Opinion
No. CV 21 943975
09-10-2021
IN RE: Hazem SULEIMAN
JOURNAL ENTRY
WILLIAM F.B. VODREY, JUDGE
The court now has before it petitioner's application for relief from weapons disability pursuant to R.C. 2923.14, filed February 12, 2021. Petitioner has had no further criminal convictions since an aggravated assault conviction in 1999. The State of Ohio, in its response filed March 11, 2021, suggested that petitioner is now eligible for relief from disability under Ohio law. The court held a hearing on the application on April 28, 2021. Atty. Shaun E. Whitehead appeared for and with petitioner, who briefly testified. The Prosecuting Attorney did not appear for the State of Ohio.
After due consideration, the court now finds that petitioner is ineligible to lawfully bear arms under the Brady Law, 18 U.S. Code 922. Even if he were eligible, there are important and compelling prudential reasons not to restore his right to bear arms.
Accordingly, and for the reasons set forth herein, petitioner's application is denied.
Opinion of the Court
In 1999, in case CR-98-362335-ZA, petitioner was convicted of aggravated assault, a felony of the fourth degree in violation of R.C. 2903.12, but has been convicted of no other offenses since then. At the hearing in this case on April 28, 2021, petitioner told the court under oath that he had no current intention of obtaining a firearm but wished to have the option to do so. He also believed that his legal disability prevented him even from carrying a small pocketknife, although he presented no statute or caselaw to support that view. Petitioner, a truck driver, testified that he did not feel at any particular risk in his work or home life such that he now needed access to firearms to defend himself. Tr. at 4-6.
The Second Amendment to the United States Constitution provides, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." For most of our country's history, and consistent with the admittedly somewhat ambiguous wording of the Second Amendment, the right to bear arms was recognized to be an individual right in the context of militia service. The Supreme Court of the United States long held that the right protected by the Second Amendment is not absolute, but is instead subject to government regulation. Robertson v. Baldwin , 165 U.S. 275, 281–282, 17 S.Ct. 326, 41 L.Ed. 715 (1897). Indeed, it was not until 2008 that the Court found, notwithstanding the first four words of the Second Amendment, that there is an individual right to bear arms, regardless of militia service. District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
The Supreme Court of Ohio, in keeping with longstanding Federal precedent, has held that the right to bear arms "is not an unlimited right and is subject to reasonable regulation." Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 47, 616 N.E.2d 163. Regulating firearms is a valid exercise of a municipality's police power, for instance, since such regulations bear a real and substantial relationship to the purposes of safeguarding the public. Mosher v. Dayton (1976), 48 Ohio St.2d 243, 358 N.E.2d 540 ; Hale v. Columbus (1990), 63 Ohio App.3d 368, 376, 578 N.E.2d 881 ; East Cleveland v. Scales (1983), 10 Ohio App.3d 25, 460 N.E.2d 1126.
R.C. 2923.14(D) provides:
Upon hearing, the court may grant the applicant relief pursuant to this section, if all of the following apply:
(1) One of the following applies:
(a) If the disability is based upon an indictment, a conviction, or an adjudication, the applicant has been fully discharged from imprisonment, community control, post-release control, and parole, or, if the applicant is under indictment, has been released on bail or recognizance.
(b) If the disability is based upon a factor other than an indictment, a conviction, or an adjudication, that factor no longer is applicable to the applicant.
(2) The applicant has led a law-abiding life since discharge or release, and appears likely to continue to do so.
(3) The applicant is not otherwise prohibited by law from acquiring, having, or using firearms.
R.C. 2923.14 permits, but does not require, a trial court to grant an application for relief from disability where an offender has presented evidence that the statutory requirements were complied with. State v. Brown , 8th Dist. Cuyahoga No. 96615, 2011-Ohio-5676, 2011 WL 5299304, ¶ 21. The General Assembly specifically provided that a court may, not that a court must , grant a petitioner relief in such cases. The court, therefore, has discretion, but its decision must be supported by the record. State v. Dozanti , 8th Dist. Cuyahoga No. 102158, 2015-Ohio-2276, 2015 WL 3647466, ¶ 9. "Wide discretion is not unlimited discretion," of course. Richmond Heights v. LoConti (1969), 19 Ohio App.2d 100, 113, 250 N.E.2d 84.
A conviction for a violent offense does not preclude granting an application for relief; however, it is a relevant circumstance to be weighed in exercising discretion. In re Chrosniak's , 8th Dist. Cuyahoga No. 105459, 2017-Ohio-7408, 96 N.E.3d 1083, ¶ 24. But the court's inquiry does not end there.
The Brady Law
Notwithstanding R.C. 2923.14, which allows for an Ohio court's restoration of gun rights for individuals who meet certain conditions, petitioner's 1999 aggravated assault conviction prohibits him from having a firearm under the Brady Law, a federal statute.
Pursuant to the Brady Law, 18 U.S.C. 922(g)(1), it is unlawful for any person
who has been convicted of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
In 1999, petitioner pled guilty to aggravated assault, a felony of the fourth degree under R.C. 2903.12. He was sentenced to a term of one year in prison. Although he was only sentenced to a single year, his conviction was for a crime that was punishable at the time by imprisonment for a term exceeding one year, which now bars him from having a firearm pursuant to 18 U.S.C. 922(g)(1).
Federal courts have repeatedly held that state crimes of violence, such as aggravated assault, need not have a domestic relationship as an element of the offense in order to disqualify a defendant from possessing firearms under the Brady Law. See United States v. Barnes (D.C. Cir. 2002), 295 F.3d 1354, rehearing and rehearing en banc den. (Nov. 4, 2002); United States v. Denis (1st Cir. 2002), 297 F.3d 25, 30-31 ; United States v. Kavoukian (2nd Cir. 2002), 315 F.3d 139 ; United States v. Nason (1st Cir. 2001), 269 F.3d 10 ; United States v. Chavez (11th Cir. 2000), 204 F.3d 1305, 1313-1314 ; United States v. Meade (1st Cir. 1999), 175 F.3d 215 ; United States v. Smith (8th Cir. 1999), 171 F.3d 617 ; United States v. Blosser (Oct. 4, 2002), D.Kans. No. 02-40074-01-JAR, 2002 WL 31261170 ; see also United States v. Ball (4th Cir. 2001), 7 Fed. Appx. 210, 213, 2001 WL 324624 (unpublished per curiam order), cert. den. (2001), 534 U.S. 900, 122 S.Ct. 226, 151 L.Ed.2d 162. It is axiomatic that a "statute should ordinarily be read to effectuate its purposes rather than frustrate them." Motor Vehicle Mfrs. Assn. of U.S., Inc. v. Ruckelshaus (D.C. Cir. 1983), 719 F.2d 1159, 1165, quoted in Barnes, supra , 295 F.3d at 1364. The Brady Law reflects Congress's strong desire to keep guns out of the hands of criminals, and should be read accordingly. This court agrees with the approach of the federal courts cited above. See also City of Cleveland v. Carpenter (2003), 126 Ohio Misc.2d 77, 803 N.E.2d 871.
Of course, as a state court, this court is bound by federal law. The Supremacy Clause of the United States Constitution, Article VI, Sec. 2, provides, "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." The Constitution and laws of the United States are just as much a part of the legal system of this state as are its own constitution and laws, and are just as binding. State ex rel. Donahey v. Edmondson (1913), 89 Ohio St. 93, 105 N.E. 269 ; Bowles v. Rugg (S.D. Ohio 1944), 57 F. Supp. 116, 119 ; State v. Bob Manashian Painting (Ohio Mun. 2002), 121 Ohio Misc. 2d 99, 106, 782 N.E.2d 701. In interpreting R.C. 2923.14, this court must bear in mind R.C. 1.47, which provides, "In enacting a statute, it is presumed that ... compliance with the constitutions of the state and of the United States is intended...." City of Cleveland v. Brooks (2012), ––– Ohio ––––, 974 N.E.2d 217.
Prudential considerations
Even were petitioner legally entitled to have his right to bear arms restored, there are important reasons why doing so would be imprudent and not in the public interest. The nation is already awash in guns, and arming a person previously convicted of a violent felony would do nothing to improve the situation.
The U.S. Centers for Disease Control and Prevention have determined that gun violence is a "serious public health problem" in this country. Firearm-related injuries are among the five leading causes of death for people ages 1-64 in the United States. The vast majority of gun deaths are not those of criminals being shot by innocent civilians defending themselves, but of people shot by those whom they know, and people who commit suicide with guns. An average of 200 people are killed and 472 injured by guns every weekend in the United States, not including suicides. That is nearly 3.4 people shot every hour, every weekend. CDC, Firearm Violence Prevention , https://www.cdc.gov/violenceprevention/firearms/fastfact.html (accessed June 11, 2021); see also Hemenway, David et al., "Gun Threats and Self-Defense Gun Use," Harvard Injury Control Research Center, Harvard T.H. Chan School of Public Health (accessed July 30, 2021); Cohen, Elizabeth; Bonifield, John and Lape, Justin, " ‘Something has to be done’: After decades of near-silence from the CDC, the agency's director is speaking up about gun violence," CNN, https://www.cnn.com/2021/08/27/health/cdc-gun-research-walensky/index.html (accessed Aug. 30, 2021). The Institute of Medicine and National Research Council of the National Academies agree, "Firearm violence poses a serious threat to public safety and welfare." Priorities for Research to Reduce the Threat of Firearm Violence (2013).
The Gun Violence Archive has determined that about 18,000 Americans were killed by guns in 2020, the highest death toll in over twenty years and a significant increase over the previous five years. GVA, https://www.gunviolencearchive.org/ (accessed June 11, 2021). Recent mass shootings in which four or more people were killed in public places match the highest three-month U.S. total going back to 1966. Elinson, Zusha, et al., "Recent spate of mass shootings is among worst in U.S. history," The Wall Street Journal (June 8, 2021), https://www.wsj.com/articles/recent-spate-of-mass-shootings-is-among-worst-in-u-s-history-11623161627 (accessed Aug. 25, 2021).
Men who own handguns are eight times more likely to die from suicide with a gun than men who don't, and women who own handguns are 35 times more likely than women who don't. Duff-Brown, "Handgun ownership associated with much higher suicide risk," Stanford Medicine News Center (June 3, 2020), https://med.stanford.edu/news/all-news/2020/06/handgun-ownership-associated-with-much-higher-suicide-risk.html (accessed Aug. 12, 2021). The mere presence of a firearm in the home increases the risk of homicide by a factor of eight. Martinelli, Haley, "Domestic Violence: Spotting Factors Associated with Heightened Risk," Bar Journal (Cleveland Metro. Bar Assn., July/August 2021), p. 20; Hitt, Amanda and McLain, Lynn, "Stop the Killing," 24 Wisc. J.L., Gender and Society 277 (2009).
Every year, tragically, nearly 1,300 children die from guns and many more are seriously injured. The American Academy of Pediatrics recommends that the best way to prevent gun-related injuries to children is to remove guns from the home. Nationwide Children's Gun Safety, https://www.nationwidechildrens.org/research/areas-of-research/center-for-injury-research-and-policy/injury-topics/general/gun-safety (accessed June 11, 2021).
The picture closer to home is also sobering. There have been three times as many murders, mostly by shootings, in Cuyahoga County in the first six months of 2021 than there were in the first six months of 2020. Ferrise, Adam, "Homicides in Cleveland's suburbs are going up following big-city trends in recent years," The Plain Dealer , June 30, 2021 https://www.cleveland.com/metro/2021/06/homicides-in-clevelands-suburbs-are-going-up-following-big-city-trends-in-recent-years.html (accessed September 2, 2021). Police in Cleveland alone investigated twelve shootings and three homicides in the city on a recent summer weekend. Justice, Camryn, "Cleveland police investigating 12 shootings, 3 homicides in 72 hours," News 5 Cleveland, https://www.news5cleveland.com/news/local-news/cleveland-metro/cleveland-police-investigating-12-shootings-3-homicides-in-72-hours (accessed July 30, 2021).
Even were petitioner entitled to a restoration of his right to bear arms under the Brady Law, then, important prudential concerns weigh against such a restoration.
Conclusion
The goal of justice is embodied in the ancient Latin dictum, Suum cuique tribuere — to render to each person his or her due. This court must weigh "the gravity of the public concerns served by [a] seizure [or the deprivation of a right, and] the degree to which the seizure [or deprivation] advances the public interest, and the severity of the interference with individual liberty." Michigan Dept. of St. Police v. Sitz (1990), 496 U.S. 444, 453, 110 S.Ct. 2481, 110 L.Ed.2d 412 ; see also Brown v. Texas (1979), 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357.
After due consideration, the court is not persuaded that restoring petitioner's right to bear arms would be lawful, appropriate or in the public interest. Even one gun, illegally and irresponsibly placed in the hands of a person earlier convicted of a violent offense, is one too many.
Petitioner's application for relief is therefore denied.
It is so ordered.