Having Weapons Under Disability: Separating Fact from Fiction
A police officer initiates a traffic stop on a car with several individuals inside. Upon approaching the vehicle, the officer sees a gun sitting in plain view on the center console. The officer immediately pulls all individuals out of the car.
The officer discovers that the driver has a warrant out of municipal court for failure to pay court costs on a misdemeanor assault case. The front seat passenger has prior convictions for possession of marijuana, Vicodin and drug paraphernalia, as well as a resisting arrest conviction. One of the rear passengers has prior felony convictions for grand theft, tampering with evidence and forgery.
The officer charges all three individuals with Having Weapons Under Disability. However, he is stunned to find out that all three charges were no billed at grand jury.
What qualifies as a “disability” for purposes of a Weapons Under Disability charge can sometimes be confusing. Laws change, and how those laws are interpreted by the courts is constantly evolving. There are five basic “disabilities” under Ohio law, and reviewing them can help all police officers separate the myths from the facts. Those five disabilities are:
1. A prior felony drug offense
This is one of the most common disabilities, and also one of the most misinterpreted. Before House Bill 86 was enacted, any drug offense qualified, including misdemeanors. However, only felony drug offenses now qualify. A juvenile offense also counts.
2. A prior felony offense of violence
Murder, rape, felonious assault, aggravated assault, aggravated robbery, aggravated burglary, felony domestic violence and robbery are the most common. The statute lists many crimes that are considered felony offenses of violence, so when in doubt, contact my office or your police legal advisor. As with the drug offenses, a juvenile offense also counts.
3. Fugitive from justice
Most police officers assume that anyone with a warrant qualifies. This is not necessarily true. Before charging under this section, you should first determine if the suspect knew he had a warrant (a necessary requirement) and also whether that suspect was actively avoiding capture by law enforcement. This section would be difficult to prove if the suspect was simply hanging out at home or in his own neighborhood, or if he was otherwise simply going about his normal business.
4. Drug dependent, in danger of drug dependence or alcoholic
This section is rarely used for a disability, but can still be used with the proper proof. If a suspect is actively in drug treatment or was recently released from a drug diversion program, this section may apply.
5. Adjudication of mental incompetence or mental illness
This section is also rarely used, and should not be charged without consulting with the county Prosecutor’s Office or your department’s legal advisor. There would need to be documented proof of a serious mental illness for this to apply.
Another thing to remember, especially when looking at prior convictions as a source of disability, is whether there truly was a criminal conviction in the first place. Sometimes an arrest report, LEADS or other computer check will show an arrest but not a conviction. For example, if the arrest was for a felony drug offense but the suspect pled to a reduced misdemeanor charge, that would not qualify as a disability. Only looking at the court’s original journal entry can confirm a prior conviction.
When in doubt, contact the county Prosecutor’s Office or your police legal advisor. As always, knowing what separates fact from speculation when it comes to the law and how it is interpreted can increase the chances of a successful prosecution.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
Sherri Bevan Walsh
Summit County Prosecuting Attorney