The state now bears the burden of proof and is required to “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”.  See NY State Rifle and Pistol Association v. Bruen, 597 U.S. ____ (2022).

 

State v. Philpotts

2023 – Ohio – 213

Eighth District Appellate Court

Cuyahoga County, Ohio

January 26, 2023

On July 18, 2019, this court issued an opinion in State v. Philpotts, 2019-Ohio-2911, in which we affirmed the trial court’s decision finding O.R.C. §2923.13(A)(2) – Weapons Under Disability constitutional. On November 12, 2019, the Supreme Court of Ohio accepted discretionary review of the case. During the pendency of the appeal, on June 23, 2022, the United States Supreme Court decided New York State Rifle & Pistol Assn. v. Bruen, 597 U.S.___, (2022).

On December 9, 2022, the Supreme Court of Ohio vacated this court’s decision and remanded the cause to this court “for reconsideration in light of” Bruen. Prior to Bruen, a defendant challenging the constitutionality of a firearms statute bore the burden of proof. Further, in determining the constitutionality of such statutes, courts employed balancing tests. See Bruen, 142 S.Ct. 2111, at 2129-30. This case was briefed and analyzed in the trial court based on the standards of law in effect before Bruen. However, Bruen shifts the burden of proof and alters the court’s standard of review for determining the constitutionality of firearm-regulating statutes such as O.R.C. §2923.13 – Weapons Under Disability. The state now bears the burden of proof and is required to “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. at 2130. Further, Bruen changed the court’s standard of review by eliminating the application of any “means-end test such as strict or intermediate scrutiny” in its review. Id. at 2129.

Upon reconsideration, we are cognizant that the parties developed a record based upon their respective burdens of proof and the trial court considered the record and arguments and employed a different standard of review than what is now required pursuant to Bruen. Therefore, we vacate the judgment of the trial court and remand this case to the trial court so that the parties may develop the relevant record and the trial court can apply the correct burden of proof and standard of review as set forth in Bruen.

Judgment vacated, and cause remanded to the trial court for rehearing.

It is ordered that appellant recover of appellee costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.

Information for this article was obtained from State v. Philpotts, 2023 – Ohio – 213.

This case was issued by the Eighth District Appellate Court and is binding in Cuyahoga County, Ohio.

Lessons Learned:

  1. In September 2018 Mr. Delvonte Philpotts shot and killed Martez Thomas in Cleveland, Ohio. He was charged with various crimes to include Weapons Under Disability [WUD].  This charged stemmed from his possession of a firearm while under indictment for other weapons charges.
  2. During the pendency and appeals of Mr. Philpotts case, the U.S. Supreme Court issued NY State Rifle and Pistol Association v. Bruen, 597 U.S. ____ (2022). The holding in this case inhibited the WUD charge against Mr. Philpotts.  In Bruen, the U.S. Supreme Court held that the state now bears the burden of proof and is required to “[J]ustify its regulation by demonstrating that it is consistent with Nation’s historical tradition of firearm regulation.”.  Because of this language, as applied to O.R.C. §2923.13 – Weapons Under Disability, various prosecutors may not pursue charges for WUD if the suspect is only under indictment and does not have a conviction for violence.  Under O.R.C. §2923.13 (A)(2) it is states in pertinent part “Unless relived from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply … The person is under indictment for or has been conceited of any felony offense of violence.”. [emphasis added]
  3. On Friday December 9, 2022, the Supreme Court of Ohio held in State v. Philpotts, 2022 – Ohio – 4362 “The judgement of the court of appeals is vacated, and the cause is remanded to the court of appeals for reconsideration in light of NY State Rifle and Pistol Association v. Bruen, 597 U.S. ____ (2022)”. This holding was issued as Mr. Philpotts appealed the first decision of his WUD conviction to the Eighth District Appellate Court, see 2019 – Ohio – 2911.
  4. The Eighth District Appellate Court concluded this case with the holding “Judgment vacated, and cause remanded to the trial court for rehearing.”. This means that once the trial court reaches another decision based on the U.S. Supreme Court’s ambiguous language in Bruen that states in pertinent part “Nation’s historical tradition of firearm regulation”, the upcoming trial court decision can too be appealed.  Insert head-slapping emoji!  What should not be lost is that Mr. Philpotts is a convicted killer and is currently serving a thirty-one-year sentence.  See: https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A781772
  5. Since the language in O.R.C. §2923.13 – Weapons Under Disability is in direct conflict with the Supreme Court of Ohio’s application of NY State Rifle and Pistol Association v. Bruen, 597 U.S. ____ (2022), based on the Supreme Court of Ohio’s decision in Philpotts 2023 – Ohio – 213, I encourage officers to check with your local prosecutor before charging a suspect for WUD based singularly on a pending indictment.

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Robert H. Meader Esq.