms, § 922(n) represents only a slight burden on the Second Amendment right; and even for those who do not, § 922(n)'s prohibition is a lesser burden than detention or permanent disarmament. Cf. Rahimi ("[I]f imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible.")….
Gore offers two reasons to doubt the analogy to pretrial detention, but neither ultimately undermines it. First, § 922(n) applies automatically upon indictment for a felony, without any individualized determination of risk. But that does not defeat § 922(n)'s facial validity. In Rahimi, the Court was careful not to "suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse." That is what Congress has done in enacting § 922(n)—it has defined, by their circumstances, a category of persons who, in its judgment, present special risks. And that categorical judgment is comparable to founding-era approaches to pretrial detention…. [T]he uniform founding-era practice was to categorically deny a right to bail to persons charged with certain serious offenses, and it seems that most jurisdictions effectively required pretrial detention in serious cases….
That leads to Gore's second objection to the pretrial-detention analogy—he suggests that § 922(n)'s felony-indictment trigger is too broad in comparison to the class of nonbailable crimes at the founding. The Supreme Court has observed, after all, that "[m]any crimes classified as misdemeanors, or nonexistent, at common law are now felonies." We need not dwell on that question, however. We confront a facial challenge, so our inquiry ends if § 922(n) "is constitutional in some of its applications." It is. At a minimum, it is plainly constitutional as applied to those accused of the sorts of offenses that required pretrial detention at the founding.
That is not to say that a mismatch between the founding era's "serious" or "capital" crimes and today's felonies would necessarily preclude § 922(n)'s application to those indicted for less "serious" felonies today. After all, § 922(n) and founding-era pretrial detention need not be perfect "twin[s]." Moreover, even a founding-era defendant released on bail was not relieved of all burdens—he was answerable to his sureties to both "personally appear at … court" and "in the mean time keep the peace and be of good behaviour." And those sureties were expected to "render him up for incarceration if they felt that he was becoming untrustworthy." So § 922(n)'s limited prohibitions might amount to a burden similar to founding-era pretrial release, making its application to defendants indicted on less "serious" charges permissible.
Ultimately, however, Gore has not brought an as-applied challenge to § 922(n). All we need to decide is whether the provision is facially valid. It is. So the district court properly denied Gore's motion to dismiss this count of the indictment.
For the federal district court cases dealing with § 922(n), see U.S. v. Posadaand the cases it cites; as the Ohio court notes, most of those cases uphold § 922(n), though a couple hold it unconstitutional.
Connor Reilly represents defendant.
