Ohio Police Chief asks Ohio Attorney General Rogers to Educate Police on Legality of Open Carry

1. As a general matter of law, the right to bear arms is a fundamental, individual right guaranteed by Section 4, Article 1 of the Ohio Constitution.* This right, however, is not absolute, and is subject to regulation.

2. Beyond the rights granted by the Ohio Constitution, Revised Code § 9.68 provides that, unless otherwise prohibited by State or Federal law, any person “may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.” Specifically included in this statute is the right to openly carry a firearm. See Revised Code § 9.68(C)(1). There is no requirement that the person first get a license, get permission or show any need prior to openly carrying a firearm.

3. Officer safety must always be a paramount concern and goal for peace officers. However, officers should not consider openly carrying a firearm as per se suspicious or criminal conduct. Openly carrying a firearm does not automatically equate into a Disorderly Conduct (R.C. § 2917.11) or Inducing Panic (R.C. § 2817.31) charge. To take this position would be tantamount to taking a position that a person may not exercise their statutory or constitutional rights without risking constant “Terry stops” or police arrest. This position is obviously problematic. Instead, the officer or the dispatcher needs to look at the totality of the circumstances. Is there reasonable, articulable suspicion that criminal conduct is occurring? What are the facts and circumstances, beyond the mere presence of a firearm, that indicate it is reasonable to suspect criminal activity?

Simply reacting to every single “man with a gun” situation as an automatic “Terry stop” or felony stop will clearly have a chilling effect on the exercise of these rights by citizens, thus potentially opening the officer and the department up to civil liability. Officers and dispatchers should carefully question informants when being dispatched on these types of calls to verify what allegations of further suspicious or criminal conduct, if any, the suspect is engaged in. In a non-dispatch or informant situation, where the officer directly observes the conduct of the suspect, the officer should be ready to articulate what factors beyond the mere carrying of the firearm prompted the official police interaction with the suspect.

4. Nothing in Ohio’s concealed carry law requires a license holder to carry their firearm strictly concealed. Rather, Ohio’s concealed carry law is mostly a series of exceptions to the existing criminal statutes. For instance, see Revised Code § 2923.12(C)(2). The main statute, § 2923.12(A)(2), prohibits carrying a concealed handgun, and section (C)(2) simply states that the main statute does not apply to someone with a Concealed Handgun License. While some states do require strict concealment by their license holders, Ohio has not taken this approach. Further, there is nothing in Ohio’s concealed carry law that requires a license holder to forfeit their constitutional and statutory right to bear arms in order to obtain a Concealed Handgun License. Thus, a person who has been issued a Concealed Handgun License may still openly carry a firearm if they chose to do so, provided all other laws are observed.

5. Nothing in this article should be construed to mean that someone may openly carry a firearm where the person is otherwise prohibited from carrying a firearm. For instance, if the person is under firearm disability pursuant to Revised Code § 2923.13, the person may not openly carry a firearm, as the person cannot legally possess a firearm. Further, if the area where the open carry occurs in a prohibited area, such as a courthouse as provided for by Revised Code § 2923.123 or in a car as provided for by Revised Code § 2923.16, then the person may not openly carry the firearm.

* See Klein v. Leis, (Ohio 2003) 99 Ohio St.3d 537, 539 and Arnold V. Cleveland, (Ohio 1993) 67 Ohio St.3d 35, 46.
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