We predicted it right here, didn't we?
http://www.ofcc.net/article2330.html
http://www.ofcc.net/article2330.html
Below you will find a story of an individual from the Cleveland area who was arrested and charged originally with a 5th degree felony because his t-shirt accidentally covered his gun - violating the "plain sight" requirement - when he followed the instruction of the police officer during the traffic stop. The county prosecutor reduced the charge to a minor misdemeanor, but in reality should have completed dismissed all charges since the officer's request caused the violation. Hopefully, this conviction will be overturned on appeal since he entered an Alford plea. In addition, his gun and permit were NOT returned to him at the end of the traffic stop - a violation of state law.
Thirdly, the judge in this matter illegally ordered the gun seized.
State law needs to be changed NOW to have true concealed carry. Plain sight needs to be removed from the statute immediately. Ohio is the only state in the country that has such a ridiculous provision. The law also needs to be strengthened to prevent renegade police officers and judges to face penalties for failing to follow state law - felony theft charges.
I am fully in support of protecting our police officers. I am a member of the Fraternal Order of Police Associates. I do not disagree with officers being permitted to temporarily disarm a CCW permit holder, but there must be consequences for the officer for failing to follow Ohio law 2923.12 (H) in failing to return the gun immediately.
Finally, the statute needs to be revised to prohibit the release of any information regarding permit holders to protect their safety and well-being.
Sincerely,
Michael P Rolfes
QUOTED NEWS TEXT:
For several weeks, Ohioans For Concealed Carry has been following the case of a young CHL-holder whose has been abused not only by the terrible vehicle carry provisions in Ohio law, but by the system responsible for enforcing it.
On Thursday, August 5, the CHL-holder was a passenger in a vehicle that was stopped for a traffic violation by a Chagrin Falls police officer. The CHL-holder identified himself as a such to the officer, and announced that he was carrying.
Upon so doing, the officer moved to the passenger side of the car and ordered the CHL-holder to place his hands on the dash. When he did so, the CHL-holder's shirt came loose and lifted up over his gun, which was contained in an inside-the-waist-band holster.
The officer the accused the individual of not having his firearm in plain sight, and confiscated the firearm and license. He was not, however, charged or arrested at the time. This fact alone is cause for concern, since Ohio law specifically states that unless a person is charged or arrested, their firearm should be returned at the conclusion of the traffic stop:
ORC 2923.12.(H) If a law enforcement officer stops a person to question the person regarding a possible violation of this section, for a traffic stop, or for any other law enforcement purpose, if the person surrenders a firearm to the officer, either voluntarily or pursuant to a request or demand of the officer, and if the officer does not charge the person with a violation of this section or arrest the person for any offense, the person is not otherwise prohibited by law from possessing the firearm, and the firearm is not contraband, the officer shall return the firearm to the person at the termination of the stop.
The defendant later voluntarily appeared at the police department, where he was booked on a fifth-degree felony "plain sight" violation, and released on bond.
The city prosecutor and defense counsel came to an agreement where the prosecutor dismissed the felony charge for violating the open sight provision. The prosecutor filed a new case of disorderly conduct (a minor misdemeanor) as part of the deal for the dismissal, and the defendant entered an Alford Guilty plea to the charge. A minor misdemeanor is like a traffic ticket - the penalty is a fine only, with no possible jail-time. Pleading "Alford Guilty" means, essentially, that the defendant isn't admitting guilt, but the deal is so good that it would be akin to committing legal suicide to pass it up.
On Monday, August 23, the case went before Bedford Municipal Court Judge Peter Junkin. Rather than signing off on this deal, as he had done all morning long in other cases, Judge Junkin immediately began grilling defendant and his counsel about why would he want to carry a gun in the municipality, since there is no violent crime. The judge peppered the defendant with rhetorical questions such as "If you see something you are going to jump out and start shooting?" The judge's line of questioning sought to make the defendant out to be a vigilante.
The judge then reviewed every police report, statement, etc., and was "visibly getting mad". He wrote one thing on the entry, then scribbled it out. Eventually, Junkin fined the defendant $150, ordered he pay court costs on the disorderly case and the dismissed felony case, and ordered seizure of the gun.
The prosecution never requested seizure of the gun, which was illegally seized in the first place (ORC 2923.12.(H)). The Judge has no authority to order seizure of the gun until the prosecution makes a motion (ORC 2933.43 (C)). The prosecution made no such motion, because the prosecutor knew that the gun should not have been seized by the officer at the traffic stop. There is already a Cuyahoga County Appeals Court case directly on point - State v. Cola 76 Ohio App.3d 840.
According to witnesses, defense counsel started to object, saying "Judge, I don't think you can do that," but Junkin immediately cut him off and said "Get the Court of Appeals to tell me I can't do that."
The defendant has decided that he will take Junkin's advice, and pursue the Cuyahoga Court of Appeals for relief from this illegal, activist ruling. It is believed the prosecutor will not contest the appeal.
A candidate needs to be identified to run against this judge, who lets his personal bias lead him into blatantly illegal acts from the bench.
Judge Peter Junkin
Bedford Municipal Court
165 Center St.
Bedford, OH 44146