Posted on Sep 11, 2015

When is a gun not a deadly weapon?

When it doesn’t work — and is not used as a bludgeon — the Ohio Supreme Court answered today.

An inoperable gun that cannot fire bullets is not a deadly weapon under the state law that prohibits carrying a concealed weapon without a permit, the court ruled in a case involving a Cincinnati juvenile.

The justices reversed the findings of a juvenile court and the Cincinnati-area appeals court that the teenager was guilty of a delinquency count of carrying a concealed deadly weapon, even though it did not work.

A police officer saw a suspicious bulge in the youth’s waistband and patted him down, discovering a loaded 9-millimeter handgun on March 17, 2013. Testing found the weapon was inoperable.

The justices reversed the juvenile’s conviction in what Justice William M. O’Neill wrote was a “common-sense reality check.”

In the majority opinion, O’Neill wrote that the legislature addressed inoperable firearms in banning guns and toy look-alikes in school zones, but did not act to alter the concealed-carry law.

“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,” O’Neill wrote.

“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,” his opinion said.

Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger and Judith L. French joined O’Neill in the majority opinion. Justices Terrence O’Donnell and Sharon L. Kennedy agreed with the ruling, but not with the legal basis on which it was reached.

Justice Paul E. Pfefier dissented, saying he would not have accepted the appeal.


Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

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