by Dave Workman
Senior Editor

Hamilton County, OH, Common Pleas Court Judge Robert Ruehlman is expected to issue a ruling at the beginning of January in a lawsuit filed against Ohio’s law on carrying concealed handguns is unconstitutional.

Plaintiffs’ attorney William Gustavson told Gun Week he anticipates a favorable decision, but predicted that if the judge rules in favor of his clients, the defendants—including the city of Cincinnati, Hamilton County and the state of Ohio—will immediately file for a stay of judgment until the case can be decided by the state Supreme Court.

If Judge Ruehlman does decide for the plaintiffs, and declares the Ohio law—which essentially bans concealed carry—unconstitutional, the Buckeye State could wind up with a concealed carry scenario similar, if not identical, to that now existing in Vermont.

“If we win this case and it is upheld by the Supreme Court,” Gustavson stated, “we will be identical to Vermont. Law-abiding citizens will not be jailed for exercising their constitutional right.”

Plaintiffs include Chuck Klein, a Cincinnati private investigator, a local hairdresser, a fitness trainer, a factory worker and the owner of a pizza delivery business, with support from the Second Amendment Foundation (SAF), which owns Gun Week.

Under the Ohio Constitution, citizens have the right to bear arms for their defense and security. However, state statute makes it a felony to carry a concealed handgun unless you are a law enforcement officer in the performance of your duties. The statute includes several affirmative defenses which essentially say that if a prudent person would carry a concealed firearm while engaged in normal business activities or while in their own home, they are protected from prosecution.

Yet Judge Ruehlman, a former prosecutor, noted in court that he has never heard of a case where an individual stopped for carrying a concealed handgun had not been jailed and prosecuted. That was in response to testimony from Cincinnati Police Lt. Col. Richard Janke, who claimed that officers have used discretion and allowed someone to go free.

From the bench, Judge Ruehlman noted, “I’ve had numerous cases like that . . . and I’ve never had that happen. . . . If you have a concealed weapon, you are charged. I’ve not had one case when that discretion was used.”

Earlier, Judge Ruehlman had taken exception when Major J.P. Allen of the Ohio State Highway Patrol testified that state police officers are “encouraged” to not be armed while off duty. When grilled by Gustavson whether any Ohio state police officer has ever been arrested, like any other citizen, for carrying concealed while off duty, Allen took a moment, then recalled only one possible such arrest. Pressed for details, Allen said that arrest occurred in neighboring Kentucky.

He could recall no instance where an Ohio state police officer had been arrested for carrying concealed within the state, to which the judge noted, “That doesn’t count.”

Under questioning, Allen also admitted that the Highway Patrol enforces the gun law arbitrarily. He said that he had personally allowed some people to go, even though he had found loaded guns in their cars. This typically involved hunters.

Gustavson subsequently queried, “We’d . . . agree in terms of the way the Ohio State Highway Patrol enforces the concealed carry statute, and the improper transportation of a firearm in a motor vehicle statute, it really comes down to a matter of the arbitrary decision of whoever that officer might be who stops the person, right? It is an arbitrary decision for that particular officer?”

Over objections of defense counsel, Allen, compelled to answer the question, said, “Yes.”

Written closing arguments were presented to Judge Ruehlman in mid-December. He will reportedly issue a decision in the case by Jan. 10.
That will not be the end of the case, Gustavson acknowledged. While an affirmative decision would be binding on Ruehlman, it would not become binding on Hamilton County until the local Court of Appeals adopts the decision, the attorney explained. Even then, a ruling declaring Ohio’s concealed carry statute unconstitutional would still have to go before the state Supreme Court, and that could take anywhere from 18 months to two years, perhaps longer.

Gustavson said there is an argument that since the state is a defendant in the case, Ruehlman’s decision might be enforceable statewide. Again, that question would no doubt be taken to the state’s highest court.

“If they lose,” Gustavson said, “I am absolutely certain they will immediately seek a stay, and their argument will be simple. They will say this law has been in effect for 100 years or more, and that the case needs to go before the Supreme Court.”

There is also the possibility that the state legislature, which has legislation pending to legalize concealed carry, may act before a final decision is reached. A major stumbling block to passage of any of the legalized carry proposals that are, and have been, in the State House, has been the opposition of Republican Gov. Bob Taft. While claiming to support the right to keep and bear arms, Taft has said that he will veto any concealed carry bill that is opposed by the state’s law enforcement agencies.

However, the SAF-funded court challenge in Cincinnati presents the governor, the legislators and the state’s police with a dilemma. If Ruehlman decides for the plaintiffs and his decision is upheld by higher courts, they will have to decide if one of the proposals for legalizing or licensing concealed carry is preferable to one in which anybody and everybody could legally carry concealed as the state constitution indicates.Copy goes here.Copy goes here. Copy goes here.Copy goes here. Copy goes here.