Posted by Eugene Volokh:
Right To Bear Arms Relevant to Whether Possession of Gun While Indictment Is a
Strict Liability Offense:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1229013940
From State v. Clay, just handed down by the Ohio Supreme Court. (I'll
add a link when I get home tonight -- I'm on jury duty now, and the
computers they provide make it hard to copy and paste link
information.)
The appellant was convicted of having a weapon while under a
disability under R.C. 2923.13(A)(3) because he was �under
indictment� on drug charges at the time he possessed a weapon....
On March 5, 2006, at approximately 1:00 a.m. outside the Gin-Gin
bar in Cleveland, appellant, Howard Clay, shot and wounded
Christopher Graham. At the time of the shooting, Clay was under
indictment for possession and trafficking of drugs. For the 2006
shooting, a grand jury indicted Clay on charges of felonious
assault under R.C. 2903.11, firearm specifications under R.C.
2941.141 and 2941.145, and having a weapon under a disability under
R.C. 2923.13, i.e., using a weapon while under indictment for
possession and trafficking of drugs under R.C. 2923.13(A)(3)....
Clay argued that there was insufficient evidence to convict him of
having a weapon while under a disability because he was unaware
that he was under indictment at the time of the shooting.... The
court of appeals affirmed the trial court�s judgment of conviction,
finding that R.C. 2923.13(A)(3) is a strict-liability offense....
R.C. 2923.13 ... provides: �(A) Unless relieved from disability as
provided in section 2923.14 of the Revised Code, no person shall
knowingly acquire, have, carry, or use any firearm or dangerous
ordnance, if ... (3) The person is under indictment for or has been
convicted of any offense involving the illegal possession, use,
sale, administration, distribution, or trafficking in any drug of
abuse ....�
Because R.C. 2923.13(A)(3) has no culpable mental state [included
as to the element of the person's being under indictment], the
question now becomes whether the General Assembly plainly intended
R.C. 2923.13(A)(3) to impose strict liability or whether R.C.
2901.21(B) [a default mental state provision] supplies the culpable
mental state of recklessness....
[P]ossessing a weapon, when the weapon is a firearm, is a
constitutionally protected right [under the Ohio Bill of Rights]
subject only to limited restrictions. And in the instant case, it
is only the additional fact of being �under indictment� that made
possessing the firearm a crime under R.C. 2923.13.... Further, ...
there are no �other indications outside� the language of R.C.
2923.13(A)(3) that plainly indicate an intent to impose strict
liability. Specifically, we find no �strong stance� by the General
Assembly against possession of firearms per se, as we found in [an
earlier case] with regard to possession of child pornography....
We find that ... the General Assembly did not plainly intend to
impose strict liability. Where a statute lacks [an explicitly
provided] mental state and the General Assembly did not intend
strict liability, the mental state of recklessness applies under
R.C. 2901.21(B). Accordingly, for purposes of proving the offense
of having a weapon while under a disability pursuant to R.C.
2923.13(A)(3), the mental state of recklessness applies in
determining whether the defendant is aware that he or she is �under
indictment.�
Because the trial court never determined whether Clay acted
recklessly with regard to being aware that he was �under
indictment,� we remand the cause to the trial court to determine
that issue.
This echoes the First Amendment principle that strict liability is
usually forbidden in cases where, but for a reasonable error (or
sometimes even just honest error) about a fact, the speech would be
constitutionally protected. A few cases have likewise held the same as
to abortion rights, and (as here) as to gun rights. Query whether the
same should be in cases where, but for a reasonable error about a
fact, a sexual act would be protected by the sexual autonomy right
secured under Lawrence v. Texas and under various state constitutions
-- the chief example of such a fact would be whether the other party
is under 18; many states do provide strict liability in such
situations. (I've blogged about this in the past, both as to gun
rights and as to sexual autonomy rights, but as I noted above I'm
having a hard time getting links in this computer setup.)
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