Author
Message
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Wed Mar 18, 2015 7:39 pm
Liberty wrote:
JediSkipdogg wrote:

That's where I'm not following liberty. He at one point says if they are too dangerous to be in society they should be locked up. So we place a means to lock them up longer since the original crime doesn't allow it due to the 8th Amendment and he's against it.

We already have the means to lock them up for the same amount of time, via the repeat violent offender specification. The new proposal in SB 97 just makes it contingent upon the person being a firearms owner.

Suffice it to say that there are a lot more findings (and a lot more serious findings) which must be proved in order to impose a sentence under a "repeat violent offender" specification pursuant to R.C. 2929.01(CC) and 2929.14(B)(2) than are required for sentencing as a "violent career criminal" under SB 97. I won't bother to list them; anyone who is interested can look them up.
Top
Offline
Joined: Sat Oct 05, 2013 1:42 pm
Posts: 111
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Wed Mar 18, 2015 8:00 pm
Werz wrote:
Suffice it to say that there are a lot more findings (and a lot more serious findings) which must be proved in order to impose a sentence under a "repeat violent offender" specification pursuant to R.C. 2929.01(CC) and 2929.14(B)(2) than are required for sentencing as a "violent career criminal" under SB 97. I won't bother to list them; anyone who is interested can look them up.

You have to actually demonstrate that the person is a danger to society under current law. SB 97 relies heavily upon the fact that the person is a firearms owner to establish such dangerousness.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
Top
Offline
User avatar
Joined: Tue Jun 28, 2011 10:45 am
Posts: 444
Location: Akron
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Thu Mar 19, 2015 1:44 am
Why do you keep saying owner? The last I checked the bill says under the offender's control. Because a firearm is in my house does not mean it is under my control. You are taking a bill and stretching it pretty far.
Top
Offline
Joined: Mon Sep 26, 2011 6:17 am
Posts: 512
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Thu Mar 19, 2015 1:55 am
And you mentioned back on page 1 that there's no current laws that deal with this....

2903.211 Menacing by stalking.
(f) While committing the offense under division (A)(1) of this section or a violation of division (A)(3) of this section based on conduct in violation of division (A)(1) of this section, the offender had a deadly weapon on or about the offender's person or under the offender's control. Division (B)(2)(f) of this section does not apply in determining the penalty for a violation of division (A)(2) of this section or a violation of division (A)(3) of this section based on conduct in violation of division (A)(2) of this section.

2911.02 Robbery.
(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the offender's control;


2911.11 Aggravated burglary.
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply:
(2) The offender has a deadly weapon or dangerous ordnance on or about the offender's person or under the offender's control.

2929.13 Sanction imposed by degree of felony.
(b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply:
(i) The offender committed the offense while having a firearm on or about the offender's person or under the offender's control.


2941.141 Firearm on or about offender's person or under offender's control specification.
(A) Imposition of a one-year mandatory prison term upon an offender under division (B)(1)(a) of section 2929.14 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging the offense specifies that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense. The specification shall be stated at the end of the body of the indictment, count, or information, and shall be in substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors (or insert the person's or the prosecuting attorney's name when appropriate) further find and specify that (set forth that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense.)"


There's a bunch more but I got tired of copying them all. There's nothing about brandishing in any of those as you claim in your first page where you refuted when Werz asked about anyone being convicted of these offenses where the firearm was in their home and they were elsewhere committing them. So obviously we already have the wording in many other areas of the law.

So again, as Werz asked...

Quote:
Please designate the identity of anyone who has ever been convicted of a firearm specification for having a firearm locked away in his own home while committing a burglary in another home. Any county in Ohio will be acceptable.
Top
Offline
Joined: Mon Sep 26, 2011 6:17 am
Posts: 512
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Thu Mar 19, 2015 10:20 am
I dealt with this issue in my third and fifth posts of the second page.

Having a firearm "under the offender's control" is a very well defined legal concept known as constructive possession. People are convicted all the time of having weapons while under disability pursuant to R.C. § 2923.13 for constructive possession after a firearm is found in their home or car when they are not actually present specifically because the firearm is deemed to be under their control.

Ohio law defines firearms possession for the purposes of sentence enhancements in two ways:

1. "[T]hat the offender had a firearm on or about the offender's person or under the offender's control while committing the offense" that requires the imposition of a one year term of mandatory incarceration, i.e., constructive possession. See http://codes.ohio.gov/orc/2941.141.
2. "[T]hat the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense" that requires the imposition of a three years term of mandatory incarceration. See http://codes.ohio.gov/orc/2941.145.

R.C. § 2914.145 clearly requires that the person committing the crime have a firearm with him/her, which results in three extra years. On the other hand, R.C. § 2914.141 very clearly applies when the person committing the crime "had a firearm on or about the offender's person or under the offender's control while committing the offense" and only imposes one additional year.

The Ohio legislature deliberately defined these differently. Both statutes were reauthorized together in HB 86 by 129th General Assembly--so, they were well aware of the different definitions. Moreover, using the Brady bunch's logic, a person is more dangerous if they are carrying a firearm than if they just own one, and therefore, carrying one during the commission of a crime gets that person more time in prison than the mere fact that the person is a firearms owner.

SB 97 defines firearm possession for the purpose of its specifications the same way that the legislature defined it in R.C. § 2914.141, i.e., constructive possession.

Now, there are cases like the one cited by Werz (i.e, State v. Byrd, 2012-Ohio-5728), where activist Ohio district courts have taken the heightened possession requirement from R.C. § 2941.145 and applied it to R.C. § 2941.141. I cited three other cases where that same court came to the opposite conclusion. See State v. Easterly, 8th Dist. No. 94797, 2011-Ohio-215, ¶ 24; State v. Benton, 8th Dist. No. 82810, 2004-Ohio-3116; and State v. Davis, 8th Dist. No. 93844, 2010-Ohio-5123. It upheld firearms specifications in each of those cases. (1) Easterly committed a crime in the garage of his business while his firearm was locked in his office in another part of the building. (2) Benton committed a crime in his home and the police found a firearm in his wife's car in a detached garage. (3) Davis rented a basement and had access to common areas such as the kitchen and living areas of a home. Drugs were found in the basement and a firearm, that Davis denied owning, was found in the common area.

I don't have a case on the exact situation that you want, but I am sure I could find one if I looked long enough. I am also sure I would come across more cases like State v. Byrd, 2012-Ohio-5728.

On page two of this thread I said this:

Liberty wrote:
Moreover, rules of statutory interpretation support the 8th District's decisions in Easterly, Benton and Davis. Constructive possession of firearms is well established and includes having a firearm in one's home whether present or not. The specification found in R.C. § 2941.141 is only one year and the legislature defined it as "that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense." The specification found in R.C. § 2941.145 is more serious and is for three years, and the legislature defined it as " that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense."

You have added the heightened requirement from R.C. § 2941.145 to R.C. § 2941.141 in order to justify your position. If the legislature really meant for the one year specification, found in R.C. § 2941.141, to apply only if the offender possessed the firearm, or used it to facilitate the offense, it would have used the language that it had already used in R.C. § 2941.145. This is how a higher court would rule on such matters.

It really is absurd to think that the Ohio Supreme Court would not rule that way.

I guess the point is, if the current legislature really wants the specifications in SB 97 to apply only to offenders who have "a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense," it should say so.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
Top
Offline
User avatar
Joined: Tue Jun 28, 2011 10:45 am
Posts: 444
Location: Akron
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Thu Mar 19, 2015 5:21 pm
2923.11 Weapons control definitions.
Quote:
As used in sections 2923.11 to 2923.24 of the Revised Code:
(A) "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.


Blacks Law Dictionary - 6th
Quote:
Possess. To occupy in person; to have in one's actual and physical control; to have the exclusive detention and control of; to have and hold as property; to have a just right to; to be master of; to own or be entitled to. Term "possess," under narcotic drug laws, means actual control, care and management of the drug. Collini v. State, Tex.Cr.App., 487 S.W.2d 132, 135. Defendant "possesses" controlled substance when defendant knows of substance's presence, substance is immediately accessible, and defendant exercises "dominion or control" over substance. State v. Hornaday, 105 Wash.2d 120, 713 P.2d 71, 74.

Quote:
Possession. Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel, 219 Kan. 616, 549 P.2d 568, 569.......

The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.

Criminal law. Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, U. S. v. Craig, C.A.Tenn., 522 F.2d 29, 31; as well as joint or exclusive, Garvey v. State, 176 Ga.App. 268, 335 S.E.2d 640, 647. The defendants must have had dominion and control over the contraband with knowledge of its presence
and character. U. S. v. Morando-Alvarez, C.A. Ariz., 520 F.2d 882, 884. See also Possess.

Possession, as an element of offense of stolen goods, is not limited to actual manual control upon or about the person, but extends to things under one's power and dominion. McConnell v. State, 48 Ala.App. 523, 266 So.2d 328, 333.

Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. U. S. v. Ellison, C.A.Cal., 469 F.2d 413, 415.

To constitute "possession" of a concealable weapon under statute proscribing possession of a concealable weapon by a felon, it is sufficient that defendant have constructive possession and immediate access to the weapon. State v. Kelley, 12 Or.App. 496, 507 P.2d 837, 839.


Quote:
Constructive possession. A person has constructive possession of property if he has power to control and intent to control such item. Com. v. Stephens, 231 Pa.Super. 481, 331 A.2d 719, 723. Exists where one does not have physical custody or possession, but is in a position to exercise dominion or control over a thing. U. S. v. DiNovo, C.A.lnd., 523 F.2d 197, 201.


There is a difference in the criminal statutes between using a "Deadly weapon" and using a “firearm.” Firearm has its own definition. Deadly weapon encompasses the firearm, as well as other objects used as a "Deadly weapon" such as a pencil.

2929.13 Sanction imposed by degree of felony.
Quote:
(b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply:
(i) The offender committed the offense while having a firearm on or about the offender's person or under the offender's control.
(vi) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.


(i) allows a prison term just because you had a firearm even though the person did NOT use it.
(vi) allows a prison term because used a pencil to threaten harm.

2911.01 Aggravated robbery.
Quote:
(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it;


Aggravated robbery with a pencil.

Now we have to analyze all the case law.

At this point we have an absolute maybe......

And at this point Werz has way more experience at prosecuting felonies and sentencing procedures than anyone of us. Therefore, at this point I must defer to Werz's experience.
Top
Offline
Joined: Tue Jun 16, 2009 10:45 am
Posts: 2640
Location: Too close to Cincinnati
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Thu Mar 19, 2015 9:10 pm
color of law wrote:
And at this point Werz has way more experience at prosecuting felonies and sentencing procedures than anyone of us. Therefore, at this point I must defer to Werz's experience.

So, a representative of the government (i.e., prosecutor) throws a bunch of legal terms out there (albeit, erroneous) in order to protect legislation that would give him enormous power, and you just throw your hands up and believe it because he claims to have a lot of experience while I don't brag about my experience and education. I really wish you guys would think for yourselves. I explain these types of legal concepts to college students all the time. The ones who do the reading, pay attention and ask questions when they don't understand things get very good grades. The ones who don't put in the work fail. If you read the references that I have cited, you will see that I am right.

let's take Werz at his word and assume that no prosecutor would use the specifications in SB 97 in a situation where a person only had constructive possession of a firearm (even though it expressly authorizes it by using the language in R.C. § 2941.141 instead the language in R.C. § 2941.145), do you think justice is served when someone gets several years more in prison because he/she used a firearm to commit a violent crime than someone who did the same thing with a baseball bat, hammer or a car? Also, do you think that such a public policy vilifies private ownership of firearms and would be used to further other more egregious gun control measures?

Before you answer that question you should read this: http://www.buckeyefirearms.org/sb332-be ... ot-her-gun.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
Top
Offline
User avatar
Joined: Tue Jun 28, 2011 10:45 am
Posts: 444
Location: Akron
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Fri Mar 20, 2015 12:47 am
Liberty, I don't know how old you are, but I'm retired and have been around this stuff for many years dealing with bureaucrats. 90% of which are mind-numbed robots who believe they have power.

To date, for the most part the number of personal criminal court battles I've had I've never lost. One split decision in the court of appeals. And I won't go into my checkered past.

With that said, there is that 10% of bureaucrats that are actually on our side; they understand their oath of office and they understand they are public servants.

Werz is a public servant. And being a public servant he can be either in the 90% category, wanting the sell you a pig in a poke, or be in the 10% category, imparting his knowledge to give us a better understanding of the inter-workings of his world.

Werz has never given me a reason to question his integrity. And that does not mean I always agree with Werz or his analysis of law.

I believe this issue is at the point of beating a dead horse. If this bill gets legs, Liberty, you can testify before any committee venting the bill and voice your displeasure.
Top
Offline
Joined: Tue Jun 16, 2009 10:45 am
Posts: 2640
Location: Too close to Cincinnati
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Fri Mar 20, 2015 11:05 am
Were you guys in support of SB 348, BS 49 and SB 332 that BFA "strongly opposed" here: http://www.buckeyefirearms.org/sb332-be ... ot-her-gun? It is the same issue. Those bills added 10 years for using a firearm to harm children. SB 97 can add up to 11 years for 2 or more specific violent offenses (but not for endangering children) if a firearm is under the offender's control. The only real difference is that SB 348, BS 49 and SB 332 were sponsored by democrats and SB 97 is sponsored by republicans.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
Top
Offline
User avatar
Joined: Tue Jun 28, 2011 10:45 am
Posts: 444
Location: Akron
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Sun Mar 22, 2015 9:06 pm
I found something else that prior SB 348, BS 49 and SB 332 have in common with the pending SB 97: Support from Toby Hoover and her Ohio Coalition Against Gun Violence. See: http://ohioceasefire.org/issues. Did anyone here ever think that Werz and Toby Hoover would support the same gun legislation? Geeez.....I hope BFA don't flip flop like that.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
Top
Offline
User avatar
Joined: Tue Jun 28, 2011 10:45 am
Posts: 444
Location: Akron
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Sun May 17, 2015 10:09 am
SB 97 passed the Senate on April 29th. You won't see anything about this on BFA website; you have to go to the Ohio Coalition Against Gun Violence website (see http://ohioceasefire.org/content/ohio-bills-0) to read about it. BFA has strongly opposed this type of legislation in the past that resulted in failure of passage (see http://www.buckeyefirearms.org/sb332-be ... ot-her-gun.). Why are the representatives who voted for this gun control legislation still enjoying A ratings from BFA?

WHERE ARE YOU BFA LEADERSHIP? Why have some on this forum changed your opinion on the issues in SB 97? Why are many of you silent about these issues now after being so vocal in opposition to them in the past? Have you all gone to the dark side? Is it that you all are not really freedom advocates and gun control is fine if Republicans are the ones doing it? I understand why (while still wrong) Werz supports it because it gives his government job enormous power to wield over the rest of us, but the rest of you?

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
Top
Offline
User avatar
Joined: Tue Jun 28, 2011 10:45 am
Posts: 444
Location: Akron
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Sun May 17, 2015 5:53 pm
Liberty wrote:
I understand why (while still wrong) Werz supports it because it gives his government job enormous power to wield over the rest of us, but the rest of you?

I was not aware that "the rest of us" included a substantial population of persons previously convicted of violent felony offenses.
Top
Offline
Joined: Sat Oct 05, 2013 1:42 pm
Posts: 111
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Sun May 17, 2015 8:50 pm
Werz wrote:
Liberty wrote:
I understand why (while still wrong) Werz supports it because it gives his government job enormous power to wield over the rest of us, but the rest of you?

I was not aware that "the rest of us" included a substantial population of persons previously convicted of violent felony offenses.

The essential element of the proposed new criminal designation that I was referring to was that the person be a firearms owner. I don't have a problem with locking up repeat violent offenders for longer periods of time. What I have a problem with is only locking them up for longer periods of time if they are firearms owners.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
Top
Offline
User avatar
Joined: Tue Jun 28, 2011 10:45 am
Posts: 444
Location: Akron
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Mon May 18, 2015 2:26 am
Liberty wrote:
Werz wrote:
Liberty wrote:
I understand why (while still wrong) Werz supports it because it gives his government job enormous power to wield over the rest of us, but the rest of you?

I was not aware that "the rest of us" included a substantial population of persons previously convicted of violent felony offenses.

The essential element of the proposed new criminal designation that I was referring to was that the person be a firearms owner. I don't have a problem with locking up repeat violent offenders for longer periods of time. What I have a problem with is only locking them up for longer periods of time if they are firearms owners.

Well, since those people have been twice convicted of violent felony offenses, I think you meant to say "illegal firearms owners," yes?
Top
Offline
Joined: Sat Oct 05, 2013 1:42 pm
Posts: 111
Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Mon May 18, 2015 11:33 am
Lets play your game and propose a specification called an a-hole prosecutor specification that defines prosecutors who commit more than one felony as an a-hole prosecutor that carries a 10 year mandatory prison term in addition to the statutory time for the crimes they committed. Other people who commit the same crimes would just serve the statutory time. We could base the need for such legislation on this tool: http://www.sconet.state.oh.us/rod/docs/ ... io-181.pdf. Would you be in favor of that?

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
Top
Offline
User avatar
Joined: Tue Jun 28, 2011 10:45 am
Posts: 444
Location: Akron
Display posts from previous:  Sort by  
 Page 5 of 7 [ 99 posts ] Go to page Previous  1, 2, 3, 4, 5, 6, 7  Next

Who is online

Users browsing this forum: No registered users and 1 guest

 
You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot post attachments in this forum
Search for:
Jump to: