In 2023, a prosecutor, using a grand jury, brought an indictment against Kendall Brown for robbery. The robbery indictment lead to an charge of possessing a firearm while under indictment. The robbery indictment was dismissed, but the charge of possession of a firearm while under indictment persisted. Brown moved to dismiss the charge for firearms possession while under indictment. The trial court agreed and dismissed the firearms possession charge. The state of Ohio appealed. On January 3, 2025, the State appeals court agreed with the trial court, in a split decision, 2-1.The Court found the statutory ban of possession of a firearm while under indictment was unconstitutional under the Second Amendment. From the decision, Ohio v Kendall Brown:
BERGERON, Judge.
{¶1} This case concerns the State’s power to disarm one of its citizens based solely on the fact that he is under indictment. After defendant-appellee Kendall Brown was indicted for a robbery but released on bail, officers discovered a gun in his home. The State then charged Mr. Brown anew, this time with possessing a firearm while under a disability—specifically, possessing a weapon while under indictment for a felony offense of violence. Mr. Brown moved to dismiss the new indictment, and shortly thereafter, the court dismissed his robbery indictment. He thus maintained, and the trial court agreed, that the Second Amendment to the United States Constitution bars a prosecution like his. The State now appeals, asking us to resolve whether the Constitution prohibits Ohio from disarming an individual based solely on his indictment for a felony offense like robbery. On the facts and history presented in this case, we hold it does. We therefore affirm the trial court’s judgment dismissing Mr. Brown’s indictment.
Kendall Brown had never been convicted of a felony. He had never undergone a trial. He had only been indicted, which is to say, accused by a prosecutor. No Judge and jury had ever considered evidence presented by Kendall Brown or his attorney.
In this particular case, the evidence was weak. The robbery indictment was dismissed before the case ever went to trial. The conduct, keeping (possession) of a weapon is clearly part of the rights protected by the Second Amendment. Only three states have similar laws banning possession for a person under indictiment. The other two states are Hawaii and Washington. Ohio has only been in existence since 1972. There is no evidence felons were disarmed at the founding. From the Ohio Appeals Court Ruling:
The State, quite simply, fails to demonstrate any specific tradition in this country of disarming those indicted for crimes of violence. And an indictment on probable cause cannot be reasonably analogized to a conviction by a jury persuaded of guilt beyond a reasonable doubt.
In Ohio, the prosecutor relies on a nine person grand jury, of which only seven need to agree to obtain an indictment. A grand jury lacks important protections which exist in a jury trial. From the ruling, p14-15:
In presenting to the grand jury, prosecutors are not encumbered by the Ohio Rules of Evidence, see Evid.R. 101(D)(2), or the Fourth Amendment’s exclusionary rule, see United States v. Calandra, 414 U.S. 338, 354 (1974), leaving them free to rely upon hearsay or evidence seized unlawfully. Further, the prosecutor may withhold from the grand jury material evidence that would be exculpatory to the accused. State v. Wilks, 2018-Ohio-1562, ¶ 31, citing United States v. Williams, 504 U.S. 36, 51-52 (1992). This is why, as the old adage goes, many believe that you can indict a ham sandwich.
Indictments are backward looking; surety laws were forward looking.
The right to keep and bear arms, protected by the Second Amendment, was not a privilege one forfeited as a punishment, but a right that yielded when an individual was found by a court to be particularly dangerous. While such determinations were sometimes categorical, they were often, as in the surety laws, individualized and forward-looking.
Disarmament can be included as a condition of bail. The federal statue forbidding sale of firearms to people under indictment is different in a critical way. Simple possession is not covered by the federal statute, it is only forbidden:
"to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
If a person is already in possession of a firearm, before an indictment, the federal law does not require them to forfeit their firearm. The federal law does not prevent someone who is under indictment from carrying a firearm for protection, unless they cross state or international borders.
Analysis: This correspondent believes the federal ban on acquisition, but particularly on transporting a firearm across state boundaries while under indictment, to be unconstitutional as well. As part of bail proceedings, restrictions may be put on travel. Those are individualized restrictions on a case by case basis, and may be appealed. The federal ban for people under indictment lacks serious due process protections.
©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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