[Eugene Volokh, September 19, 2008 at 12:50pm] Trackbacks
Cleveland Municipal Code Doesn't Authorize Civil Forfeitures of Unregistered Guns:

A mildly interesting opinion from the Ohio Court of Appeals, in City of Cleveland v. Fulton (handed down yesterday).

Happyshooter:
I don't understand the law as quoted---

Is it a state or city pistol registration card that is required?
9.19.2008 2:11pm
Soronel Haetir (mail):
And if it is a city registration how could it possibly survive the pre-emption test applied in the parks case discussed yesterday? Seems a lot like D.C.'s efforts to ignore Heller, just this time cities trying to ignore the state legislature rather than a court.
9.19.2008 4:01pm
Bruce Hayden (mail) (www):
The problem for the city was that though he may have been carrying an unregistered weapon, the penalty for such did not include forfeiture. The lower court stepped outside its bounds by opining that if the city had tried that case, it would have won. But it didn't, and, indeed, apparently never got to the point of allowing the defense to put on its case (rather, it appears more akin to a directed verdict). In any case, the judge's view that he would have convicted on an unsought charge was irrelevant, since the charge was never brought or tried.
9.19.2008 4:29pm
David Schwartz (mail):
Why bother even having charges, trials, lawyers, and all that stuff? Why can't we just have judges speculate on whether people would have been convicted or not? And if he thinks they would have, let's punish them.
9.19.2008 5:01pm
Steve2:
Is it normal for an appellate court to explicitly state "The court finds there were reasonable grounds for this appeal" at the end of a ruling in favor of the appellant, where the propriety of the appeal was mentioned nowhere else in the opinion? I'm wondering if that's standard, or just an idiosyncrasy of this court or judge. Seems like something that would be obvious from the fact that the appellant won.
9.19.2008 5:37pm
Bruce Hayden (mail) (www):
Is it normal for an appellate court to explicitly state "The court finds there were reasonable grounds for this appeal" at the end of a ruling in favor of the appellant, where the propriety of the appeal was mentioned nowhere else in the opinion? I'm wondering if that's standard, or just an idiosyncrasy of this court or judge. Seems like something that would be obvious from the fact that the appellant won.
I think that it needs to be stated for the record because right before that:
It is ordered that appellant recover from appellee costs herein taxed.
In other words, the appeals court is justifying awarding costs to the appellant.
9.19.2008 5:45pm
Bruce Hayden (mail) (www):
Why bother even having charges, trials, lawyers, and all that stuff? Why can't we just have judges speculate on whether people would have been convicted or not? And if he thinks they would have, let's punish them.
Which is part of why the trial court judge was slapped down here.
9.19.2008 5:46pm
EconGrad:
It strikes me that when his firearm is returned to him, he will immediately be in unlawful (unregistered) possession and subject to arrest on that charge. Upon conviction, they will be able to destroy the firearm. Hopefully his attorney is smart enough to have the local police ship his firearm to an FFL outside of Cleveland when they return it (as opposed to him picking it up in person).

Of course it also seems that there is nothing precluding them from charging him now (or any time within the statute of limitations) for the previous violation of unregistered possession.

Moving to another jurisdiction out of the State might be a good idea. Doubt they'd try to extradite him back to Ohio on a misdemeanor.
9.19.2008 6:06pm
Happyshooter:
Of course it also seems that there is nothing precluding them from charging him now (or any time within the statute of limitations) for the previous violation of unregistered possession.

Mandatory joinder. Speedy trial. I bet there is a short statute of limitations, as well.

As for handing the gun back to him within the city and then arresting him there...that is the classic entrapment case. Not to say they wouldn't try it, but even the federal liberal 6th circuit would toss that one.

Does anyone know the answer to my question in the first post? I think it makes a big difference in any discussion we want to have.
9.22.2008 10:29am