The Volokh Conspiracy - Right To Bear Arms Relevant to Whether Possession of Gun While Under Indictment Is a Strict Liability Offense:

From State v. Clay, just handed down by the Ohio Supreme Court. (UPDATE: Link added; I'm on jury duty now, and the computer I was initially using made it hard to copy and paste link information.)

The appellant was convicted of having a weapon while under a disability under R.C. 2923.13(A)(3) because he was "under indictment" on drug charges at the time he possessed a weapon....

On March 5, 2006, at approximately 1:00 a.m. outside the Gin-Gin bar in Cleveland, appellant, Howard Clay, shot and wounded Christopher Graham. At the time of the shooting, Clay was under indictment for possession and trafficking of drugs. For the 2006 shooting, a grand jury indicted Clay on charges of felonious assault under R.C. 2903.11, firearm specifications under R.C. 2941.141 and 2941.145, and having a weapon under a disability under R.C. 2923.13, i.e., using a weapon while under indictment for possession and trafficking of drugs under R.C. 2923.13(A)(3)....

Clay argued that there was insufficient evidence to convict him of having a weapon while under a disability because he was unaware that he was under indictment at the time of the shooting.... The court of appeals affirmed the trial court's judgment of conviction, finding that R.C. 2923.13(A)(3) is a strict-liability offense....

R.C. 2923.13 ... provides: "(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if ... (3) The person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse ...."

Because R.C. 2923.13(A)(3) has no culpable mental state [included as to the element of the person's being under indictment], the question now becomes whether the General Assembly plainly intended R.C. 2923.13(A)(3) to impose strict liability or whether R.C. 2901.21(B) [a default mental state provision] supplies the culpable mental state of recklessness....

[P]ossessing a weapon, when the weapon is a firearm, is a constitutionally protected right [under the Ohio Bill of Rights] subject only to limited restrictions. And in the instant case, it is only the additional fact of being "under indictment" that made possessing the firearm a crime under R.C. 2923.13.... Further, ... there are no "other indications outside" the language of R.C. 2923.13(A)(3) that plainly indicate an intent to impose strict liability. Specifically, we find no "strong stance" by the General Assembly against possession of firearms per se, as we found in [an earlier case] with regard to possession of child pornography....

We find that ... the General Assembly did not plainly intend to impose strict liability. Where a statute lacks [an explicitly provided] mental state and the General Assembly did not intend strict liability, the mental state of recklessness applies under R.C. 2901.21(B). Accordingly, for purposes of proving the offense of having a weapon while under a disability pursuant to R.C. 2923.13(A)(3), the mental state of recklessness applies in determining whether the defendant is aware that he or she is "under indictment."

Because the trial court never determined whether Clay acted recklessly with regard to being aware that he was "under indictment," we remand the cause to the trial court to determine that issue.

This echoes the First Amendment principle that strict liability is usually forbidden in cases where, but for a reasonable error (or sometimes even just honest error) about a fact, the speech would be constitutionally protected. A few cases have likewise held the same as to abortion rights, and (as here) as to gun rights. Query whether the same should be in cases where, but for a reasonable error about a fact, a sexual act would be protected by the sexual autonomy right secured under Lawrence v. Texas and under various state constitutions — the chief example of such a fact would be whether the other party is under 18; many states do provide strict liability in such situations. I blogged more about this several months ago; that post has more links to other posts discussing past cases on the subject.

	[Eugene Volokh, December 11, 2008 at 11:45am] Trackbacks Right To Bear Arms Relevant to Whether Possession of Gun While Under Indictment Is a Strict Liability Offense: From State v. Clay, just handed down by the Ohio Supreme Court. (UPDATE: Link added; I'm on jury duty now, and the computer I was initially using made it hard to copy and paste link information.) The appellant was convicted of having a weapon while under a disability under R.C. 2923.13(A)(3) because he was "under indictment" on drug charges at the time he possessed a weapon.... On March 5, 2006, at approximately 1:00 a.m. outside the Gin-Gin bar in Cleveland, appellant, Howard Clay, shot and wounded Christopher Graham. At the time of the shooting, Clay was under indictment for possession and trafficking of drugs. For the 2006 shooting, a grand jury indicted Clay on charges of felonious assault under R.C. 2903.11, firearm specifications under R.C. 2941.141 and 2941.145, and having a weapon under a disability under R.C. 2923.13, i.e., using a weapon while under indictment for possession and trafficking of drugs under R.C. 2923.13(A)(3).... Clay argued that there was insufficient evidence to convict him of having a weapon while under a disability because he was unaware that he was under indictment at the time of the shooting.... The court of appeals affirmed the trial court's judgment of conviction, finding that R.C. 2923.13(A)(3) is a strict-liability offense.... R.C. 2923.13 ... provides: "(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if ... (3) The person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse ...." Because R.C. 2923.13(A)(3) has no culpable mental state [included as to the element of the person's being under indictment], the question now becomes whether the General Assembly plainly intended R.C. 2923.13(A)(3) to impose strict liability or whether R.C. 2901.21(B) [a default mental state provision] supplies the culpable mental state of recklessness.... [P]ossessing a weapon, when the weapon is a firearm, is a constitutionally protected right [under the Ohio Bill of Rights] subject only to limited restrictions. And in the instant case, it is only the additional fact of being "under indictment" that made possessing the firearm a crime under R.C. 2923.13.... Further, ... there are no "other indications outside" the language of R.C. 2923.13(A)(3) that plainly indicate an intent to impose strict liability. Specifically, we find no "strong stance" by the General Assembly against possession of firearms per se, as we found in [an earlier case] with regard to possession of child pornography.... We find that ... the General Assembly did not plainly intend to impose strict liability. Where a statute lacks [an explicitly provided] mental state and the General Assembly did not intend strict liability, the mental state of recklessness applies under R.C. 2901.21(B). Accordingly, for purposes of proving the offense of having a weapon while under a disability pursuant to R.C. 2923.13(A)(3), the mental state of recklessness applies in determining whether the defendant is aware that he or she is "under indictment." Because the trial court never determined whether Clay acted recklessly with regard to being aware that he was "under indictment," we remand the cause to the trial court to determine that issue. This echoes the First Amendment principle that strict liability is usually forbidden in cases where, but for a reasonable error (or sometimes even just honest error) about a fact, the speech would be constitutionally protected. A few cases have likewise held the same as to abortion rights, and (as here) as to gun rights. Query whether the same should be in cases where, but for a reasonable error about a fact, a sexual act would be protected by the sexual autonomy right secured under Lawrence v. Texas and under various state constitutions — the chief example of such a fact would be whether the other party is under 18; many states do provide strict liability in such situations. I blogged more about this several months ago; that post has more links to other posts discussing past cases on the subject.