City of Cincinnati v. Baskin

Alice Robie Resnick, J. ¶ 1 On May 31, 2003, defendant-appellee, Colt Lee Baskin, was charged with violating Cincinnati Municipal Code 708-37, which prohibits the possession of semiautomatic firearms, including any semiautomatic rifle with a capacity of more than ten rounds.1 The complaint alleged that Baskin was observed to be in possession of “a semi automatic firearm assault rifle SKS capabele [sic] of a capacity of more than ten rounds. Magazine affixed not detachable.” ¶ 2 Baskin moved to dismiss the charge, claiming that the ordinance is in conflict with the state statutes governing the possession of firearms. The trial 280 court granted the motion on October 23, 2003, finding that Cincinnati Municipal Code 708-37 “mak[es] something illegal, which * * * under State law would be permitted.” ¶ 3 In a split decision, the court of appeals affirmed the judgment of the trial court. In so doing, the court of appeals identified R.C. 2923.11(E) as “[t]he Ohio statute upon which the disagreement turns in this case.” Cincinnati v. Baskin, 158 Ohio App.3d 539, 2004-Ohio-5055, 817 N.E.2d 433, at ¶ 5. R.C. 2923.11(E) defines “automatic firearm,” the possession of which is prohibited under R.C. 2923.17(A), to include “any semi-automatic firearm designed or specifically adapted to fire more than thirty-one cartridges without reloading.” 2 The court of appeals determined that “R.C. 2923.11 is a general law” because it “addresses conduct of the citizenry, rather than actions of a municipal legislative body.” Id. at ¶ 10. Agreeing with Baskin that “Ohio allows its citizens to have a [semiautomatic] firearm that can fire up to 31 rounds,” id. at ¶ 6, the court of appeals concluded that “the municipal ordinance and the state statute differ with regard to the lawful number of rounds permitted by one possessing a semiautomatic firearm: the ordinance prohibits what the state permits. Therefore, * * * the municipal ordinance must give way to the state statute.” Id. at ¶ 13. ¶ 4 The dissenting judge stated, “I cannot agree that a definition is a general law. The majority holds that R.C. 2923.11(E) is a general law because it addresses the conduct of the citizenry. But when did defining a term become ‘the conduct of the citizenry’? Definitions have nothing to do with conduct.” Id. at ¶ 14. The dissenting judge opined, “[E]ven if a definition were a general law, the [municipal and state] provisions do not conflict.” Id. at ¶ 20. In the dissent’s view, prohibiting the possession of a semiautomatic firearm that holds more than 31 cartridges is not tantamount to allowing the possession of a semiautomatic firearm that holds up to 31 cartridges. Id. at ¶ 19. Thus, according to the dissent, the ordinance does not prohibit what the statute permits. Id. at ¶ 23. ¶ 5 The cause is now before this court upon the acceptance of a discretionary appeal. ¶ 6 The issue for our consideration is whether Cincinnati Municipal Code 708-37’s prohibition against the possession of a semiautomatic rifle with a 281 magazine capacity of more than ten rounds is unenforceable as being in conflict with a general law of the state. ¶ 7 Section 3, Article XVIII of the Ohio Constitution, which is known as the home-rule provision, provides: ¶ 8 “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” ¶ 9 In Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at ¶ 9, the court summarized the test for determining whether a municipal ordinance is displaced by a state measure: ¶ 10 “A state statute takes precedence over a local ordinance when (1) the ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police power, rather than of local self-government, and (3) the statute is a general law.” ¶ 11 There is no dispute in this case that Cincinnati Municipal Code 708-37 is an exercise of the police power, rather than of local self-government, and is therefore susceptible to displacement by conflicting general laws. In addressing the other two prongs of the test, however, both the parties and the court of appeals have complicated matters by making R.C. 2923.11(E) the focal point of their inquiry. As a result, they have embroiled themselves in a pointless theoretical debate as to whether a statutory definition constitutes a general law for purposes of home-rule analysis. ¶ 12 In determining whether the general-law requirement is met in this case, the court of appeals should have focused on R.C. 2923.17(A), which provides that “[n]o person shall knowingly acquire, have, carry, or use any dangerous ordnance.” It is R.C. 2923.17(A), not R.C. 2923.11(E), that must qualify as a general law in this case. One who has a semiautomatic firearm with the qualities described in R.C. 2923.11(E) is guilty of unlawful possession of dangerous ordnance in violation of R.C. 2923.17(A). See R.C. 2923.17(D). For present purposes, R.C. 2923.17(A) essentially provides, “No person shall knowingly acquire, have, carry, or use any [semi-automatic firearm designed or specially adapted to fire more than thirty-one cartridges without reloading].” Recognition of this fact would have obviated the amorphous controversy over the status of a definition. ¶ 13 There is no question that R.C. 2923.17(A) is a general law. In Canton, supra, the court established a test to determine whether a provision of a state statute is a general law. “To constitute a general law for purposes of home-rule analysis, a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly 282 throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally.” Id., 95 Ohio St.3d 149, 2002-0hio-2005, 766 N.E.2d 963, at the syllabus. ¶ 14 Appellant, city of Cincinnati, concedes that “[l]aws regulating possession of firearms meet the first three requirements.” And since we have already determined that only R.C. 2923.17(A) must qualify as a general law, we reject appellant’s contention that R.C. 2923.11(E) fails to satisfy the fourth requirement “because this statute merely establishes a definitional standard for semiautomatic firearms.” Clearly, R.C. 2923.17(A) prescribes a rule of conduct upon citizens generally, i.e., that no person shall knowingly possess any dangerous ordnance, including any semiautomatic firearm that is designed or modified to accommodate more than 31 cartridges. ¶ 15 Appellant further argues, however, that even if R.C. 2923.11(E) and 2923.17(A) are construed together, the statute still fails as “a regulation on the conduct of ordinary citizenry.” According to appellant, if the General Assembly intended to prevent municipalities from “regulating semiautomatic firearms capable of firing fewer than 31 cartridges, [it] would have overtly incorporated such preemption into the code’s language, as it did in enacting the concealed carry legislation.” Instead, by virtue of its “silence on preempting the field of this restriction,” the General Assembly “implicitly recognizes that some firearms are more dangerous in certain environments” and that municipalities will continue “to enact legislation [in this area] designed to meet the specific needs of their residents.” Appellant concludes, therefore, that the statute “is not a general law that preempts the City of Cincinnati from enacting legislation regulating semiautomatic firearms capable of firing fewer than 31 cartridges.” ¶ 16 This argument basically summarizes appellant’s position on the issue of conflict, but has no real bearing on whether R.C. 2923.17(A) is a general law. Essentially, appellant cites the absence of a preemption clause to support a construction of the statute that is compatible with the ordinance. The construction urged by appellant is that the statute merely prohibits the possession of semiautomatic firearms with capacities exceeding 31 cartridges; it does not permit or declare a right to the possession of semiautomatic firearms that hold up to 31 cartridges. Under this construction, there is no conflict between the local and state provisions because the statute commits the regulation of lower-capacity firearms to municipal control. ¶ 17 In its attempt to apply a general-law analysis, however, appellant erroneously assumes that a statute must declare something to be a right in order to meet the rule-of-conduct requirement. But forbidding an act is just as much prescribing a rule of conduct as is permitting an act. Thus, even if appellant is 283 correct that the statute has no preclusive effect on a municipality’s ability to regulate semiautomatic firearms capable of firing 31 or fewer cartridges, R.C. 2923.17(A) is still a general law for purposes of Section 3, Article XVIII of the Ohio Constitution. ¶ 18 This brings us to the crucial issue, which is whether Cincinnati Municipal Code 708-37, to the extent that it prohibits the possession of any semiautomatic rifle with a magazine capacity of more than ten rounds, is in conflict with R.C. 2923.17(A). ¶ 19 It has long been established that “[i]n determining whether an ordinance is in ‘conflict’ with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.” Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, at paragraph two of the syllabus. See, also, State v. Burnett (2001), 93 Ohio St.3d 419, 431, 755 N.E.2d 857; Middleburg Hts. v. Ohio Bd. of Bldg. Stds. (1992), 65 Ohio St.3d 510, 512, 605 N.E.2d 66. In other words, “[n]o real conflict can exist unless the ordinance declares something to be right which the state law declares to be wrong, or vice versa.” Sokol, 108 Ohio St. at 268, 140 N.E. 519. ¶ 20 It is also well established that “in order for such 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.” Cincinnati v. Hoffman (1972), 31 Ohio St.2d 163, 169, 60 O.O.2d 117, 285 N.E.2d 714. See, also, State ex rel. King v. Summit Cty. Council, 99 Ohio St.3d 172, 2003-Ohio-3050, 789 N.E.2d 1108, at ¶ 39; Cleveland v. Raffa (1968), 13 Ohio St.2d 112, 114, 42 O.O.2d 329, 235 N.E.2d 138. ¶ 21 In applying this test to the present dispute, the court of appeals necessarily had to interpret the statute to not only prohibit the possession of any semiautomatic firearm that can fire more than 31 rounds without reloading, but to also imply a right to the possession of any semiautomatic firearm that can fire up to 31 rounds without reloading. Otherwise, it could not have found that the ordinance prohibits what the statute permits. ¶ 22 We acknowledge that in Am. Fin. Servs. Assn. v. Cleveland, 112 Ohio St.3d 170, 2006-Ohio-6043, 858 N.E.2d 776, this court recently held that the Cleveland ordinances were in conflict with the state measures because Cleveland had “undertaken to regulate the making of a loan authorized by the General Assembly.” Id. at ¶ 48. ¶ 23 The instant case is distinguishable, however, because Cincinnati has not undertaken to regulate or prohibit any conduct that the state has authorized. The relevant state statutes, i.e., R.C. 2923.11 and 2923.17, prohibit the possession of semiautomatic firearms that are designed or adapted to fire more than 31 cartridges without reloading. They do not, however, permit or authorize the possession of semiautomatic firearms that are capable of firing 31 or fewer 284 cartridges without reloading. There is nothing in the weapons-control measures in the criminal code that manifests an intent to prevent municipalities from regulating the possession of semiautomatic firearms that hold fewer than 32 rounds. There is no provision in the statute declaring or otherwise suggesting that the limitation upon firing capacity fixed therein is the only limitation controlling the possession of a semiautomatic firearm, that the limitation shall not be diminished or altered by municipal regulation, or that municipalities may not prohibit the possession of lower-capacity firearms than are prohibited by the statute. Nor is it entirely clear that the statute is even concerned with the regulation of semiautomatic firearms as a separate class of dangerous ordnance, other than to ensure that higher-capacity semiautomatic firearms are prohibited along with automatic firearms. ¶ 24 In the absence of any limiting provision or declaration to the contrary, we conclude that the General Assembly intended to allow municipalities to regulate the possession of lower-capacity semiautomatic firearms in accordance with local conditions, requiring only that under no condition shall municipalities allow the possession of any semiautomatic firearm that is capable of firing more than 31 cartridges without reloading. Thus, the ordinance does not prohibit what the statute permits. ¶ 25 Accordingly, we hold that Cincinnati Municipal Code 708-37, which prohibits the possession of any semiautomatic rifle with a magazine capacity of more than ten rounds, is not in conflict with R.C. 2923.17(A) for purposes of Section 3, Article XVIII of the Ohio Constitution. ¶ 26 Based on the foregoing, the judgment of the court of appeals is reversed, and the cause is remanded to the trial court for further proceedings. Judgment reversed and cause remanded. Moyer, C.J., Pfeifer and Lanzinger, JJ., concur. Lundberg Stratton, J., concurs in the syllabus and the judgment. O’Connor and O’Donnell, JJ., concur in judgment only. Footnotes [1] {¶ a} Cincinnati Municipal Code 708-37 provides: {11b} “(a) No person shall sell, deliver, rent, lease, offer, or display for sale, or transfer ownership of, acquire or possess a semiautomatic firearm. {¶ c} “ * * * {¶ d} “(h) The term ‘semiautomatic’ means any firearm designed or specially adapted to fire a single cartridge and automatically chamber a succeeding cartridge and ready to fire, with a single function of the trigger. {¶ e} “(i) For the purpose of this section, ‘semiautomatic firearm’ shall have the following meanings: {¶ f} “(1) Any semiautomatic rifle or carbine that was originally designed with or has a fixed magazine or detachable magazine with a capacity of more than ten rounds.” [2] {¶ a} R.C. 2923.17(A) provides, “No person shall knowingly acquire, have, carry, or use any dangerous ordnance.” R.C. 2923.11(K) defines “dangerous ordnance” to mean, among other things, “(1) [a]ny automatic * * * firearm.” R.C. 2923.11(E) provides: {¶ b} “ ‘Automatic firearm’ means any firearm designed or specifically adapted to fire a succession of cartridges with a single function of the trigger. Automatic firearm’ also means any semi-automatic firearm designed or specially adapted to fire more than thirty-one cartridges without reloading, other than a firearm chambering only .22 caliber short, long, or long-rifle cartridges.”