Guest writer Keelie Gustin is a recent graduate of the University of Dayton, School of Law and is currently a Law Clerk for Holzfaster, Cecil, McKnight & Mues.  Keelie assists with all aspects of law at the firm, with a focus on criminal and traffic law.  Keelie is patiently awaiting for her bar results that are to be released at the end of October.  Thanks for the great article Keelie!  

Earlier this month, the Ohio Supreme Court held that an inoperable gun, or a gun that does not work and is not otherwise brandished as a bludgeon, is not considered a deadly weapon under Ohio law. R.C. 2923.11(A) states. “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.”

In March 2013, a Cincinnati officer stopped a teenager and discovered a loaded 9 mm handgun in his waistband during a pat-down. The officer charged the teenager with a fourth-degree felony for carrying a concealed deadly weapon, and the charge was later reduced to a first-degree misdemeanor, upon discovery that the 9 mm did not work. The First District Court of Appeals affirmed the juvenile court’s determination, despite the inoperable nature of the gun.

After the First District Court affirmed the charges, the Ohio Supreme Court granted the teenager’s discretionary appeal to consider the key question in the case: Can a person 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”? In re J.T., Slip Opinion No. 2015-Ohio-3654.

Justice O’Neill, writing for the majority, found that the fact that the gun was inoperable to be essential, as the gun had lost the “sole function for which it had been designed.” Id.  In other words, to find that an individual that possesses an inoperable gun also possesses a deadly weapon leads to the incorrect assumption that the operability of the gun is irrelevant—by this reasoning, mere possession of the gun, no matter its condition, would constitute a violation of Ohio law. Id.  Justice O’Neill further stated that had the Ohio legislature intended for R.C. 2923.11(A) to include possession of an inoperable handgun, the legislature would have specified so in the statute, as they did in R.C. 2923.122(C), the Ohio statute prohibiting weapons within a school zone. R.C. 2923.122(C) 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.”

Including the specific phrase “whether or not the object is capable of being fired” in one statute but not the statute at issue in this case lends itself to the notion that the legislature did not include the language in R.C. 2923.11(A) for a reason.

The Ohio Supreme Court clarified the “black letter law” inherent in R.C. 2923.11(A): The gun must be in working condition to be considered a “deadly weapon.”