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Ohioans for Concealed Carry sued the City of Cleveland in order to strike down the City’s new gun ordinance because it is preempted by state law.  See Ohioans for Concealed Carry, Inc. v. City of Cleveland, Cuyahoga County Docket Number CV-15-844547.  ORC 9.68 states:

…the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition.  Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.

According to the complaint:

The sections of the Ordinance that violate R.C. §9.68 by requiring or imposing upon the people requirements of license, permission, restriction, delay or process not found in State or Federal law (the “Conflicting Sections”) include, but are not limited to: 627.12 – authorizing warrantless seizure of firearms without due process; 627 .13 – prohibiting sale or transfer of firearms without reporting the sale or transfer to the City; 627.16 – prohibiting the negligent transfer of a firearm to a prohibited person; 627.18 – requiring City residents to repo1i the loss or theft of any firearm; and Chapter 628 – creating a “gun offender registry”. In addition, Ordinance No. 931-14 includes many provisions which may, more or less, restate State or Federal law, but still touch upon matters reserved exclusively to State or Federal law by R.C. §9.68 because they deal with the right of the people to own, possess, purchase, sell, transfer, transport, store, or keep firearms, parts of firearms components and ammunition (the “Prohibited Subject Sections”). The City is precluded by R.C. §9.68 from enacting both the Conflicting Sections and the Prohibited Subject Sections.

See cleveland. com, Gun rights advocacy group sues city of Cleveland over new gun ordinance.

The City will likely assert that the ordinance falls under their home rule powers.

Traditionally, we have used a three-part test to evaluate conflicts under the Home Rule Amendment.   A state statute takes precedence over a local ordinance when “(1) the ordinance is an exercise of the police power, rather than of local self-government, (2) the statute is a general law, and (3) the ordinance is in conflict with the statute.” Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, ¶ 17.

Cleveland v. State, 128 Ohio St.3d 135, 2010-Ohio-6318  , 942 N.E.2d 370.

Cleveland v. State held that ORC 9.68 is a general law and is an exercise of police power.  Also see  Ohioans For Concealed Carry, Inc., v. City of Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605,  896 N.E.2d 967.  In Cleveland v. State, the city did not argue that its ordinances did not conflict with ORC 9.68.  In the recently filed lawsuit, the City will likely argue that the recent ordinance does not conflict with ORC 9.68.  As stated in Justice Pfeiffer’s dissent in Cleveland v. State, “…in order for * * * a conflict to arise, the state statute must positively permit what the ordinance prohibits, or vice versa, regardless of the extent of state regulation concerning the same object.” (Quoting Cincinnati v. Hoffman (1972), 31 Ohio St.2d 163, 169, 60 O.O.2d 117, 285 N.E.2d 714).


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