City park gun ban argued in court

5/25/2006

A legal case that began with a gun-shaped birthday cake made its way yesterday to Ohio's 6th District Court of Appeals in Toledo.

And depending on who you believe, one of two things could happen after the three-judge panel makes its decision:

1.) A city could legalize "stealing," and consider it "borrowing" instead or,

2.) Toledo park workers might begin carrying guns to work.

Neither, of course, is likely to happen.

But those were the extreme examples that attorneys used in making their cases for and against a Toledo rule that prohibits firearms in city parks.

Whatever the ruling, the case could have statewide impact.

In fact, an attorney representing gun-rights advocates in a similar case involving Clyde, Ohio, also attended the hearing.

The appeals case began in 2005 when Luckey resident Bruce Beatty, wearing a 45-caliber handgun, held a highly publicized "birthday party" in Toledo's Ottawa Park to celebrate the first anniversary of Ohio's concealed-carry law.

Mr. Beatty, who is licensed under the state's 2004 concealed-carry law to carry the weapon, was cited for violating a Toledo park rule banning guns in public parks and was later fined $50.

He appealed the case, arguing that the city's ban on guns in parks violated state law, which allows licensed citizens to carry concealed weapons ev-erywhere except 10 specified places - schools and government buildings among them.

The state law does not specifically prohibit firearms in parks.

Soon after it was enacted, Clyde council members passed an ordinance banning firearms in the Sandusky County city's parks.

Firearms rights advocates sued, and that case is pending. The appeals court decision in the Toledo case will likely affect the Clyde case.

The Toledo case "goes to the heart" of the city's home-rule right to self-govern, said John Madigan, the city attorney.

Toledo's 1996 park rules - which also ban alcohol, for example - do not conflict with Ohio law and are allowed under a city's "home rule" authority, he said.

Mr. Madigan cited a case in front of the Ohio Supreme Court. In that matter, the 6th District Court, which handles appeals from Lucas County and several other northwest Ohio counties, ruled that the city of Toledo could pass municipal codes tougher than the state law to prevent predatory lending.

But comparing the park rule to the predatory lending codes is invalid, argued Bill Stephenson, Mr. Beatty's attorney.

In the predatory lending case, the city took extra steps to protect its citizens. The city's ban of guns in parks strips away citizens' constitutional right to protect themselves, he said.

Judge Arlene Singer quizzed the attorney: "Isn't there counter-argument, though, that there are citizens who feel it is safer without the firearm presence?"

"There are those who feel that way," Mr. Stephenson responded, "but they lost that argument in the legislature."

The attorney added: "Does anybody really, really believe that concealed-carry licensees went to the trouble of getting their license so they could mug people in the park?"

Upholding Toledo's park rule would allow cities to pass whatever rules they want, Mr. Stephenson argued.

"Why single out a concealed-carry statute?" he said. "They're talking about the [Ohio] Revised Code. Can they say, 'We're going to have special rules with regard to theft now in Toledo? So if you steal a bicycle it's not theft, it's borrowing a bicycle? We're not going to enforce it because it's not the state's business?'●"

Pressed by Judge Dennis Parish, Mr. Madigan also exaggerated his case.

"So your position is that the local regulation takes precedent over the general laws of the state of Ohio?" the judge asked.

"Yes," Mr. Madigan retorted, "it does because the Constitution of Ohio says so."

If the judges don't back a city's authority to pass its own regulations, Toledo city supervisors would be stripped even of the authority to prohibit their own park workers from carrying firearms while on the job, he said.

"Do we have that power anymore? If you say no, then I guess we don't," Mr. Madigan said. "I guess we have to let them come to work with guns."

Mr. Beatty was out of town for work and did not attend the hearing.

Contact Robin Erb at:

robinerb@theblade.com

or 419-724-6133.