FEBRUARY 12, 2003

Seneca County judge objects to state gun law

By Ryan Good
Staff Writer
rgood@advertiser-tribune.com

A Seneca County judge has ruled that Ohio's law against carrying a concealed weapon is unconstitutional.

"The statute deprives Ohio citizens of an effective means of self-defense," said Common Pleas Judge Michael P. Kelbley in an 18-page ruling filed Tuesday. "The Constitution states in clear terms that the people of Ohio have the right to bear arms."

Kathryn J. Howard, 28, 1208D Peeler Drive, Fostoria, was facing one count of carrying a concealed weapon stemming from a June 2002 traffic stop in Fostoria in which a loaded 9mm pistol was found under her seat, according to papers in the now-closed case.

Howard, through her attorney Mark Klepatz of Tiffin, had filed a motion in November 2002 to have the case thrown out because the law governing concealed weapons was unconstitutional.

Kelbley said he based his ruling on the Ohio Constitution, and not the Second Amendment to the U.S. Constitution.

Article One, Section Four of the Ohio Constitution states, in part, "The people have the right to bear arms for their defense and security."

The judge said he didn't give any thought to the precedent the ruling would set, and focused only on the case.

Court papers state that Howard was a passenger in a car on June 20, 2002, at Springville Avenue and SR 18 when the driver was pulled over and cited with driving under the influence, court papers show.

When the State Patrol trooper took an inventory of the vehicle, he found a 9mm pistol under Howard's seat.

Howard admitted that the loaded gun belonged to her and she was carrying the pistol for self-defense because she had been sexually assaulted in the past, according to court documents.

"She's very happy about the decision," Klepatz said about his client's reaction to the ruling.

"She meets the criteria for affirmative defense. If she meets the criteria why put her through the arrest?" Klepatz added.

An "affirmative defense" to carrying a concealed weapon under the Ohio Revised Code includes:

• Keeping the weapon for defensive purposed while a person is otherwise going about his or her lawful business.
• The person had a reasonable notion to fear a criminal attack on themselves or family.
• The weapon was kept ready for any lawful purpose while the person is at home
• The weapon is not physically on someone's person in a motor vehicle.

Klepatz said he is optimistic that his client will win in whatever court the case is decided. He said if the Third District Court of Appeals in Lima overturns Kelbley's ruling, his client would win a trial. Should they allow the ruling to stand, she also wins.

County Prosecutor Ken Egbert Jr. said he has seven days to file the appeal with the Lima court.

He said he plans on filing two motions, one to overturn Kelbley's decision and one for a temporary injunction putting the ruling on hold until the appeal is decided.

"Carrying a concealed weapons law has been on the books for years," Egbert said, adding that it was never thought to be unconstitutional until a similar decision was handed out in Hamilton County and then appealed to the First District Court of Appeals

Kelbley said in the ruling that he had to consider the constitutionality of the law for himself, although the Hamilton County case was cited in the motion to dismiss.

In the meantime, "the law of carrying a concealed weapon is still going to be enforced" in the county, Egbert said.