Rather than call this legislation Permit-less Carry it should be titled the Victim Creation Act
Governor Mike DeWine and the 134th General Assembly Felon Protection Act
Rather than call this legislation Permit-less Carry it should be titled the Victim Creation Act
O.R.C. §2923.12 was recently revised through legislation and is commonly called Permit-less Carry. This article will review the changes and provide a view on how this will modify law enforcement consensual and investigative stops.
Now O.R.C. §2923.111 includes in pertinent part:
(B) Notwithstanding any other Revised Code section to the contrary:
(1) A person who is a qualifying adult shall not be required to obtain a concealed handgun license in order to carry in this state, under authority of division (B)(2) of this section, a concealed handgun that is not a restricted firearm.
What is a violation of this section?
O.R.C. §2923.111 (B)(3) Except as otherwise provided in this division, carrying concealed weapons in violation of division (B)(1) of this section is a misdemeanor of the second degree.
Who is NOT a qualified adult?
O.R.C. §2923.125 (D) – This is a synopsis – please consult the code for clarification.
Person is not twenty-one years old.
Convicted felon – no time limit.
Previous conviction for misdemeanor conviction of violence – excluding domestic violence and resisting arrest – three-year time limit.
Previous conviction for Domestic Violence – no time limit.
Previous conviction as a juvenile for offenses of violence with varying years of look-back.
Previous conviction of Assault on a Peace Officer – no time limit.
Person has a conviction of Resisting Arrest within the last ten years.
Person has an active warrant – titled Fugitive from Justice in the code.
Person is not under indictment or charged with a felony or pending charges for a misdemeanor offense of violence, drug offense, negligent assault or falsifying a Concealed Handgun License.
Previous conviction for drug offense, excluding minor misdemeanor – no time limit.
Person is not dependent on unlawful drugs, user of any controlled substance, or a chronic alcoholic. See U.S. v. Burchard, 580 F.3d 341 (2009) for parameters on controlled substances and firearm possession.
Person does not have a mental defect.
Person is not legally living in the United States or is a non-immigrant without a valid Visa. Or has renounced U.S. Citizenship.
Person does not have a suspended CCW license/certification from another state or the State of Ohio.
Person does not have an active protection order against him.
Person has a dishonorable discharge from the U.S. Military.
Most law enforcement officers are not going to know or have access to much of the information that inhibits a person from being a Qualified Adult under the code. This is another colossal failure of the 134th General Assembly and Governor Mike DeWine. It was as if the General Assembly sat down and intentionally created legislation to make our community less safe and law enforcement even harder.
Does a person have a duty to inform law enforcement that he is carrying a firearm?
Maybe. The code in two places states that the person has a duty to inform law enforcement that he is carrying a firearm when asked by law enforcement. However, the code does not mandate that the suspect has to tell law enforcement unless he is asked. The person must notify law enforcement when asked, if the person has been lawfully detained by the officer or is in a vehicle that has been lawfully stopped. Specifically, O.R.C. §2923.12 (B)(1) states in pertinent part “If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, before or at the time a law enforcement asks if the person is carrying a concealed handgun, knowingly fail to disclose that the person then is carrying a handgun…”. A “law enforcement purpose” will likely be litigated throughout Ohio’s appellate courts as there can be varying application of what is and what is not a law enforcement purpose. Until there is more clarification, law enforcement should interpret this as a non-consensual encounter. If law enforcement stops an individual under a consensual encounter, asks the person if he is carrying a firearm and he lies, then I do not believe the person can be successfully prosecuted. The rationale is that a consensual encounter is not a law enforcement purpose.
The second section in this code that mandates a person must tell law enforcement he is carrying a firearm in a vehicle is located under O.R.C. §2923.111 (E)(1). Which states in pertinent part “Before or at the time an law enforcement officer asks if the person is carrying a concealed handgun, knowingly fail to disclose that the person then possesses or has a loaded handgun in the motor vehicle, provided that it is not a violation of this division if the person fails to disclose that fact to an officer during the stop and the person already notified another officer of that fact during the same stop.”. This does not apply to a law enforcement officer acting within the scope of the officer’s duties. See (F)(1)(a). Violation of this statute is a second-degree misdemeanor.
Selected application of the statute revisions:
O.R.C. §2923.12 (A) states No person shall knowingly carry or have, concealed on the person’s concealed ready at hand, any of the following: (2) A handgun. [emphasis added]
Officer stops a vehicle for a traffic violation and there is a movement within the vehicle as the vehicle stops. On first approach and contact there are four on board. Officer asks driver for license and if the driver is armed. Driver states that she has firearms [plural] in her purse setting on the center console. Information soon determines that the three other vehicle occupants are all convicted felons and there are three handguns [that are not restricted firearms] in the purse of the driver who has no criminal convictions and for all other practical purposes is a Qualified Adult. Can the driver/Qualified Adult have more than one firearm as O.R.C. §2923.12 (A)(2) states in pertinent part “A handgun”?
Officer stops a vehicle with one Qualified Adult and three convicted felons. The one Qualified Adult has a purse with three firearms.
Can the Qualified Adult be charged with having more than firearm?
Officer stops a vehicle for a traffic violation with only one on board. On first approach officer requests driver’s license and asks if the driver has any firearms. Driver says he is presently armed with a handgun which is on his right hip in a holster that is not a restricted firearm. Driver produces license which shows he is a resident of Pennsylvania and for all other purposes is a Qualified Adult. Can this driver carry his handgun under Permit-less Carry, even though he is in Ohio but is a resident of another state?
O.R.C. §2923.12 (B)(1)
If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, fail to promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been … is carrying a concealed handgun.
O.R.C. §2923.12 (F)(3)
Carrying a concealed weapon in violation of division (B)(1) of this section is a misdemeanor of the second degree.
Officer has a consensual encounter with a person on the street, who it is later determined to be a Qualified Adult. Officer asks the person if he is carrying a concealed handgun. The person lies to the officer and says no but is actually carrying a concealed handgun that is not a restricted firearm. Can the person be successfully charged and prosecuted under O.R.C. §2923.12 (B)(1) and O.R.C. §2923.12 (F)(3)?
Answers to these and many more predictable Permit-less concealed handgun encounters can be delivered to your agency. Contact me for training at https://www.objectivelyreasonable.com/contact/.
To read the entire statute see:
- What makes this revised statute so dangerous for the community is that predators can now roam the streets with concealed firearms. Prior to this avante garde law change, upon the establishment that a suspect is carrying a concealed weapon and is not a valid CCW licensee, law enforcement could pat down the suspect for weapons. If a suspect was not a law enforcement officer or a CCW licensee then possession of a concealed handgun was a felony. Now, law enforcement must establish more information or evidence that the suspect is carrying a concealed weapon AND has committed or is about to commit a crime to lawfully pat down the suspect. Even at this point, the most a suspect can be charged with is a second degree misdemeanor. This is why this legislation is The Felon Protection Act.
- This law change limits when law enforcement can investigate predators carrying firearms. For example, if a caller advises dispatch that a person is carrying a concealed firearm without any additional criminal information, then the behavior is lawful. If the behavior is lawful, should law enforcement even be dispatched? Additionally, if a person appears to have a youthful appearance and the officer can see the outline of a handgun underneath the person’s shirt, the mere youthful appearance would not be a foundation of an investigative detention. If the officer knows the person is under twenty-one years old then the officer may be able to detain and pat down the person. However, if the age is undeterminable by the suspect’s appearance, that in and of itself, may not be a lawful detention.
- When law enforcement conducts an investigative detention or a traffic stop, the officer should ask the detainee if he is presently armed. Even though a violation is a second degree misdemeanor it will provide an arrestable offense if the suspect is untruthful.
- The negative impact of this law change will mostly be seen in high crime areas where law enforcement can prevent violence by pat downs because carrying a concealed firearm was a felony. This law will also significantly reduce the number of weapons convictions predators will have when they are convicted of future predatory violent acts, thereby reducing sentencing and returning predators to the community … to create more victims. That is why this legislation can be titled the Victim Creation Act.
- Criminals will never follow the law and law-abiding people will often carry a firearm lawfully, no matter the law. Consequently, this law change was unnecessary and now promotes more violence in violent areas because this legislation ultimately will protect felons.
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