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Handgun allowed in Englewood parks, pocket knife may be confiscated
Kent Maynard of Englewood has filed suit against the city claiming it infringed on his right to openly carry a handgun at the 2007 Fine Arts Festival. The city changed its ordinance two months after the festival. Staff photo by Doug Page
By Doug Page, Staff Writer 11:22 PM Saturday, September 5, 2009
ENGLEWOOD — It is legal, as it stands under state law, for someone to carry a holstered, loaded handgun into a city park.
But carry a pocket knife into the same park, and you stand the chance of having it confiscated under a city ordinance. You would be ordered to leave the park and possibly fined.
“There is a different law out there that trumps our local ordinance,” Police Chief Mark Brownfield said. “That law is very specific. It deals with the open carry of a firearm. It doesn’t say the open carry of a pocket knife or a slingshot.”
Englewood hasn’t used its ordinance to prosecute anyone for pocket knives or slingshots, but the example shows how state and local laws can sometimes work in opposition. Two years after the state amended its concealed-carry law, there is confusion in some cities about just how it should be enforced.
A citizen took Englewood to court in March after he was stopped and questioned during the 2007 Englewood Fine Arts Festival at Centennial Park. The man, Kent Maynard, was carrying a 9 mm Beretta on his belt in plain sight. Maynard sued even after the city amended its ordinance to allow handguns in public, saying he was deprived of his constitutional rights.
The case is pending, and in the legal briefs the city has challenged the state law as it applies to this case. It says the state’s concealed-carry law makes no specific mention of “open carry” of a firearm, which means the city is within its rights to prohibit the open carry of firearms in city parks under the Home Rule exemptions of the Ohio Constitution.
The only mention of open carry appears in a 2007 law — a companion to the amended concealed-carry law — that formalizes a citizen’s right to bear arms.
“We are not challenging the constitutionality of the law,” said Cynthia McNamee, attorney for the city. “We’re saying the state law does not give the proper guidance required.”
Maynard, who holds a concealed-carry license, disagrees, saying he was wrongfully threatened with arrest unless he concealed his handgun.
“I carry (a weapon) openly 90 to 95 percent of the time for self-defense and because it is my right to do so,” said Maynard, who characterized himself as a Second Amendment activist.
His suit seeks in excess of $25,000 in damages. “Sadly,” he said, “the only thing local governments understand are lawsuits and money.”
This much is not in dispute: On Aug. 12, 2007, police stopped and questioned Maynard about a handgun visible to festivalgoers. Englewood City Manager Eric Smith said officers were answering a complaint from a citizen about the gun.
“It was certainly in the purview of a police officer to question people walking around with a handgun in open view,” Smith said.
But Maynard said that under state law, officers had no right to threaten him with arrest. “This is about the City Council’s arrogance, and the city’s attempt to try to intimidate me to stop openly carrying my firearm,” he said. He agreed to conceal the weapon, he said, to “avoid being arrested and further harassed and detained.”
Roughly two months after the incident, the city passed an amended ordinance to delete a reference to firearms. According to Maynard, that’s all he wanted.
That and an apology.
But after the city amended its ordinance it started getting letters from Maynard’s attorney. The first, a week after the ordinance was amended, asked for $125,000 “as compensation for his damages and attorney’s fees.” The city was given a Nov. 16, 2007, deadline.
A Nov. 19 letter from Maynard’s attorney noted the city had amended its ordinance and stated Maynard was willing to settle his differences with the city for $15,000. A final letter, dated Feb. 15, 2008, asked for $25,000 in damages or the threat of a lawsuit would be fulfilled.
“We were willing to settle this,” said Jared Wagner, Maynard’s attorney. “All he really wanted was an apology.”
There was no apology, Smith said, because the city believed it had acted in an appropriate manner.
Maynard filed his lawsuit on March 19, 2009.
Englewood isn’t the first city to raise questions about Ohio Revised Code, 9.68, the state’s right to bear arms law. An appeal of a lower court’s decision to deny a challenge by the city of Cleveland on constitutional grounds is currently before the state’s 8th District Court of Appeals.
Englewood’s argument centers around the definition of a “general law” under the state’s exemptions for Home Rule governments, of which Englewood is one. Those exemptions hold that local self-government regulations and police powers are best served by local governments and not the state. That is as long as those ordinances are not in conflict with the general laws of the state.
Maynard points out that without a general law, he and other concealed-carry license holders face possible prosecution if different jurisdictions enact separate ordinances.
On this the city agrees. The concealed-carry law statutes are general laws under the state Supreme Court decisions. But open carry is not, it maintains, and nowhere in the law are there regulations guiding its enforcement.
“The only thing R.C. 9.68 does is to create a vacuum of uncertainty as to the open carrying of firearms in Ohio and to threaten Ohio municipalities with the payment of attorneys’ fees if they dare to remedy the oversight,” the city argues in its response to the lawsuit.
In a brief filed in the case, Attorney General Richard Cordray argued against the city, saying the law is “constitutional in all respects” and “a valid general law of the state of Ohio.”
If its other arguments fail, Englewood still hopes to prevail on its contention that the park is a school safety zone. Under state law, the carrying of weapons in a school safety zone is illegal.
Englewood notes that Northmont school district groups such as marching bands, cheerleaders and Science Olympiad use Centennial Park for their various activities.
But Wagner said the argument is laughable, pointing out that all weapons — concealed or openly carried — are prohibited in school safety zones. If it was illegal to carry an open weapon that day at the festival, then why did police insist that Maynard conceal his weapon?
“That argument makes no sense,” he said.
Both sides are continuing to prepare briefs on the various motions before a Montgomery County Common Pleas judge decides whether the suit will proceed to trial.