TENTH DISTRICT COURT OF APPEALS

FRANKLIN COUNTY

OHIOANS FOR CONCEALED :

CARRY, ET AL., :
: Case No. 18-AP-00605
Plaintiff/Appellee/ :
Cross-Appellant : REGULAR CALENDAR
v. :
: On appeal from the Franklin
: County Court of Common Pleas
: Trial Case No. 18 CV 005216
: (Judge Cain)
CITY OF COLUMBUS, ET AL., :
:
Defendant/Appellant :
Cross-Appellee

BRIEF OF DEFENDANT/APPELLANT/CROSS-APPELLEE
CITY OF COLUMBUS, ET AL.,

Lara Baker-Morrish (0063721) Eric Tirschwell (pro hac vice)

Charles Campisano (0095201)
Richard N Coglianese (0066830)
City of Columbus, Dept. of Law
Zach Klein, City Attorney
77 North Front Street, 4th Fl.
Columbus, Ohio 43215
(614) 645-7388 phone
lnbaker-morrish@columbus.gov
cpcampisano@columbus.gov
rncoglianese@columbus.gov
Everytown for Gun Safety
132 East 43rd Street, Suite 657
New York, NY 10017
(646) 324-8222
etirschwell@everytown.org
Counsel for the
Defendants/Appellants/Cross-
Appellees
 TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................... i

TABLE OF AUTHORITIES ..................................................................iii
STATEMENT OF THE ASSIGNMENTS OF ERROR ........................ vi
ISSUES PRESENTED FOR REVIEW ................................................viii
INTRODUCTION .................................................................................... 1
STATEMENT OF FACTS AND OF THE CASE .................................. 5
ARGUMENT ......................................................................................... 11
I. STANDARD OF REVIEW .......................................................... 11
II. THE TRIAL COURT ERRED IN FINDING THAT
PLAINTIFFS HAD STANDING TO BRING THEIR
CLAIMS. ....................................................................................... 13
A. The Ohio Constitution requires that any party that
brings a case in common pleas court must have
standing to sue ...................................................................... 14
B. None of the Plaintiffs had standing to bring a taxpayer
action against the City of Columbus .................................... 16
C. Plaintiffs Also lacked standing to bring a declaratory
judgment action against the City of Columbus .................... 18
III.THE TRIAL COURT ERRED IN GRANTING A
PERMANENT INJUNCTION WITHOUT PROVIDING
NOTICE THAT IT WOULD ADVANCE THE MATTER
TO A TRIAL ON THE MERITS. ................................................ 23
IV. THE TRIAL COURT ERRED IN ALLOWING THE
TESTIMONY OF AN EXPERT WITNESS DESPITE THE
LACK OF NOTICE AND LACK OF EXPERT REPORT. ........ 30

i
V. THE CITY HAS THE AUTHORITY TO PROMULGATE
C.C.C. 2323.171 BECAUSE IT REGULATES FIREARM
ACCESSORIES, NOT COMPONENTS, AND
THEREFORE DOES NOT CONFLICT WITH R.C. 9.68 .......... 32
A. R.C. 9.68 does not preempt local ordinances prohibiting
firearms accessories as they are not regulated by R.C. 9.68 .... 33
B. Since illegal rate-of-fire acceleration devices, such as
bump stocks, are considered to be accessories within the
firearms industry, the trial court erred, as a matter of law,
in finding them to be components ............................................ 36
C. In concluding that bump stocks are components rather
than accessories, the trial court abused its discretion by
failing to engage in appropriate fact-finding and erred as a
matter of law in interpreting the terms used in R.C. 9.68
and the City Ordinance ............................................................. 42
CONCLUSION ...................................................................................... 48
CERTIFICATE OF SERVICE .............................................................. 50

ii
 TABLE OF AUTHORITIES

Cases
Akins v. United States, 312 F. App’x 197 (11th Cir. 2009) .................... 38
Autumn Care Ctr., Inc. v. Todd, 2014-Ohio-5235, 22 N.E.3d 1105 (5th
Dist.) ..................................................................................................... 19
Bank of Am. v. Stevens, 4th Dist. Hocking No. 16CA24, 2017-Ohio-
9040. ..................................................................................................... 15
Bd. of Educ. Ironton City Schools v. Ohio Dep’t of Educ., 4th Dist.
Lawrence No. CA92-39, 1993 Ohio App. LEXIS 3476 (June 29, 1993)
.............................................................................................................. 26
Bexley v. Duckworth, 10th Dist. Franklin No. 99AP-414, 2000 Ohio
App. LEXIS 817 (March 7, 2000) ....................................................... 26
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) ................................ 13
Chandlers Lane Condo. Owners Ass’n v. Gillespie, 8th Dist. Cuyahoga
No. 105097, 2017-Ohio-2862. ............................................................. 25
Dayton v. State, 151 Ohio St.3d 168, 2017-Ohio-6909 .......................... 11
Fire Solutions, LLP v. Bump Fire Systems, N.D. Tex. No. 3:14-CV-
3358, 2016 U.S. Dist. LEXIS 83005 (April 14, 2016). ....................... 38
Hamilton v. Ohio Dep’t of Health, 2015-Ohio-4041, 42 N.E.3d 1261, ¶
23 (10th Dist.)....................................................................................... 19
Hoffman v. State Med. Bd., 113 Ohio St.3d 376, 2007-Ohio-2201 ........ 37
Koehring v. Ohio State Dep’t of Rehab. & Corr., 10th Dist. Franklin No.
06AP-396, 2007-Ohio-2652 ................................................................. 12
McBee v. Toledo, 6th Dist. Lucas No. L-13-1101, 2014-Ohio-1555 ..... 17
Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496
.............................................................................................................. 12
Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270 ..................... 34
Ohioans for Concealed Carry, 2017-Ohio-1560 .................................... 17
Ohioans for Concealed Carry, Inc. v. Cleveland, 2017-Ohio-1560, 90
N.E.3d 80 .............................................................................................. 17
Ohio Licensed Bev. Ass’n v. Ohio Dep’t of Health, 10th Dist. Franklin
No. 07AP-490, 2007-Ohio-7147 .......................................................... 21

iii
Ohio Serv. Group, Inc. v. Integrated & Open Sys. L.L.C., 10th Dist.
Franklin No. 06AP-433, 2006-Ohio-6738 ........................................... 12
Portage Cty. Bd. of Comm’rs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-
954 .................................................................................................. 12, 37
Preterm-Cleveland, 2018-Ohio-441, ¶ 30 quoting Davis v. F.E.C., 554
U.S. 724, 734 (2008). ........................................................................... 15
Reywal Co. v. Dublin, 10th Dist. Franklin No. 15AP-635, 2017-Ohio-
367, ¶ 9. ................................................................................................ 13
Seasonings Etcetera, Inc. v. Nay, 10th Dist. Franklin No. 92AP-1056,
1993 Ohio App. LEXIS 1182 (Feb. 23, 1993) ..................................... 25
State ex rel. Clay v. Cuyahoga Cty. Med. Exam’rs Office, 152 Ohio
St.3d 163, 2017-Ohio-8714 .................................................................. 36
State ex rel. Food & Water Watch v. State, 10th Dist. Franklin No.
14AP-958, 2016-Ohio-3135, ................................................................ 19
State ex rel. Masterson v. Ohio State Racing Comm’n, 162 Ohio St. 366,
123 N.E.2d 1 (1954) ............................................................................. 17
State ex rel. Presbyterian Ret. Servs. v. Indus. Comm’n of Ohio, 151
Ohio St.3d 92, 2017-Ohio-7577 ........................................................... 35
State v. Rentex, Inc., 51 Ohio App. 2d 57, 365 N.E.2d 1274 (8th Dist.
1977). .................................................................................................... 37
Struthers v. Sokol, 108 Ohio St. 263 (1923), .......................................... 34
Thompson v. Hayes, 10th Dist. Franklin No. 05AP-476, 2006-Ohio-
6000, ..................................................................................................... 20
Turoff v. Stefanac, 16 Ohio App.3d 227, 475 N.E.2d 189 (8th Dist.
1984) ..................................................................................................... 12
Xenia v. Schmidt, 101 Ohio St. 437, 130 N.E. 24 (1920) ....................... 11
Statutes
Cincinnati Municipal Code 910-24 ........................................................... 2
Columbia Code of Ordinances 14-100...................................................... 2
Denver Code of Ordinances 39-130(j) ...................................................... 2
Fla.Stat. 790.222 ........................................................................................ 2
R.C. 1.42 .................................................................................................. 45
R.C. 733.56, 733.59 ................................................................................. 16
Wash.Rev.Code 9.41.220 .......................................................................... 2

iv
Other Authorities
27 C.F.R. 53.61(b)(2) .............................................................................. 40
27 C.F.R. 53.61(b)(5)(iv). ....................................................................... 40
83 C.F.R. 13442 (2018). .......................................................................... 41
83 C.F.R. 13443. ..................................................................................... 42
83 C.F.R. 13449. ..................................................................................... 42

v
 STATEMENT OF THE ASSIGNMENTS OF ERROR
PRESENTED FOR REVIEW

1. The trial court erred by finding Plaintiffs had standing to bring the

instant action. (R. 82, pp. 5-6).

2. The trial court erred by de facto consolidating the final trial on the

merits on Plaintiff's’ claim for a permanent injunction/declaratory

judgment with the hearing on Plaintiffs’ application for a

preliminary injunction as to their challenge to C.C.C. 2323.171

pursuant to R.C. 9.68 without providing notice of the same and

over the express objection of the City. (R. 82; Transcript pp. 105-

07).

3. The trial court erred by entering a final order conclusively deciding

the issue of whether C.C.C. 2323.171 is in conflict with R.C. 9.68

as a matter of law at a hearing on a motion for a preliminary

injunction even though the limited and incomplete record evinced

conflicting evidence as to a disputed matter of fact and the City

expressly objected to a waiver of trial on the merits. (R. 55, 82; Tr.

p. 106).

vi
4. The trial court erred by qualifying an expert witness and allowing

his testimony to be offered into evidence over the City’s objection

and despite Plaintiffs’ failure to provide a copy of any expert

witness report. (Tr. pp. 20-23).

5. The trial court erred in finding C.C.C. 2323.171 to be in conflict

with R.C. 9.68 in contravention of the Ohio Constitution’s Home

Rule Amendment. (R. 82, pp. 7-11).

vii
 ISSUES PRESENTED FOR REVIEW

1. Whether the trial court erred in finding that an individual who does
not own and has not declared an intention to purchase a rate-of-fire
accelerator firearms accessory has standing to challenge a
municipal ordinance prohibiting the possession of such a device.
2. Whether the trial court erred in finding that organizations that do
not have members who own or intend to purchase a rate-of-fire
accelerator firearms accessory have standing to challenge a
municipal ordinance prohibiting possession of such a device.
3. Whether the trial court erred by scheduling a preliminary
injunction hearing but issuing a final ruling on the merits without
providing notice that it intended to do so.
4. Whether the trial court erred in allowing an expert to testify
concerning a rate-of-fire accelerator firearm accessory without first
providing notice and a report in contravention of the court’s local
rules.
5. Whether the trial court erred by finding that the municipal
ordinance regulating firearm accessories conflicted with the state
statute regulating firearms parts and components.
6. Whether the trial court erred in determining that rate-of-fire
accelerators are firearm components, even though substantial and
persuasive evidence shows that the industry considers those items
to be firearms accessories.

viii
 INTRODUCTION

In response to the nation’s ever-growing gun violence epidemic,

the City of Columbus passed a series of gun safety ordinances.

Although Columbus has been fortunate to not have been the location of

a school shooting like in West Liberty, Ohio or Chardon, Ohio, or a

mass shooting such as San Bernardino or Orlando, the City has dealt

with its share of tragedy. Last year alone, the use of firearms resulted in

117 homicides in the City of Columbus. Within the last two years, three

local police officers lost their lives when individuals who were federally

prohibited from possessing a firearm shot and killed them. Against this

backdrop, Columbus exercised its home rule authority to pass common

sense gun safety ordinances in order to protect the health and safety of

its residents.

In the wake of the October 2017 Las Vegas mass shooting, the

City chose to include a bump stock prohibition in its gun safety

ordinance enactment. Bump stocks are devices used to modify a

semiautomatic firearm to allow the firearm to operate like a machinegun.

Machineguns are fully automatic weapons that fire multiple shots with

1
the single compression of a trigger. Semiautomatic weapons, however,

fire only one shot per trigger compression. The average shooter is able

to fire between 45 and 60 rounds per minute using a semiautomatic

weapon. Using a bump stock, that same weapon fires between 400-800

rounds per minute. A bump stock thus fundamentally and qualitatively

changes the character and functionality of the weapon.

Columbus was not alone. Following the Las Vegas massacre,

several states and municipalities across the country prohibited bump

stocks. These included states as disparate as Vermont, Florida, and

Washington as well as cities such as Denver, Colo.; Columbia, S.C.; and

Lincoln, Neb. See, e.g., Fla.Stat. 790.222; Wash.Rev.Code 9.41.220;

Columbia Code of Ordinances 14-100; Denver Code of Ordinances 39-

130(j). Closer to home, Governor John Kasich called on the Ohio

General Assembly to prohibit bump stocks throughout Ohio, while

Cincinnati joined Columbus in passing its own ordinance prohibiting

bump stocks inside its municipal boundaries. Cincinnati Municipal Code

910-24.

2
 The Columbus bump stock ordinance prohibited anyone from

knowingly acquiring, having, carrying, or using an illegal rate-of-fire

acceleration firearm accessory. This included items commonly referred

to as bump stocks, trigger cranks, and slide fires, and also combinations

of parts or components that could be used to create such accessories. A

violation of the Columbus ordinance carried with it a mandatory

minimum of one hundred eighty days in jail and a fine up to $1,500.

After the Plaintiffs filed suit, the trial court conducted a

preliminary injunction hearing. Three days later, the court issued a

ruling striking down the City’s ordinance prohibiting illegal rate-of-fire

acceleration firearm accessories (“bump stock ordinance”) and

permanently enjoining its enforcement. The court found that bump

stocks were “components” of firearms and, accordingly, their regulation

was preempted under R.C. 9.68. The trial court made this finding on an

extremely limited and undeveloped record, and despite substantial

contrary evidence that bump stocks are in fact firearms “accessories”—

consistently and commonly referred to as such in the trade—the

regulation of which is outside the scope of R.C. 9.68.

3
 The decision below invalidating the bump stock ordinance should

be reversed for both procedural and substantive errors that severely

prejudiced the City. First, Plaintiffs lacked standing to challenge the

bump stock ordinance—as no Plaintiff alleged that they owned or

intended to acquire a bump stock—and the trial court’s decision to the

contrary is erroneous.

Second, beyond that dispositive threshold question, the trial court

made repeated errors in summarily, improperly, and prematurely

disposing of the case on the merits. After telling the trial court that the

issues were purely legal and objecting to an evidentiary hearing,

Plaintiffs showed up at the preliminary injunction hearing with a

surprise expert witness—but with no expert report. The trial court not

only allowed that expert to testify, in clear violation of the local court

rules, but then based its final decision exclusively on the expert’s

testimony. Compounding that error, and in clear violation of the Ohio

Rules of Civil Procedure, instead of issuing a decision on the motion for

a preliminary injunction, the trial court entered final judgment against

the City. The court did this without providing prior notice of its

4
intention to merge the preliminary injunction hearing with a trial on the

merits, without either party having requested final relief, over the City’s

clear and repeated objections, and without affording the City an

opportunity to develop the record and make a full evidentiary

presentation on the core question of whether a bump stock is an

accessory or a component of a firearm.

In short, the trial court record reflects multiple erroneous rulings

and a deeply flawed and fundamentally unfair process on multiple

levels; the result was severe prejudice to the City’s rights; and reversal

and dismissal or remand are required for these and other reasons as more

fully set forth below.

STATEMENT OF FACTS AND OF THE CASE

In May of 2018, the Columbus City Council passed several

common sense gun safety ordinances. Specifically at issue in this case

in the court below were Columbus City Code 2323.171—Unlawful

Possession of Firearm Accessory—and Columbus City Code 2323.13—

Misdemeanor Weapons under Disability. The Weapons under Disability

5
Ordinance was upheld in the trial court and is not the subject of this

appeal but is anticipated to be the subject of the cross-appeal. 1

One week after these ordinances took effect, on June 21, 2018, the

Plaintiffs/Appellees/Cross-Appellants (“Plaintiffs”) filed a lawsuit along

with a motion for a temporary restraining order and an identical motion

for preliminary injunction against Columbus City Attorney Zach Klein

and the City of Columbus the Defendants/Appellants/Cross-Appellees

(collectively “the City”). (R. 11, 12, 13). The trial court conducted a

hearing on the motion for a temporary restraining order hours after the

motion was filed. It granted the Plaintiffs’ motion for a temporary

restraining order and enjoined both the bump stock ordinance and the

weapons under disability ordinance. (R. 37). The trial court’s decision

on the temporary restraining order included a notice setting the

preliminary injunction motion for hearing on July 9, 2018. (R. 37).

1
The Weapons under Disability Ordinance prohibits three classes of individuals from knowingly
acquiring, having, carrying, or using a firearm: 1) individuals under indictment for, or convicted
of, those violent felonies not covered by the state weapons under disability law; 2) individuals
who are the subject of a court issued protective order finding them to be a credible threat to the
physical safety of an intimate partner or child; and 3) individuals who have been convicted of
misdemeanor domestic violence.

6
 On June 26, 2018, the City filed its answer to the Plaintiffs’

complaint and on June 29th, the City filed its opposition to the Plaintiffs’

motion for a preliminary injunction. (R. 46, 47). Also on June 29th, the

City filed a Notice with the trial court requesting that “an evidentiary

hearing be held as part of the July 9, 2018 hearing on the preliminary

injunction.” (R. 55). In that filing, the City gave notice that “they do not

consent to combining the hearing for preliminary injunction with the

trial on the merits.” Id.

On July 2, 2018, the Plaintiffs filed a response to the City’s request

for an evidentiary hearing. In that response, the Plaintiffs took issue

with the suggestion that there was need for any evidence and

underscored their belief that the only issues before the court were purely

legal ones pertaining to the motion for preliminary injunction:

Plaintiffs’ expectation is that the proceeding scheduled for

July 9, 2018 is limited to hearing argument of counsel so that
the Court may determine if presentation of evidence is
warranted, and if so, to establish a time for an appropriate
evidence hearing on a motion for permanent injunction.

(R. 68, p. 3) (emphasis in original).

7
 The City filed a notice of supplemental filing on their opposition to

the preliminary injunction on July 2, 2018. (R. 62). Finally, the

Plaintiffs filed their reply brief on July 6th. (R. 72). The trial court

conducted the preliminary injunction hearing on July 9, 2018.

Despite claiming that the preliminary injunction motion required

no evidence and only the argument of counsel, the Plaintiffs began their

case by presenting the testimony of Jeff Steley, a former Toronto,

Ontario police officer, military contractor, and member of the National

Rifle Association. (Transcript p. 11). The City objected to the Plaintiffs

calling an expert witness without providing any notice or report, and

objected to Steley being qualified as an expert witness, but the court

overruled those objections. (Tr. pp. 20-23).

Steley provided his opinion that a bump stock is a firearms

component, not an accessory. He claimed that a flashlight or a sling

would be considered an accessory but a bump stock is an essential

component in operating a rifle. (Tr. pp. 33-34). He maintained this

opinion despite contrary factual evidence showing that industry

participants, including bump stock manufacturers, repeatedly and

8
consistently refer to bump stocks as an accessory, including in patent

applications filed with the United States Patent Office. (Tr. p. 57).

In order to present evidence concerning the harm that third parties

would suffer if the court entered a preliminary injunction, the City then

introduced testimony from Yasmine Makridis, an Assistant City

Prosecutor specializing in domestic violence prosecutions. Makridis’

testimony was limited to public safety issues pertaining to the Weapons

under Disability Ordinance: she testified about her experiences and the

complete nonexistence of prosecutions by the United States Attorney’s

Office of individuals found in possession of a firearm who had been

federally disqualified due to a prior misdemeanor domestic violence

conviction. (Tr. pp. 62-69). The City also introduced certified copies of

court entries documenting numerous instances of individuals who had

been convicted of domestic violence subsequently being arrested with a

firearm in their possession. (Tr. p. 76).

Toward the end of the preliminary injunction hearing, counsel for

the Plaintiffs notified the Court of their intention to file a summary

judgment motion within 60 days and requested that the court enjoin both

9
of the ordinances that Plaintiffs were challenging. (Tr. p. 87). At the

very end of the hearing, the court informed the parties that it would have

a decision out “on the motion for preliminary injunction” within 14

days. (Tr. p. 105). The court then added:

Well, yes, I think that will probably – the decision on the

preliminary injunction question will probably address all the
issues of the case, so I’d probably – I don’t see why we’d
have to continue the case any longer than that.

(Tr. pp. 105-06). At that point, counsel for both parties reminded the

common pleas court that the City had objected to combining the

preliminary injunction hearing with a trial on the merits. (Tr. p. 106).

The City also reminded the court that neither party had filed any motion

that would place a merits decision before the court. (Tr. p. 107).

On July 12th the court issued a decision in which it granted a

permanent injunction against the bump stock ordinance and held that the

weapons under disability statute did not conflict with Ohio law, allowing

that ordinance to be enforced. (R. 82). The trial court affixed a case

termination disposition to the decision. Id. The City timely filed its

10
notice of appeal with respect to the bump stock ordinance on August 9,

2018. (R. 104).

ARGUMENT

I. Standard of Review

When considering the constitutionality of a legislative enactment,

the court must “presume the constitutionality of the legislation, and the

party challenging the validity of the statute bears the burden of

establishing beyond a reasonable doubt that the statute is

unconstitutional.” Dayton v. State, 151 Ohio St.3d 168, 2017-Ohio-

6909, ¶ 12 quoting Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-

5367, ¶ 18. “A legislative act is presumed in law to be within the

constitutional power of the body making it, whether that body be a

municipal or a state legislative body.” Xenia v. Schmidt, 101 Ohio St.

437, 130 N.E. 24 (1920), paragraph one of the syllabus. Plaintiffs have

“a heavy burden” when challenging the presumption of constitutionality.

Dayton at ¶ 12 citing Rocky River v. State Emp. Relations Bd., 43 Ohio

St.3d 1, 10, 539 N.E.2d 103 (1989).

11
 The question of whether a party has standing to bring a complaint

is a legal question and is subject to de novo review. Portage Cty. Bd. of

Comm’rs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, ¶ 90; see also

Koehring v. Ohio State Dep’t of Rehab. & Corr., 10th Dist. Franklin No.

06AP-396, 2007-Ohio-2652, ¶ 11. An appeal of an improper conversion

of a preliminary injunction motion into a final decision on the merits is

subject to abuse of discretion review. Ohio Serv. Group, Inc. v.

Integrated & Open Sys. L.L.C., 10th Dist. Franklin No. 06AP-433, 2006-

Ohio-6738, ¶ 10. By improperly advancing a preliminary injunction to a

hearing on the merits, the trial court commits a legal error. Turoff v.

Stefanac, 16 Ohio App.3d 227, 228-29, 475 N.E.2d 189 (8th Dist. 1984).

“When a court’s judgment is based on an erroneous interpretation of the

law, an abuse of discretion standard is not appropriate.” Med. Mut. of

Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, ¶ 13. To the

extent that there are questions concerning whether the court committed

errors in allowing testimony from an undisclosed expert witness who

provided no expert report and was presented by a party that claimed no

testimonial evidence was needed, the proper level of review is likewise

12
an abuse of discretion. Vaught v. Cleveland Clinic Found., 98 Ohio

St.3d 485, 2003-Ohio-2181, ¶ 13. An abuse of discretion “connotes

more than an error of law or judgment; it implies that the court’s attitude

is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983).

Finally, interpretation of a statute is a matter of law, subject to an

appellate de novo standard of review, whereas “the factual findings

underlying those determinations are reviewed for abuse of discretion.”

Reywal Co. v. Dublin, 10th Dist. Franklin No. 15AP-635, 2017-Ohio-

367, ¶ 9.

II. The Trial Court Erred in Finding that the Plaintiffs Had
Standing to Bring Their Claims. (Assignment of Error Number
1).

Central to the City’s arguments against the challenge to the bump

stock ordinance was that none of the Plaintiffs had standing to bring

their claims. Specifically, the City argued that the Plaintiffs failed to

allege in their complaint—and did not present any evidence to the

court—that either the individual Plaintiff or members of the Plaintiffs’

organizations either owned or wished to purchase a bump stock.

13
Because the Plaintiffs failed to allege or demonstrate any direct or

concrete injury from the City’s ordinance, they lacked standing to bring

their claims. Likewise, the City argued that neither the individual

Plaintiff, nor the organizational Plaintiffs, had the ability to bring a

taxpayer’s action against the City ordinance. The trial court, without

engaging in the standing analysis required by the Ohio Supreme Court,

summarily determined that both sets of Plaintiffs had standing to bring

their claims. (R. 82, pp.5-6). Because the trial court erred in finding

standing, this Court should reverse the court’s order permanently

enjoining the Columbus bump stock ordinance and order dismissal of

this claim.

A. The Ohio Constitution requires that any party that

brings a case in common pleas court must have standing
to sue.

The Ohio Constitution places limits on a common pleas court’s

ability to hear cases. Specifically, “‘[t]he Ohio Constitution expressly

requires standing for cases filed in common pleas courts.’” Preterm-

Cleveland, Inc. v. Kasich, 2018-Ohio-441, ¶ 20. The Ohio Supreme

14
Court recognized that “Article IV, Section 4(B) provides that the courts

of common pleas ‘shall have such original jurisdiction over all

justiciable matters.’ A matter is justiciable only if the complaining party

has standing to sue.” Id. Thus, “[i]n order to have standing to attack the

constitutionality of a legislative enactment, the private litigant must

generally show that he or she has suffered or is threatened with direct

and concrete injury in a manner or degree different from that suffered by

the public in general.” Id. at ¶ 21.

At its most basic level, standing is a “party’s right to make a legal

claim or seek judicial enforcement of a duty or right.” Bank of Am. v.

Stevens, 4th Dist. Hocking No. 16CA24, 2017-Ohio-9040, ¶ 24. “The

Supreme Court of the United States has stated standing ‘is not dispensed

in gross.’” Preterm-Cleveland, 2018-Ohio-441, ¶ 30 quoting Davis v.

F.E.C., 554 U.S. 724, 734 (2008). When parties attempt to bring

multiple claims, “‘a plaintiff must demonstrate standing for each claim

he seeks to press’ and ‘for each form of relief’ that is sought.’” Id.

(emphasis in original). The Plaintiffs in this case lacked standing to

pursue any of the claims they raised.

15
 B. None of the Plaintiffs had standing to bring a taxpayer
action against the City of Columbus.

In order to bring a taxpayer action, Ohio law mandates that certain

prerequisites be met. Those prerequisites are codified by R.C. 733.59.

Among them is a written demand by a taxpayer, made to the City’s law

director, to seek an “injunction to restrain the misapplication of funds of

the municipal corporation, the abuse of its corporate powers, or the

execution or performance of any contract made in behalf of the

municipal corporation.” R.C. 733.56, 733.59. As the trial court noted,

Witt satisfied these statutory requirements. (R. 82). But these code

sections only allow the taxpayer to seek a form of relief, an injunction.

They do not create an independent ground for standing.

The Ohio Supreme Court has recognized that “a taxpayer cannot

bring an action to prevent the carrying out of a public contract or

expenditure of public funds unless he has some special interest therein

by reason of which his own property rights are put in jeopardy.” State ex

rel. Masterson v. Ohio State Racing Comm’n, 162 Ohio St. 366, 368,

123 N.E.2d 1 (1954). Thus, a plaintiff’s interest in a taxpayer standing

16
matter must be based on more than just their taxpayer status. McBee v.

Toledo, 6th Dist. Lucas No. L-13-1101, 2014-Ohio-1555, ¶ 12. A

plaintiff must be individually impacted by the law in question. Id.

As an initial matter, Plaintiffs Ohioans for Concealed Carry

(“OFCC”) and Buckeye Firearms Foundation (“BFF”) are not taxpayers

and cannot bring a taxpayer case in their own right. “The Ohio Supreme

Court has interpreted the word ‘taxpayer’ under R.C. 733.59 as ‘any

person who, in a private capacity as a citizen, elector, freeholder or

taxpayer, volunteers to enforce a right of action on behalf of and for the

benefit of the public.’” Ohioans for Concealed Carry, Inc. v. Cleveland,

2017-Ohio-1560, 90 N.E.3d 80, ¶ 44, quoting State ex rel. Nimon v.

Springdale, 6 Ohio St.2d 1, 3, 215 N.E.2d 592 (1966). Both OFCC and

BFF are not-for-profit corporations. (R. 11, p. 2). Neither is an

individual taxpayer or citizen. Ohioans for Concealed Carry, 2017-

Ohio-1560, ¶ 44. Thus, OFCC and BFF cannot maintain a taxpayer

action under R.C. 733.59.

Despite fulfilling the statutory requirements of R.C 733.59, Gary

Witt also lacks standing to bring a taxpayer action case in common pleas

17
court. He alleged that he is “a member of OFCC and a resident and

taxpayer of the City of Columbus pursuant to R.C. § 733.59.” (R. 11, p.

2). He did not allege that he owned a bump stock or that he intended to

purchase one. Because Witt did not allege that his property rights were

in jeopardy, or that he would be impacted by the City ordinance in a

manner different than that of the general public, he too lacked standing

to bring a taxpayer action claim. 2

C. Plaintiffs also lacked standing to bring a declaratory

judgment action against the City of Columbus.

In their second cause of action, the Plaintiffs also attempted to

bring a declaratory judgment action against Columbus’ bump stock

ordinance. In order to bring a claim under R.C. 2721.03, a plaintiff must

plead “three prerequisites to declaratory relief: (1) a real controversy

between the parties, (2) justiciability, and (3) the necessity of speedy

relief to preserve the parties’ rights.” Hamilton v. Ohio Dep’t of Health,

2015-Ohio-4041, 42 N.E.3d 1261, ¶ 23 (10th Dist.). Furthermore, R.C.

2
The taxpayer statute cannot be read in such a manner as to allow any resident of a municipality
the right to file litigation to challenge any decision a municipality undertakes simply because the
taxpayer is a resident of the city or village. Such a reading would violate the case or controversy
requirements of Art. IV Sec 4(B) of the Ohio Constitution. Preterm-Cleveland, 2018-Ohio-441,
¶¶ 20, 22.

18
2721.03 is not an independent grant of standing; it is simply a legal basis

for obtaining a declaratory judgment by a person who already has

standing. Autumn Care Ctr., Inc. v. Todd, 2014-Ohio-5235, 22 N.E.3d

1105, ¶ 17 (5th Dist.) (citation omitted). In their complaint, Plaintiffs

failed to plead the requisite requirements for a declaratory judgment

action and failed to show that they possessed standing to challenge the

City ordinance.

For the same reasons that Gary Witt lacked standing to bring a

taxpayer action, he lacked standing to bring a declaratory judgment

action. “To show standing, a private litigant: ‘[M]ust generally show

that he or she has suffered or is threatened with direct and concrete

injury in a manner or degree different from that suffered by the public in

general, that the law in question has caused the injury, and that the relief

requested will redress the injury.’” State ex rel. Food & Water Watch v.

State, 10th Dist. Franklin No. 14AP-958, 2016-Ohio-3135, ¶¶ 59-60

quoting Bowers v. Ohio State Dental Bd., 142 Ohio App.3d 376, 380,

755 N.E.2d 948 (10th Dist. 2001), quoting Sheward, 86 Ohio St.3d at

469-70. Again, Witt failed to allege that he owned or planned to

19
purchase a bump stock. He failed to show any suffered or threatened

injury and lacked standing to bring his claim.

Likewise, the two organizational plaintiffs could not bring this

declaratory judgment action. These organizations did not claim to have

suffered any direct injury to themselves as a result of the ordinances they

sought to challenge. As a result, they suffered no direct injury and

cannot bring an action on their own.

Under certain circumstances, a trade organization “that has not

suffered any injury nonetheless has standing on behalf of its members if

(a) its members would otherwise have standing to sue in their own right;

(b) the interests the association seeks to protect are germane to the

association’s purpose; and (c) neither the claim asserted nor the relief

requested requires the participation of individual members in the

lawsuit.” Thompson v. Hayes, 10th Dist. Franklin No. 05AP-476, 2006-

Ohio-6000, ¶ 56 citing Hunt v. Washington State Apple Advertising

Comm., 432 U.S. 333, 343 (1977). “However, to have standing, the

association must establish that its members have suffered actual injury.”

Id. at ¶ 57 citing Ohio Contractors Ass’n v. Bicking, 71 Ohio St.3d 318,

20
320, 643 N.E.2d 1088 (1994). Therefore, “‘the association must allege

that its members, or any one of them, are suffering immediate or

threatened injury as a result of the challenged action of the sort that

would make out a justiciable case had the members themselves brought

suit.’” Id. quoting Warth v. Seldin, 422 U.S. 490, 511 (1975). Relying

on this standard, the Tenth District found that a trade association

representing bar owners had standing to challenge Ohio’s smoking ban

because the trade association had alleged that its members were

suffering an economic injury. Ohio Licensed Bev. Ass’n v. Ohio Dep’t of

Health, 10th Dist. Franklin No. 07AP-490, 2007-Ohio-7147, ¶ 21.

In this case, however, neither organization alleges that its members

have suffered any injury whatsoever or are in any way impacted by the

ordinances. Instead, OFCC alleged that it is “a not-for-profit Ohio

corporation formed in 1999 and composed of firearm owners across the

state of Ohio, including members who are taxpayers of the City of

Columbus pursuant to R.C. § 733.59.” (R. 11, p. 2). BFF stated that it is

“a not-for-profit Ohio corporation formed in 2013 and composed of

firearm owners across the state of Ohio, including members who are

21
taxpayers of the City of Columbus pursuant to R.C. § 733.59.” (R. 11, p.

2). They did not allege that any of their members own or intend to

purchase bump stocks who either reside in Columbus or would transport

that item through Columbus.

A challenge to the standing of gun rights organizations to bring

such an action is not a radical or new idea. Numerous courts across the

country have found that gun organizations and other plaintiffs lack

standing to challenge gun ordinances or statutes on behalf of their

members or themselves when there is no allegation of actual impact. 3

3
See, e.g., Firearms Import/Export Roundtable Trade Group v. Jones, 854 F. Supp. 2d 1 (D.D.C.
2012) (holding that plaintiffs lack standing to challenge the Gun Control Act as
unconstitutionally vague because they have not been subject of any enforcement action);
Voneida v. Pennsylvania, 2012 WL 6685521 (3rd Cir. 2012) (plaintiff lacked standing to
challenge background check laws because he could allege no more than a generalized grievance
shared by the public and suffered no required particularized injury-in-fact); Klayman v. President
of the United States, 689 F. App’x 921 (11th Cir. 2017) (holding that a public advocate lacked
Article III standing to challenge guidance from the ATF and SSA because he alleged that he
might engage in future unlawful conduct and never indicated any concrete plans to do so);
Robinson v. Sessions, 721 F. App’x 20 (2nd Cir. 2018) (holding that plaintiffs do not have
standing to challenge DOJ actions pursuant to the GCA and Brady Act because they failed to
show a direct injury from the conduct since they were not unable to buy a gun, were not delayed
in buying a gun, and did not have their information compromised due to background checks);
Clark v. City of Shawnee, Kansas, 184 F. Supp. 3d 1020 (D. Kan. 2016) (holding that plaintiff
did not have standing to challenge a firearm statute because he faced no credible threat of
prosecution); Colorado Outfitters Assoc. v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016)
(holding that a youth outdoor activities organization lacked Article III standing to challenge
statute expanding mandatory background checks, that an advocacy organization lacked
associational standing, and that sheriffs lacked Article III standing); Montgomery v. Cuomo, 291
F. Supp. 3d 303 (W.D.N.Y. 2018) (holding that gun owners whose firearm licenses were

22
Here, as in these many other cases, the Plaintiff organizations failed to

allege that either they or their members suffered or were threatened with

an actual injury.

Because the Plaintiffs failed to prove standing to raise their claims,

the trial court erred in enjoining the City’s bump stock ordinance either

preliminarily or permanently. The decision on the claim should be

reversed and Plaintiffs’ challenge to the bump stock ordinance should be

dismissed.

III. The Trial Court Erred in Granting a Permanent Injunction

Without Providing Notice that it Would Advance the Matter to
a Trial on the Merits. (Assignments of Error Number 2 and 3).

As noted above, the City was very clear it would not consent to a

trial on the merits at the preliminary injunction hearing in this case. The

trial court issued an order in which it stated that “[t]his matter shall be

heard on Plaintiff’s (sic) Motion for Preliminary Injunction on the 9th

day of July, 2018.” (R. 37) (emphasis added).

suspended or revoked on basis other than a particular mental hygiene law lacked standing to
challenge the law).

23
 Despite the objections by the City and the recognition by the

Plaintiffs that the City objected, the trial court issued a final judgment

permanently enjoining the City’s prohibition against bump stocks. Such

a ruling is contrary to law and fundamental requirements of notice and

fair process. Accordingly, even if this Court does not reverse on

standing, the Court should overturn the trial court’s decision granting a

permanent injunction and remand for full and further proceedings.

This Court has been clear that “it is generally improper to dispose

of a case on the merits following a hearing for a preliminary injunction

without consolidating that hearing with a trial on the merits or otherwise

giving notice to counsel that the merits would be considered.”

Seasonings Etcetera, Inc. v. Nay, 10th Dist. Franklin No. 92AP-1056,

1993 Ohio App. LEXIS 1182, *10 (Feb. 23, 1993) citing George P.

Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 5 Ohio App.3d 71, 72,

449 N.E.2d 503 (6th Dist. 1982); see also Chandlers Lane Condo.

Owners Ass’n v. Gillespie, 8th Dist. Cuyahoga No. 105097, 2017-Ohio-

2862, ¶ 8. (citation omitted). Ohio’s Rules of Civil Procedure, “Civ. R.

65(B)(2) and Fed. R. Civ. P. 65(a)(2) require that a court order the

24
consolidation of a hearing on the application for a preliminary injunction

with a trial on the merits, thus providing the parties with notice that the

case is, in fact, being heard on the merits.” Turoff, 16 Ohio App.3d at

228. (emphasis in original). Furthermore, it is inappropriate for a court

to decide to consolidate on the merits after a preliminary injunction

hearing. “Before consolidation, the parties should normally receive

clear and unambiguous notice of the court’s intent to consolidate the trial

and the hearing either before the hearing commences or at a time which

will still afford the parties a full opportunity to present their respective

cases.” Bd. of Educ. Ironton City Schools v. Ohio Dep’t of Educ., 4th

Dist. Lawrence No. CA92-39, 1993 Ohio App. LEXIS 3476, *8 (June

29, 1993) citing Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

In Bexley v. Duckworth, 10th Dist. Franklin No. 99AP-414, 2000

Ohio App. LEXIS 817 (March 7, 2000), this Court vacated a trial court’s

decision to issue a permanent injunction after that court conducted a

hearing on a motion for preliminary injunction without giving notice to

the parties that it would treat the hearing as a trial on the merits. This

Court noted that (1) “the trial court’s judgment on the merits was issued

25
approximately three weeks after the complaint was filed,” (2) at the time

of the hearing, the parties presented evidence “under the belief that the

proceeding was not a trial on the merits,” and (3) “the trial court

provided no notice, in advance of its order granting a preliminary

injunction, that it would rule on the merits.” Id. at *18. This Court

stated that “while a trial court may order the consolidation of a hearing

for preliminary injunction with a trial on the merits, the court must

furnish the parties notice that the case is, in fact, being heard on the

merits.” Id. quoting Turoff, 16 Ohio App.3d at 228. The Court also held

that plaintiffs’ post-hearing motion asking the court to convert the

preliminary injunction hearing to a trial on the merits did not satisfy the

court’s obligation to provide “timely, clear and unambiguous notice” to

the parties that the court was converting the hearing to a trial on the

merits. Id. at *19 quoting Woe v. Cuomo, 801 F.2d 627, 629 (2nd Cir.

1986).

Here, the trial court provided no advance notice that it was going

to rule on the merits following the preliminary injunction hearing. The

court’s written hearing notice specified that the hearing would address

26
the motion for a preliminary injunction. (R. 39). Furthermore, the City

repeatedly objected to combining the preliminary injunction with a trial

on the merits. It was not until the end of the hearing, right before

leaving the bench, that the court suggested that it was contemplating

ruling on the merits. (Tr. 105-106). The parties only learned that the

court, in fact, would be issuing a permanent injunction instead of a

preliminary injunction when the court actually filed its ruling. (R. 82).

This unreasonable action by the trial court constituted an abuse of

discretion that prejudiced the City. First, a party “is not required to

provide his case in full at a preliminary-injunction hearing” and

preliminary injunctions are “customarily granted on the basis of

procedures that are less formal and evidence that is less complete than in

a trial on the merits.” Bexley at *4, quoting Camenisch, 451 U.S. at 395.

In addition, facts presented at a preliminary injunction hearing are likely

to be different than those focused upon in a trial on the merits, and thus

cannot be dispositive in resolving material questions of fact. See Ironton

City Schools, 1993 Ohio App. LEXIS 3476 at *9. Accordingly, parties

are prejudiced by the lack of opportunity to develop and present their

27
case when they have insufficient notice that a hearing will constitute a

trial on the merits. Bexley, at *4, 8.

Here, the City made specific strategic decisions about the manner

in which the preliminary injunction hearing was conducted. The City

chose to focus on the Plaintiffs’ lack of standing and the harm that third

parties would suffer if the court were to enter a preliminary injunction.

The City elected not to make a full evidentiary showing to establish that

bump stocks are “accessories” and not “components,” not knowing that

the court would be rendering a final decision on that issue. Had the City

been informed prior to the hearing that the court intended to issue a final

ruling following the hearing, the City would have presented a wide

range of factual evidence to the court—including their own expert. This

would include evidence concerning how a bump stock works, how it is

commonly described and referred to in the firearms industry, and

evidence to refute the claims of the Plaintiffs’ expert. The court’s final

judgment attests to the prejudice suffered by the City as it relies

exclusively on the in-court testimony of Steley in determining that a

bump stock is a firearm component, and not a firearm accessory. (R. 82,

28
p. 9). Without notice, however, the City was deprived of the opportunity

to fully develop the record and present evidence on this critical issue.

Second, the trial court failed to afford the City’s ordinance the

presumption of constitutionality that it was due. The court was obliged

to hold the Plaintiffs to their burden of proving the existence of a Home

Rule conflict beyond a reasonable doubt, in order to overcome this

presumption. By issuing a permanent injunction on the basis of a

preliminary injunction hearing, not only did the court deny the City the

opportunity to present fact evidence in support of its assertions that the

City ordinance was not in conflict with state law, but the court also

inexplicably relieved the Plaintiffs of their burden to establish the same.

In fact, the trial court did not even so much as mention in its ruling that

the ordinance was to be presumed constitutional and compounded that

error by failing to take that presumption into account in analyzing the

Plaintiffs’ claims. Had there been a trial on the merits, the City would

have had the opportunity to advance the argument that the court should

hold the Plaintiffs to their burden.

29
 The Plaintiffs’ motion only asked for a hearing on its application

for a preliminary injunction. The City opposed combining the

preliminary injunction with a trial on the merits both orally and in

writing. Then, the trial court, at the end of the hearing, suggested it

might decide the case on the merits. This the court did after only

hearing evidence from a surprise witness from one side on the primary

issue of whether bump stocks are properly characterized as firearms

accessories or components. This action by the court violates the

holdings of this and other appellate courts, and since the City suffered

prejudice as a result, this Court should find the trial court to have abused

its discretion, reverse the decision enjoining the City’s bump stock

ordinance, and remand the case for further proceedings.

IV. The Trial Court Erred in Allowing the Testimony of an Expert

Witness Despite the Lack of Notice and Lack of Expert Report.
(Assignment of Error Number 4).

The Plaintiffs asserted that the only issues before the Court relative

to their motion for a preliminary injunction were legal issues pertaining

to the preliminary injunction. (R. 68). Despite their protests that no

evidence was needed in advance of the preliminary injunction hearing,

30
the Plaintiffs produced a witness to testify about bump stocks and moved

to have him qualified as an expert. This “expert” never produced any

expert report. The Plaintiffs never gave any notice that they were going

to call a witness, let alone an expert witness, prior to the hearing. The

first that counsel for the City heard about the witness was at the hearing

itself.

The Franklin County Common Pleas Court local rules mandate

that before an expert witness testifies, the expert must provide a written

report. That report must consist of the expert’s qualifications, a

summary of the expert’s opinions, and the basis or theory for those

opinions. Loc.R. 43.03(c). If an expert witness does not provide a

written expert report, the local court rules mandate that such a witness

“may not be called to testify at trial, unless the Trial Judge orders

otherwise for good cause and subject to such conditions as justice

requires.” Loc.R. 43.04.

In the proceedings below there was no notice whatsoever that an

expert witness would testify. No documents were provided in advance

to the City. No expert report was provided to the City. Instead, the

31
Plaintiffs claimed that they intended on simply arguing legal points. In

this case, the prejudice to the City might not have been severe had the

trial court simply ruled on the preliminary injunction motion.

However, when the trial court instead issued a ruling granting a

permanent injunction in which he relied solely upon that expert witness’

testimony in concluding that bump stocks are not accessories, the court’s

prior ruling prejudiced the City. The trial court’s refusal to enforce the

local court rule constituted an abuse of discretion and the decision

granting the permanent injunction on this basis must be overturned.

V. The City Has Authority to Promulgate C.C.C. 2323.171

Because it Regulates Firearm Accessories, Not Components,
and Therefore Does Not Conflict with R.C. 9.68. (Assignment
of Error Number 5).

The City respectfully submits that if this Court does not reverse

and dismiss on lack of standing, this matter should properly be referred

back to the trial court for further development of the record and a trial on

the merits. In the alternative, should this Court reach the merits, the City

submits that the trial court erred by finding the City’s bump stock

32
ordinance to be preempted by and thus in violation of R.C. 9.68.4 The

City is not prevented from regulating bump stocks by R.C. 9.68—the

state firearms preemption statute—because R.C. 9.68 does not extend to

firearms accessories and bump stocks are firearms accessories.

A. R.C. 9.68 does not preempt local ordinances prohibiting

firearms accessories as they are not regulated by R.C. 9.68.

Section 3, Article XVIII—the Home Rule Amendment of the Ohio

Constitution—grants municipalities the “authority to exercise all powers

of local self-government and to adopt and enforce within their limits

such local police, sanitary, and other similar regulations, as are not in

conflict with general laws.” The Ohio Supreme Court has stated that a

municipal ordinance must yield to a state statute under the Home Rule

Amendment when “(1) the ordinance is an exercise of the police power,

rather than of local self-government, (2) the statute is a general law, and

(3) the ordinance is in conflict with the statute.” Mendenhall v. Akron,

117 Ohio St.3d 33, 2008-Ohio-270, ¶ 17 (emphasis added).

4
The City fully incorporates herein the arguments made in the second assignment of error
regarding the trial court’s decision to enter a judgment on the merits without allowing the parties
to develop a record as to the facts surrounding what constitutes a firearm accessory.

33
 A conflict exists if “the ordinance permits or licenses that which

the statute forbids and prohibits, and vice versa.” Struthers v. Sokol, 108

Ohio St. 263 (1923), paragraph two of the syllabus. To evaluate whether

a conflict exists between R.C. 9.68 and C.C.C. 2323.171, it is necessary

to begin with the text of the statute. R.C. 9.68 speaks of the need to

provide uniform laws in regulating firearms and “their components.” It

also authorizes a person to possess a “firearm, part of a firearm, its

components, and its ammunition” except as specifically provided by

state or federal law. Id. The word “accessories,” however, is not found

in R.C. 9.68; they are simply not covered by the statute.

The judicially recognized rule of statutory construction “maxim

expressio unius est exclusion alterius,” or the express inclusion of one

thing implies the exclusion of the other, supports this interpretation. See,

e.g., State ex rel. Presbyterian Ret. Servs. v. Indus. Comm’n of Ohio, 151

Ohio St.3d 92, 2017-Ohio-7577, ¶ 28. The General Assembly chose to

include the words “component” and “part” in R.C. 9.68 but specifically

chose not to include the word “accessories.” This distinguishes Ohio’s

firearms preemption law from the firearms preemption laws of many

34
other states, where the legislatures did include the word “accessories,”

recognizing that “accessories” are different from “components.”5

“If . . . the General Assembly finds that its original intention was not

accomplished in the words that it chose, then it, and it alone, has the

constitutional authority to amend the statute to conform to its intention.”

State ex rel. Clay v. Cuyahoga Cty. Med. Exam’rs Office, 152 Ohio

St.3d 163, 2017-Ohio-8714, ¶ 40.

Since the city ordinance at issue purports to only regulate firearms

accessories, and since the general law pertaining to firearms specifically

does not encompass the regulation of firearms accessories, the City’s

ordinance is lawful so long as illegal rate-of-fire acceleration devices

such as bump stocks are properly understood to be firearms accessories

and not firearms components.

5
Code of Ala. § 13A-11-61.3(c) (preempting “the entire field of regulation in this state touching
in any way upon firearms, ammunition, and firearm accessories”); Ariz. Rev. Stat. § 13-3108(A)
(prohibiting a political subdivision from regulating “firearms or ammunition or any firearm or
ammunition components or related accessories”); Ind. Code § 35-47-11.1-2 (providing that “a
political subdivision may not regulate: [ ] firearms, ammunition, and firearm accessories”); Ky.
Rev. Stat. § 65.870(1) (announcing that no locality “may occupy any part of the field of
regulation of . . . firearms, ammunition, components of firearms, components of ammunition,
firearms accessories, or combination thereof“); Nev. Rev. Stat. § 244.364(1)(b) (providing that
regulation of “firearms, firearm accessories and ammunition . . . is within the exclusive domain
of the Legislature”); Wyo. Stat. § 6-8-401(c) (except as otherwise authorized, no locality may
regulate “firearms, weapons, accessories, components or ammunition”).

35
 B. Since illegal rate-of-fire acceleration devices, such as bump
stocks, are considered to be accessories within the firearms
industry, the trial court erred, as a matter of law, in finding
them to be components.

R.C. 1.42 provides that “[w]ords and phrases shall be read in

context and construed according to the rules of grammar and common

usage. Words and phrases that have acquired a technical or particular

meaning, whether by legislative definition or otherwise, shall be

construed accordingly.” The Ohio Supreme Court recognizes that when

“a statute is unambiguous, we apply it as written.” Portage Cty. Bd. of

Comm’rs, 2006-Ohio-954, ¶ 52.

When interpreting the common usage of a word or phrase used in

language purporting to pertain to a particular field or industry, the

legislation “requires a technical interpretation in the light of the statutory

purpose.” State v. Rentex, Inc., 51 Ohio App. 2d 57, 59, 365 N.E.2d

1274 (8th Dist. 1977). Further, “it is established law in Ohio that [in

construing statutes], where a word has a technical definition differing

from its dictionary definition, it shall be construed according to the

former.” Hoffman v. State Med. Bd., 113 Ohio St.3d 376, 2007-Ohio-

36
2201, ¶ 26 quoting Youngstown Sheet & Tube Co. v. Lindley, 56 Ohio

St.2d 303, 309, 383 N.E.2d 903 (1978).

Within the firearms industry, there is substantial and persuasive

evidence classifying and describing bump stocks as accessories. Slide

Fire is a company that manufactures bump stocks. In a patent

infringement lawsuit, Slide Fire described itself as a marketer and seller

of firearm “accessories,” including bump stocks. Complaint at 2, 3, Slide

Fire Solutions, LLP v. Bump Fire Systems, N.D. Tex. No. 3:14-CV-

3358, 2016 U.S. Dist. LEXIS 83005 (April 14, 2016). 6 This is similar

to how William Akins classified his company in litigation with the ATF

before the United States Court of Appeals for the Eleventh Circuit. In

his appellate brief, Akins described the company manufacturing the

bump stock as an “accessory manufacturer.” Brief of Plaintiff-Appellant,

Akins v. United States, 312 F. App’x 197, 198 (11th Cir. 2009) (per

curiam) (emphasis added). Significantly, he further argued that the

6
Slide Fire, facing a lawsuit from victims of the Las Vegas massacre, only recently reversed its
position and advanced the argument that its bump stock products are firearms components and,
thus, the company should be shielded from liability for the mass shooting pursuant to the
Protection of Lawful Commerce in Arms Act. Prescott v. Slide Fire Solutions, Nev. No. 2-18-
CV-00296, 2018 U.S. Dist. LEXIS 157764, (September 17, 2018).

37
government should have no interest in regulating the Akins Accelerator,

which is the original bump stock, because “the government has no

interest in regulating devices that are firearm accessories (and therefore

not firearms at all).” Id. (emphasis added).

Not only have manufacturers asserted that bump stocks are

accessories in the course of litigation, they have repeatedly made such

assertions in the patent applications themselves—at a time when they

had no litigation or regulatory motivation to use any particular

description. Slide Fire Solutions, a manufacturer of bump stocks, uses

the term “accessory” to describe their bump stocks. U.S. Patent Appl.

No. 2012/0117843 A1 (filed May 17, 2012) (“The present invention

relates generally to firearms, and more particularly toward a sliding

interface for a sliding stock accessory used with semi-automatic firearms

to enable sequential firing of ammunition rounds utilizing human muscle

power to discharge each round while controlling the aim of the

firearm.”) (emphasis added); U.S. Patent Appl. No. 2012/0240441 A1

(filed Sep. 27, 2012) (“The present invention relates generally to

firearms, and more particularly toward a manually reciprocated bump-

38
stock accessory for semi-automatic firearms.”) (emphasis added); U.S.

Patent Appl. No. 2012/0291328 A1 (filed Nov. 22, 2012) (“The present

invention relates generally to firearms, and more particularly toward a

manually reciprocated bump-stock accessory for semi-automatic

firearms.”) (emphasis added); U.S. Patent Appl. No. 2012/0311907 A1

(filed Dec. 13, 2012) (“The present invention relates generally to

firearms, and more particularly toward a manually reciprocated gun

stock accessory for enabling rapid fire of a semi-automatic firearm.”)

(emphasis added). Likewise, Slide Fire’s accepted patent also describes

their invention as a “bump stock accessory.” U.S. Patent No. 8,356,542

B2 (filed Jan. 22, 2013) (emphasis added).

Federal excise tax regulations also support the classification of

bump stocks as an accessory and not a component or part. Taxable

“component parts” under these regulations include items that “would

ordinarily be attached to a firearm during use and, in the ordinary course

of trade, are packaged with the firearm at the time of sale by the

manufacturer or importer.” 27 C.F.R. 53.61(b)(2) (emphasis added).

Further, the regulations define nontaxable “accessories” as “optional

39
items purchased by the customer at the time of retail sale.” 27 C.F.R.

53.61(b)(5)(iv). Bump stocks are not ordinarily packaged with a firearm

by the manufacturer, they are optional retail items.

Even in the regulation of the firearms industry, where there has

been some debate over whether or not these devices fall within existing

ATF regulations, it is now recognized that illegal rate-of fire

acceleration devices are properly understood to be accessories. The

Bureau of Alcohol, Tobacco and Firearms (“ATF”) is the federal agency

charged with regulating the sale, possession and transportation of

firearms in interstate commerce. 7 The ATF in its recent proposed rule

on bump stocks stated that bump stocks are devices intended to be used

to convert a semiautomatic firearm to increase the firearm’s firing rate to

mimic automatic fire. 83 C.F.R. 13442 (2018). In describing the

function of the device, the ATF made clear that the bump stock increases

the firearm’s rate of fire by altering the way in which the original parts

work:

7
Bureau of Alcohol, Tobacco and Firearms, https://www.atf.gov/about/what-we-do (accessed
September 28, 2018).

40
 The bump-stock-type device functions as a self-acting and
self-regulating force that channels the firearm's recoil energy
in a continuous back-and-forth cycle that allows the shooter
to attain continuous firing after a single pull of the trigger so
long as the trigger finger remains stationary on the device's
extension ledge (as designed). No further physical
manipulation of the trigger by the shooter is required.

83 C.F.R. 13443. (emphasis added.) Furthermore, throughout its

discussion of the proposed rule change, the ATF repeatedly used the

term “accessories” in describing the type of device that a bump stock is.

For example, in explaining the agency’s methodology in assessing the

potential impact of the regulation, the ATF stated:

Because there are no records of individuals who have

purchased firearm accessories, ATF does not have an
estimated number of individuals who would be affected by
this proposed rule. Although ATF lacks data on the number
of individuals who have purchased bump-stock-type devices,
ATF has some information from one manufacturer and four
retailers on the volume of sales of such devices.

83 C.F.R. 13449. (emphasis added). In other words, the federal agency

charged with regulating the firearms industry acknowledges that bump

stock devices are considered accessories within the industry.

41
 A bump stock is not a “part of a firearm” or a “component” of one.

Rather, in the technical understanding of the firearm industry, bump

stocks are accessories. Since illegal rate-of-fire acceleration devices

such as bump stocks are considered to be accessories and not

components within the firearms industry, these terms must be interpreted

as such in reading R.C. 9.68. The trial court erred as a matter of law in

deciding otherwise.

C. In concluding that bump stocks are components rather than

accessories, the trial court abused its discretion by failing to
engage in appropriate fact-finding and erred as a matter of
law in interpreting the terms used in R.C. 9.68 and the City
Ordinance.

The determination of whether illegal rate-of-fire acceleration

accessories as defined in the Columbus City Code are components

within the meaning of R.C. 9.68 is a mixed question of law and fact.

And yet, the Court’s opinion asserted that “[t]here are no factual issues

in this matter. The question before the Court is purely a legal one.” (Rec.

82, p. 4). While this legal error is alone sufficient for reversal and

remand, the balance of the trial court’s ruling belies that assertion: the

trial court made factual findings but it did so without reference to the

42
industry standards and substantial and persuasive evidence of industry

usage and it did so, seemingly, without being aware that the court was

making them. The City submits that in concluding that bump stocks are

components, the trial court abused its discretion and erred as a matter of

law in the following ways:

First, the trial court’s failure to interpret the terms used in the

statute and ordinance in light of how they are commonly used and

understood within the firearms industry was error as a matter of law,

since Ohio’s rules of statutory construction required the court to

interpret the terms consistent with the way they are used within the

firearms industry. In many ways, the trial court’s error in interpretation

here is similar to that recently committed by the U.S. District Court for

the District of Nevada in Prescott. Following Ninth Circuit Court of

Appeals precedent, the District Court relied almost exclusively on

dictionary definitions rather than industry usage in construing the terms

“components” and “accessories” and concluded, on that basis, that bump

stocks are components. Similarly, the trial court in this case made no

reference to multiple documented examples of industry usage in

43
construing the terms, relying instead and exclusively upon the testimony

provided by Steley and the court’s own understanding of how firearms

work. Furthermore, Prescott is inapposite here because Ohio’s rules of

statutory construction mandate that a court give meaning to technical

terms consistent with how those terms are commonly used in their

particular industry. R.C. 1.42.

Second, the trial court abused its discretion in concluding that a

bump stock is a component. That finding is not supported by the record.

Rather the court’s decision evinces a misunderstanding of the import of

Steley’s testimony that the existing stock of a rifle must be removed and

the bump-stock attached in its place. This, the court concluded, makes

the bump stock an “integral part of the safe operation of a firearm” and,

thus, a component. (R. 82, p. 9). However, in his testimony, Steley

made it clear that a “trigger crank” form of illegal rate-of-fire

acceleration firearm accessory is not a replacement for an existing

trigger but “is added to the trigger guard.” (Tr. p. 28). Likewise,

Steley’s testimony demonstrates that a bump stock is not simply a

replacement for the existing stock, it is a device that alters the way in

44
which the trigger is engaged and fires—something regular stocks do not

do:

The bump-fire stock takes a lot of finesse, if you will. It

involves pushing the stock into your shoulder, but I call it
almost massaging the front end. You have to slide the front
end as your finger is on the trigger. As far as accuracy goes,
it’s out the window. It just – it’s not designed to be accurate.
It’s designed to shoot fast.

(Tr. p. 44). The trial court likewise failed to consider the substantial

evidence showing that firearms industry participants, including the

inventors and manufacturers of bump stocks, regularly refer to them as

“accessories.” In addition to the case law cited above demonstrating

industry usage, the trial court had before it the actual patent applications

referenced above showing that before current litigation arose, Slide Fire

Solutions, a manufacturer of bump stocks, repeatedly used the term

“accessory” to describe their bump stocks.

Third, the trial court abused its discretion in relying for its ruling

on the proposition that the City’s argument “completely revolves around

the fact that a bump-stock can be installed by the end user.” (R. 82, p. 9).

This is simply inaccurate. While the City did referenced the fact that

45
devices such a bump stocks are after-market items, added by the

consumer (and, thus, not themselves integral to the operation of the

firearm), the City went further both in its written responses as well as at

oral argument. The City thus explained that it is how these after-market

items function to fundamentally alter the way in which the rifles fire that

makes them accessories. Contrary to the conclusions of the trial court,

at no time did the City argue that such devices are illegal solely because

of who installs them or when.

Fourth, the trial court not only misinterpreted the terms used in the

legislation at issue, it also erred as a matter of law in simply misreading

the language of the City’s ordinance. The court opined that the

provision of C.C.C. 2323.171 that states that an illegal rate of fire

acceleration firearm accessory includes “any part, combination of parts,

component, device, attachment or accessory, that is designed or

functions to accelerate the rate of fire” must mean that the City is

thereby “turning parts and components into accessories.” (R. 82, p. 11).

The court misread the language—the ordinance is not referencing

firearm parts or components in its definition—it is referring to parts or

46
components of illegal rate-of-fire acceleration firearm accessories as

evidenced by the descriptive language that follows the quoted provision:

“[t]hese include, but are not limited to, firearm accessories described or

marketed as bump stocks, bump-fire stocks, slide fires and accelerators.”

C.C.C. 2323.171(C)(1).

Based on a review of all the evidence offered and a correct reading

of both the statute and the ordinance, should this Court reach a decision

on the merits, the City respectfully submits that the legally correct

answer is that a bump stock is not a component or part covered by R.C.

9.68. Since a bump stock is an accessory, the City can regulate a bump

stock without conflicting with a general law of the State and the trial

court’s decision to the contrary must be overruled.

47
 CONCLUSION

For the foregoing reasons, the City respectfully requests that this

Court vacate the trial court’s decision on the bump stock ordinance and

dismiss the challenge to that ordinance for lack of standing. In the

alternative, the City respectfully requests this Court issue an order

vacating the trial court’s decision permanently enjoining the City’s

bump stock ordinance and remand the case for further proceedings.

Finally, if this Court determines that the Plaintiffs had standing and that

the myriad of procedural errors do not warrant remanding the case for

further proceedings, then the City respectfully submits that this Court

should find that bump stocks are accessories, the City is permitted to

regulate them consistent with R.C. 9.68, and accordingly the decision of

the trial court to the contrary should be reversed.

48
Respectfully submitted,

CITY OF COLUMBUS,
DEPARTMENT OF LAW
ZACH KLEIN, CITY ATTORNEY

/s/ Lara N. Baker-Morrish

Lara N. Baker-Morrish (0063721)
Charles Campisano (0095201)
Richard N Coglianese (0066830)
City Solicitor General
77 North Front St., 4th Fl.
Columbus, Ohio 43215
(614) 645-7388 phone; (614) 645-6949 fax
lnbaker-morrish@columbus.gov

Eric Tirschwell (pro hac vice)

Everytown for Gun Safety
132 East 43rd Street, Suite 657
New York, NY 10017
(646) 324-8222
etirschwell@everytown.org

49
 CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing has been served by e-mail
on the following on this 1st day of October 2018.

DAVID S. KESSLER (0041982)

STEPHEN P. POSTLAKIS (0063240)
Haynes Kessler Myers & Postalakis, Inc.
300 W. Wilson Bridge Road, Suite 100
Worthington, OH 43085
david@ohiolawyersgroup.com
steve@ohiolawyersgroup.com

JAMES P. MALONEY (0061016)

8917 Eagle Ridge Court
Westchester, OH 45069
smaloneyesq@gmail.com

DEREK A. DEBROSSE (0084183)

Barney DeBrosse, LLC
503 South Front Street, Ste. 240B
Columbus, OH 43215
derek@barneydebrosse.com

RONALD LEMIEUX (0093536)

P.O. Box 19183
Cleveland, OH 44119
rlemieux@ronaldlemieuxlaw.com

Counsel for Cross-Appellants Ohioans for Concealed Carry, Inc.,

Buckeye Firearms Foundation, Inc., and Gary Witt

/s/ Lara N. Baker-Morrish

Lara N. Baker-Morrish (0063721)