An inoperable pistol

By Paul E. Pfeifer - Court of Appeals

On March 17, 2013, Cincinnati Police Officer Frank Boggio was called to a location where a large group of juveniles had gathered. Boggio approached the group and stopped two young men who were wearing dark hooded sweatshirts.

Officer Boggio noticed that one of the young men – J.T. – had a rather large bulge around his waist. Officer Boggio patted down J.T. and felt a gun tucked into his pants. J.T. admitted that he had a gun, and the officer removed a loaded handgun from J.T.’s waistband.

Officer Boggio filed a complaint alleging that J.T., a minor, was delinquent for carrying a concealed deadly weapon on his person, a fourth-degree felony. Just prior to trial, the charge was amended to a first-degree misdemeanor because by that time it had been determined that the gun J.T. had been carrying was broken and incapable of firing a round.

J.T. was found to be delinquent – the rough equivalent to being found guilty in adult court. The magistrate stated that the evidence proved beyond a reasonable doubt that J.T. “possessed the firearm in his waistband” and that “the weapon was inoperable but was still capable of being used as a deadly weapon.” Thus, J.T. was found to have violated the law that prohibits carrying a concealed weapon.

J.T. filed written objections to the magistrate’s decision, but after oral arguments the juvenile court overruled the objections and adopted the magistrate’s decision.

After that, J.T turned to the court of appeals. In his appeal, J.T. argued that an inoperable pistol carried in one’s waistband and not brandished or used in any way is not a “deadly weapon” within the meaning of the concealed weapon law.

After reviewing the case, the court of appeals affirmed the trial court’s decision. The court stated that it was beyond objection “that the pistol had been designed as a weapon. And the arresting police officer testified that the pistol was a heavy, blunt object – evidence that the pistol was capable of inflicting deadly harm.”

After that ruling by the court of appeals, J.T.’s case came before us – the Ohio Supreme Court.

The key question in this case was whether a person can be convicted of carrying a concealed weapon when the handgun being carried is inoperable and was not used as a bludgeon or otherwise used, possessed, or carried as a weapon.

By a six-to-one majority, our court concluded that the answer to that question was no. Justice William M. O’Neill, writing for the majority, said that to hold otherwise “would necessarily lead to the conclusion that the operability of a gun is completely irrelevant.”

The law in question prohibits the carrying of a concealed weapon, including a “deadly weapon” or a handgun. That same law also provides that a “‘deadly weapon’ means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.”

Justice O’Neill said that the court of appeals “seemed to hang its hat on the fact that the gun J.T. had in his waistband had been designed as a weapon. It then found that the gun, while inoperable, was capable of deadly harm through use as a bludgeon, as it ‘was a heavy, blunt object.’”

This reasoning, the majority said, reflected skewed logic. “While the gun in question was no doubt designed as a weapon, the design was for the gun to shoot a projectile from the barrel at a high rate of speed. It was not designed to be used as a bludgeon, like a club or nightstick.”

According to the majority, “The fact that the gun was inoperable means that it had lost the sole function for which it had been designed. It was no longer a deadly weapon unless there was some evidence presented that it was used as a bludgeon or otherwise used, possessed, or carried as a weapon. There was not. Hence, it was no more of a deadly weapon than is a laptop computer or a briefcase, yet attorneys are not routinely arrested for carrying concealed weapons as they enter our courthouses.”

In the past, our court has held in various cases that a pistol must be operable or readily rendered operable at the time of the offense in order to be a “firearm” that would support a firearm specification as defined by the law. “Firearm specification” is the term used to describe the use of a weapon in the commission of a crime.

While this case did not involve a firearm specification, the majority concluded that there was no valid basis to distinguish between the law prohibiting guns for purposes of a firearm specification and the law prohibiting carrying a concealed weapon.

According to the majority, “to allow an inoperable handgun to be considered a per se deadly weapon would be an unintended expansion of the law. The Ohio legislature has shown that it is capable of crafting a law that penalizes someone for carrying a gun whether it is operable or inoperable.”

To that point, the majority cited the law that prohibits weapons within a school zone, which states, “No person shall knowingly possess an object in a school safety zone if…the object is indistinguishable from a firearm, whether or not the object is capable of being fired.”

The majority reasoned that the legislature could have used similar language if it had intended the crime of carrying a concealed weapon to include possession of an inoperable handgun.

According to the majority, an inoperable pistol that is not used as a bludgeon is not a “deadly weapon” for purposes of the law that prohibits carrying a concealed weapon.

I cast the dissenting vote because I would not have accepted the appeal in the first place. But the majority determined that there was insufficient evidence to support the finding of delinquency for carrying a concealed weapon. With that vote, the judgment of the court of appeals was reversed, and the finding of delinquency was vacated.

By Paul E. Pfeifer

Court of Appeals

Paul E. Pfeifer is a judge in the Court of Appeals.

Paul E. Pfeifer is a judge in the Court of Appeals.