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Thread: Regarding the Legality of Ohio Agencies Which Post Against All Forms of Carry

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    Regarding the Legality of Ohio Agencies Which Post Against All Forms of Carry

    In the past week I have been involved in a discussion regarding the legality of open carry within the buildings operated and used by Ohio's state agencies. This discussion started with a question to another forum member regarding why he chose to disarm when entering the local BMV (Bureau of Motor Vehicles) office. Unfortunately, the forums provided both by Ohioans for Concealed Carry and Buckeye Firearms Association have hidden forum sections for open carry that are not available to the unregistered user. Do not ask my why they like to hide their light under a bushel, but since they do not share I thought it might be engaging to share the conversation here. I will use a series of posts to represent my portion of the discussion and the portions of discussion provided by the other members. My intent is to stir activism with my findings and hopefully entertain some discussion with regard to the validity of my train of thought.

    For those that want to know why I give a whit about Ohio, I am a native Ohioan who lived there the vast majority of my life to this point and still have relatives there, whom I visit occasionally.

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    It was and is my position as a non-lawyer based upon a review of Ohio Revised Code (ORC) that open carry of a handgun is perfectly allowable in most state owned properties, with distinct exceptions being those which are specifically called out where any weapon is prohibited or at least firearms, such as K-12 schools, courthouses, mental asylums and places serving alcohol (with some limited exception as the ORC allows). However, it was pointed out to me that these agencies post a sign using the wording of ORC 2923.1212 "Unless otherwise authorized by law, pursuant to the Ohio Revised Code, no person shall knowingly possess, have under the person’s control, convey, or attempt to convey a deadly weapon or dangerous ordnance onto these premises."

    Note here that 2923.1212 requires certain state agencies to conspicuously post a notice regarding the illegality of carrying a handgun or weapon at that facility. ( http://codes.ohio.gov/orc/2923.1212 )

    Here were my thoughts at this point ( http://codes.ohio.gov/orc/2923 ):

    What is apparent here though is that there is a discontinuity in the actual restrictions on where a person may carry (concealed or openly) and the wording of the signage mentioned in 2923.1212.

    Parts of 2923.12
    2923.121 restricts all carrying of a firearm within a school safety zone with limited exception.
    2923.122 restricts all carrying of firearms within places serving alcohol (Class D serving) with limited exception.
    2923.123 restricts all carrying of firearms into a courthouse.
    2923.124 defines the terms used for the discussion of concealed handguns.
    2923.125 defines the application and licsensing process for concealed handgun licenses.
    2923.126 lists the duties of a concealed handgun licensee, including places where a concealed handgun licensee is not authorized to carry a concealed handgun.
    2923.127-.1211 all deal with the process of obtaining, maintaining and operating the concealed handgun licensing program.

    2923.1212 recommends the signage to be used to ban concealed handgun carry and specifies where this signage must be posted, it is not the establishment of places in which a person may carry. Further by title this section deals only with the banning of concealed carry. The wording recommended here does not jive with the remainder of the code as it incorrectly states that all forms of firearm carry is forbidden in the places called out; however this wording is not supported by the remainder of 2923 and no authority is laid out for the banning of open carry of a firearm unless it is specifically called out in 2923.121 - 2923.126 (this one specifically dealing with concealed handguns). Note as well that there is no punishment called out for violation of 2923.1212, like there is for 2923.121-126; it is specifically a signage requirement with recommended wording. Note as well that the codification of punishment for violating a posting against the carrying of firearms is provided within 2923.126 and specifically relates to privately held premises, not public premises.

    To establish the full meaning of the law one must apply the rules of statutory construction. One of the rules of statutory construction establishes the practice that the titles of statutes limit the text of the statute itself. However, if the ORC specifically states that the titles have no limitation or existing Ohio case law establishes this precedent then the statutory rule does not apply. Here in Virginia our Code of Virginia explicitly states that the titles and headings have no effect upon the wording of the law itself, however that had to be established or the statutory construction rules would be in effect.

    Even if the titles themselves have no limitation to the remainder of the law text, I see nothing within the code that would limit someone from lawfully carrying an openly carried handgun in a BMV location or other location, because all that 2923.1212 holds is recommended wording for the postings that certain public agencies are required to post by law. However, it would be wise to ensure that the BMV, localities and other agencies know that the wording of the signage does not match the actualy codified authority granted to them by the legislature to bar the carrying of firearms. This is a task that some volunteers could tackle with the coordinating support of OFCC or BFA, in my opinion.
    Last edited by jmelvin; 10-21-2011 at 05:45 PM.

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    In response to my suggestion that I knew of nothing that would prohibit a person from carrying an openly carried firearm past the posted sign, because the agency has no authority to enforce such a restriction I was pointed to ORC 2911.21, which regarding trespassing in part states:

    (A) No person, without privilege to do so, shall do any of the following:

    (1) Knowingly enter or remain on the land or premises of another;

    (2) Knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the offender knows the offender is in violation of any such restriction or is reckless in that regard;

    (3) Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access;

    (4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified by signage posted in a conspicuous place or otherwise being notified to do so by the owner or occupant, or the agent or servant of either.

    (B) It is no defense to a charge under this section that the land or premises involved was owned, controlled, or in custody of a public agency.

    Thus my conclusion that it would be perfectly legal for a person to ignore the sign was shot down as that sort of action would result in a violation of the trespassing statute even though the agencies have no authority to maintain or post such a limitation.

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    Seeing that my conlcusion had been shown to be incorrect regarding ignoring the posted signage barring all forms of firearm carry (where otherwise there was no authority for barring open carry) I went back to the law to do some reading. It was then that I really noticed what I'd missed before. For the sake of ease I have listed here the first portion of 2923.1212 along with my summary below:

    (A) The following persons, boards, and entities, or designees, shall post in the following locations a sign that contains a statement in substantially the following form: “Unless otherwise authorized by law, pursuant to the Ohio Revised Code, no person shall knowingly possess, have under the person’s control, convey, or attempt to convey a deadly weapon or dangerous ordnance onto these premises.” :

    I've been looking this over and noticed that the wording of 2923.1212 doesn't say what we're thinking it says. There is nothing within that requirement that says that the language used is what must be followed. The statute only says that the postings must have substantively have the same form, not the same language. The legislature then goes on to give an example of the form they expect to see on the required notice, but they do not require the same language. This formation as shown ensures clarity of language used so that you don't see a hodge-podge of dfferent styles. Since it is assumed that the legislature chose their wordng to give a specific meaning you have to read what the wording says, not necessarily what you may think it says without following each word laid out. The following prohibition on a BMV door would follow the form required by 2923.1212, would meet the requiremets for signage and would represent the authority that was actually granted to the BMV.

    "Unless otherwise authorized by law, pursuant to the Ohio Revised Code, no person shall knowingly possess, have under the person’s control, convey, or attempt to convey a concealed handgun, concealed deadly weapon or dangerous ordnance onto these premises."

    By using the same language as that given in the example of the expected form, the BMV and other agencies attempt to regulate possession of firearms in ways which they are not authorized. We know that each word of a law has meaning and the word "form" was used for the purpose of expressing how the legislature expected the prohibiton to be presented.

    This is exactly part of the argument that I would pursue to use in court to force these agencies to change this wording to represent what they can actually ban.

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    Knowing that the Ohio Legislature has reserved for itself the crafting and enactment of firearms law as provided in the General Provisions of the ORC, Miscellaneous Section 9.68 ( http://codes.ohio.gov/orc/gp9.68 ) and has put in place a rule to allow for the recovery of court costs and reasonable attorney fees to those successfully challenging an ordinance, rule, or regulation conflicting with this section, it is my opinion that the Ohio State Government encourages challenges to rogue localities or agencies of which the BMV is one.

    Although one may not currently ignore the sign even open carrying without violating the trespass laws ( http://codes.ohio.gov/orc/2911.21 ) I do believe that Ohioans have the standing to challenge the BMV and other agency's too broad posting in court and win.

    Your thoughts?
    Last edited by jmelvin; 10-21-2011 at 06:02 PM.

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    Although neither in the Commonwealth of Virginia nor the State of Ohio, here's an interesting point:

    ORC 2911.21, which regarding trespassing in part states:

    (A) No person, without privilege to do so, shall do any of the following:

    (1) Knowingly enter or remain on the land or premises of another;

    (2) Knowingly enter or remain on the land or premises of another....
    The premises of a state agency are not the land or premises of another. They are state-owned, collectively owned by all. "Another" infers private ownership, which does not exist here.

    Ergo, ipso facto, et cetera, ad infinitum, and probably a few other Latin terms, the trespass law does not apply.

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    I am really at a loss as to what you are trying to convey. Under Ohio law there is only five places that open carry is prohibited. Those are:

    Court houses and buildings that are used as court houses, at any time.
    Police stations, but only to the extent that it has a state authorized holding cell of jail.
    Jail or prison.
    K-12 schools.
    State run mental hospitals.

    BMVs are contractors of Ohio, in other words private, trespass would seem to apply.

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    Being private contractors changes the whole picture.

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    Quote Originally Posted by color of law View Post
    I am really at a loss as to what you are trying to convey. Under Ohio law there is only five places that open carry is prohibited. Those are:

    Court houses and buildings that are used as court houses, at any time.
    Police stations, but only to the extent that it has a state authorized holding cell of jail.
    Jail or prison.
    K-12 schools.
    State run mental hospitals.

    BMVs are contractors of Ohio, in other words private, trespass would seem to apply.
    Are you responding to me or Statkowski? It is my understanding that only some BMV locations are operated by contractors, however the remainder of my discussion is germain to other state agency buildings for which open carry is not specifically forbidden.

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