Ohio Court Strikes Down Categorical Prohibition on Gun Possession by People Under Indictment
An excerpt from Friday’s long decision in State v. Brown, written by Ohio Court of Appeals Judge Pierre Bergeron, joined by Judge Jennifer Kinsley:
In 2023, a grand jury indicted Mr. Brown on one count of robbery …. The court released Mr. Brown on bond with an electronic monitoring unit (“EMU”) ankle monitor, but it did not place any restrictions on his ability to possess a firearm. During a home visit by the EMU team, they located a loaded firearm in his apartment. This discovery spawned a new indictment pursuant to R.C. 2923.13(A)(2) for having a weapon under a disability.
The State’s robbery case against Mr. Brown eventually collapsed, which led to the dismissal of those charges against him. But …. the weapons under a disability case was still at play ….
[Under Bruen], we ask whether the disarmament imposed by R.C. 2923.13(A)(2), as applied in this case, falls within our Nation’s historical tradition of firearms regulation…. [T]he State offers no evidence of any specific historical tradition, dating back either to the founding or reconstruction era, of categorically disarming individuals based solely on the fact of their indictment—either in general, for violent crimes, or for robbery in particular….
Instead, the State tries to broaden the aperture, insisting that felonious behavior justifies a determination that someone cannot be trusted with firearms. In other words, the State suggests that history and tradition grant the states the power to disarm any person found to have engaged in felony conduct.
But … Mr. Brown … had only been indicted for a felony offense when the State charged him with possessing a weapon under a disability…. [A]ny categorical felon-disarmament rule would necessarily rest on the disarmed individual’s conviction. And a felony conviction, to the founding generation, meant at least two things: (1) trial by jury, and (2) a heightened burden of proof, understood today as proof beyond a reasonable doubt….
At the time when authorities discovered his weapon, Mr. Brown had received no jury trial on his robbery charge—only a one-sided grand-jury proceeding and subsequent bond hearing before a judge. Nor had he been adjudicated guilty under a reasonable-doubt standard; the grand jury only needed probable cause to indict, a threshold far lower than that necessary to convict…. The State, quite simply, fails to demonstrate any specific tradition in this country of disarming those indicted for crimes of violence….
Because they are preliminary, grand jury proceedings lack many of the touchstones of a criminal trial. Neither the defendant nor his counsel has a right to be present. Such proceedings are generally kept secret, and do not require juror-unanimity. In presenting to the grand jury, prosecutors are not encumbered by the Ohio Rules of Evidence, or the Fourth Amendment’s exclusionary rule, leaving them free to rely upon hearsay or evidence seized unlawfully. Further, the prosecutor may withhold from the grand jury material evidence that would be exculpatory to the accused. This is why, as the old adage goes, many believe that you can indict a ham sandwich.
The grand jury’s job is to evaluate probable cause that the crime occurred, in other words that the State “demonstrate[d] a ‘fair probability’ that a crime has been committed” and raised “‘more than a bare suspicion'” of the defendant’s guilt. A grand jury’s indictment, therefore, does not warrant a presumption that the defendant committed a crime, only that probable cause existed to think that he may have….
[A] determination of dangerousness can be grounds for disarmament, even if based upon something less than proof beyond reasonable doubt. Compare Rahimi (upholding weapon disability based on dangerousness finding in domestic-violence restraining order proceeding). To determine whether a given proceeding fits within our historical tradition of disarming dangerous persons, we, like the Court in Rahimi, consider whether the modern and founding-era proceedings are comparably tailored to discern the party’s dangerousness, and whether they employed at least comparable procedural protections in doing so.
To this end, the State analogizes the application of R.C. 2923.13(A)(2) in this case to founding-era surety laws, which featured prominently in Rahimi. In the late 18th century, justices of the peace and other judicial officials could, upon complaint, demand that “suspected persons find particular and special securities for their future conduct.” If, after taking evidence and hearing the parties, the justice found there was “due cause shown,” he could demand of the suspected individual sureties—usually sureties for the peace or for the good behavior….
The surety laws suggest that, in certain instances, individuals at the founding could be disarmed on less than conviction beyond a reasonable doubt. However, they remain a far cry from the disarmament at issue in this case. For example, the Court in Rahimi emphasized that firearm surety laws instructed a magistrate to take evidence and pr
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