State v. Brown

[Cite as State v. Brown, 

.]



                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO


 STATE OF OHIO,                          :     APPEAL NO.     C-240230
                                               TRIAL NO.      B-2306014
       Plaintiff-Appellant,              :

    vs.                                  :
                                                    OPINION
 KENDALL BROWN,                          :

       Defendant-Appellee.               :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 3, 2025



Melissa A. Powers, Hamilton County Prosecuting Attorney, and Norbert Wessels,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Connor Reilly, for Defendant-Appellee.
[Cite as State v. Brown, 

.]


BERGERON, Judge.

        {¶1}     This case concerns the State’s power to disarm one of its citizens based

solely on the fact that he is under indictment. After defendant-appellee Kendall Brown

was indicted for a robbery but released on bail, officers discovered a gun in his home.

The State then charged Mr. Brown anew, this time with possessing a firearm while

under a disability—specifically, possessing a weapon while under indictment for a

felony offense of violence. Mr. Brown moved to dismiss the new indictment, and

shortly thereafter, the court dismissed his robbery indictment. He thus maintained,

and the trial court agreed, that the Second Amendment to the United States

Constitution bars a prosecution like his. The State now appeals, asking us to resolve

whether the Constitution prohibits Ohio from disarming an individual based solely on

his indictment for a felony offense like robbery. On the facts and history presented in

this case, we hold it does. We therefore affirm the trial court’s judgment dismissing

Mr. Brown’s indictment.

                                             I.

        {¶2}     The factual record in this case is sparse but important to understanding

the as-applied constitutional challenge at hand. In 2023, a grand jury indicted Mr.

Brown on one count of robbery pursuant to R.C. 2911.01(A)(2). The court released Mr.

Brown on bond with an electronic monitoring unit (“EMU”) ankle monitor, but it did

not place any restrictions on his ability to possess a firearm. During a home visit by

the EMU team, they located a loaded firearm in his apartment. This discovery

spawned a new indictment pursuant to R.C. 2923.13(A)(2) for having a weapon under

a disability.

        {¶3}     The State’s robbery case against Mr. Brown eventually collapsed, which

led to the dismissal of those charges against him. But since the weapons under a
                OHIO FIRST DISTRICT COURT OF APPEALS


disability case was still at play, Mr. Brown moved to dismiss his indictment, raising an

as-applied challenge to the statute, relying heavily on the United States Supreme

Court’s recent decision in N.Y. State Rifle & Pistol Assn. v. Bruen, 

 (2022).

The trial court, surveying the record at hand, determined that the State had not met

its burden under Bruen to present a historical record to support the infringement upon

Mr. Brown’s presumptively constitutional conduct.

       {¶4}   The State now appeals, presenting a single assignment of error.

                                          II.

       {¶5}   In its sole assignment of error, the State challenges the trial court’s

finding R.C. 2923.13(A)(2) unconstitutional as applied and dismissing the charge

against Mr. Brown. Because the trial court dismissed the indictment for purely legal

reasons, we review its decision de novo. See State v. Thacker, 

(1st Dist.), citing State v. Troisi, 

; State v. King,

, ¶ 14 (8th Dist.).        Because the trial court held the statute

unconstitutional not on its face, but only as applied to Mr. Brown in this case, our

analysis must take into consideration “the particular context in which” he acted.

(Cleaned up.) Wymsylo v. Bartec, Inc., 

.

                                          A.

       {¶6}   Since 2008, the United States Supreme Court has held that the Second

Amendment preserves an individual right to keep and bear arms. Dist. of Columbia

v. Heller, 

 (2008); U.S. Const., amend. II.           The Fourteenth

Amendment renders that guarantee enforceable against state governments no less

than the federal. McDonald v. City of Chicago, 

 (2010).

       {¶7}   But the trigger for this case was an even more recent methodological

shift. In 2022, the Supreme Court held that Second Amendment challenges should be



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                  OHIO FIRST DISTRICT COURT OF APPEALS


evaluated under what came to be known as the “text, history, and tradition” test. See

Bruen, 

. So, when a litigant asserts that a statute infringes upon his right to

bear arms, courts must now consider (1) whether “the Second Amendment’s plain text

covers an individual’s conduct,” and, if so, (2) whether that “regulation is consistent

with this Nation’s historical tradition of firearm regulation.” 

. Once a court

answers the first question in the affirmative, the statute is presumed unconstitutional,

and the State must shoulder the burden of mustering analogous historical laws to

answer the second. 

.

        {¶8}    Mr. Brown challenges the application of R.C. 2923.13(A)(2).                   We

recently had occasion to consider a Second Amendment challenge to a different

provision of the same statute in Thacker, 

 (1st Dist.). In that case we

noted that disarming statutes generally fall into one of two camps (1) “universal” bans

and (2) “categorical” bans. Id. at ¶ 16-17. The former camp includes statutes that

operate on every citizen’s right to bear arms equally—as the laws in Heller, McDonald,

and Bruen did. See 

 (striking down blanket prohibition on owning

handguns in the home); 

 (same); United States v. Rahimi, 

 (2024) (describing “the regulation struck down in Bruen” as “broadly

restrict[ing] arms use by the public generally”).1

        {¶9}    The latter, “categorical” camp includes more targeted laws that disarm

only certain portions of the public. The statute at hand, R.C. 2923.13, helps illustrate

the point. Subsection (A) describes five categories of persons who, “[u]nless relieved

from disability under operation of law or legal process,” may not “knowingly acquire,



1 The dissent suggests that we remand in light of United States v. Rahimi, 

 (2024) but

Rahimi was handed down in the middle of briefing this appeal and the State thoroughly addressed
it in its reply brief. Neither party requested a remand for further record development in light of
Rahimi, and we sit in as good a spot as the trial court to evaluate its impact.


                                                4
                 OHIO FIRST DISTRICT COURT OF APPEALS


have, carry, or use any firearm.” The categories include “fugitive[s] from justice,”

individuals suffering “from drug dependency” or “chronic alcoholism,” and those who

have “been committed to a mental institution,” among others. R.C. 2923.13(A)(1), (4),

and (5).   At issue here is the provision disarming the class of persons “under

indictment for . . . any felony offense of violence,” R.C. 2923.13(A)(2), a phrase defined

to include any “violation of section . . . 2911.02” of the Revised Code. See R.C.

2901.01(A)(9)(a).

       {¶10} In Thacker, we provided a framework for assessing the constitutionality

of such a categorical disarmament. After an extensive discussion of recent Second

Amendment cases and historical materials, we noted that the State could justify a

categorical disarmament either (1) by pointing to a historical pattern of relevantly and

specifically similar disarming statutes, 

, or (2) by showing that it falls

within our nation’s “longstanding practice” of allowing legislatures to “disarm[] those

they determine to be dangerous,” id. at ¶ 54.

       {¶11} While this latter category allows the State room to work, it does not

permit the State to simply cry “dangerous” and prevail. “Although the legislature may

make some broad determinations” in passing categorical bans, courts cannot “accept

those determinations blindly, as ‘complete deference to legislative line-drawing would

allow legislatures to define away a fundamental right.’” Thacker, 

 (1st Dist.), quoting United States v. Williams, 

 (6th Cir. 2024).

Thus, we explained, a court assessing a danger-based categorical disarmament should

consider “(1) whether the class of persons disarmed can reasonably be presumed

dangerous with a firearm, and (2) whether the duration of the disarmament is

realistically tailored to the danger persons in that class pose.” Id. at ¶ 54.




                                            5
                 OHIO FIRST DISTRICT COURT OF APPEALS


                                           B.

       {¶12} With this framework in mind, we turn to the case and statute before us.

Mr. Brown’s statutory disability stemmed from his indictment for robbery under R.C.

2911.01(A)(2). Robbery constitutes a felony, and an “offense of violence,” as that term

is defined in R.C. 2901.01(A)(9).

       {¶13} At the time of his indictment on the weapons charge at issue here, Mr.

Brown had not been convicted of the robbery charge and had been released on bond

pending trial. As a condition of his bond, he was subject to electronic monitoring. The

State did not seek, nor did the trial court require, Mr. Brown’s disarmament as a

condition of his release on bond (but either certainly could have). The weapon at issue

in this case was found when officers from the Hamilton County EMU searched Mr.

Brown’s apartment.

       {¶14} Our task, then, is to determine whether, under these facts, the State may

render Mr. Brown’s gun possession a crime.

       {¶15} First, we must ask whether the Second Amendment’s plain text covers

the conduct at issue here. But that inquiry need not detain us long, because the State

concedes the point. Mr. Brown’s conduct, therefore, was presumptively protected by

the Constitution, and we proceed to step two.

       {¶16} Second, we ask whether the disarmament imposed by R.C.

2923.13(A)(2), as applied in this case, falls within our Nation’s historical tradition of

firearms regulation.    Specifically, we consider whether the State has provided

historical evidence demonstrating general acceptance of a regulation like the one

applied here from at or around the time of the ratification of the Second Amendment.

                                           1.

       {¶17} We begin the historical inquiry by considering the State’s evidence that



                                           6
                 OHIO FIRST DISTRICT COURT OF APPEALS


our Nation has a specific historical tradition of disarming those like Mr. Brown.

       {¶18} The State struggles in this regard because it must admit that, like in

Thacker, Ohio’s application of R.C. 2923.13(A)(2) to Mr. Brown renders it “an ‘outlier’

among its sister states.” See Thacker, 

 (1st Dist.), quoting

Bruen, 

 (Kavanaugh, J., concurring). In its decision below, the trial court

cited to one of its earlier opinions where it observed that the parties found only two

other states with laws comparable to the application of R.C. 2923.13(A)(2) challenged

here: Hawaii and Washington.           See Haw.Rev.Stat. 134-7(b); Wash.Rev.Code

9.41.040(2)(a)(vi). The State does not quibble with this conclusion, and our own

research seems to validate it.

       {¶19} And, it must be emphasized, Ohio only decided to start barring

individuals under indictment from firearm possession about 50 years ago. See State

v. Carnes, 

 (noting that R.C. 2923.13 was enacted in 1972). This

certainly does not represent a long-standing tradition, even in our own State.

       {¶20} To be sure, “the ‘outlier’ character of Ohio’s law in this area does not,

itself, render it unconstitutional.” See 

. But it does raise some alarm

bells. Presumably, all states share Ohio’s concern that weapons in the hands of those

believed to have committed violent crimes pose a threat to public safety. Yet, despite

the universality of this perspective, the overwhelming majority of Ohio’s sister states

have chosen not to enact a law like Ohio’s—perhaps feeling that such a law would cross

some constitutional line, or else that they were fully capable of managing the danger

through   individualized    disarmament     determinations     and/or    more    limited

encroachments on the right to bear arms, such as prohibitions on purchase, transport,

or public carry. The State’s attempt to prosecute Mr. Brown, therefore, is not only

unsupported by the State’s historical evidence, “it also bucks the general consensus


                                           7
                 OHIO FIRST DISTRICT COURT OF APPEALS


among modern legislatures.” 

       {¶21} In light of Ohio’s experience, perhaps it’s not surprising that the State

offers no evidence of any specific historical tradition, dating back either to the

founding or reconstruction era, of categorically disarming individuals based solely on

the fact of their indictment—either in general, for violent crimes, or for robbery in

particular. The State identifies no statute in this State’s history that resembles R.C.

2923.13(A)(2), nor does it point to any common-law tradition deeming it a crime to be

armed while under indictment. The absence of such evidence, while not fatal to the

State’s appeal, renders its task more difficult.

       {¶22} Instead, the State tries to broaden the aperture, insisting that felonious

behavior justifies a determination that someone cannot be trusted with firearms. In

other words, the State suggests that history and tradition grant the states the power to

disarm any person found to have engaged in felony conduct.

       {¶23} But this argument suffers from two flaws. The first is that, as in

Thacker, the State provides no clear historical evidence that felons were disarmed at

the founding. See Thacker, 

 (1st Dist.). In its brief, the State

cites several historical state laws, and points to a federal district court decision citing

more, United States v. Omar, 

, at *10 (S.D. Ohio Nov.

14, 2023). But not one of the cited statutes actually disarmed a person because of his

felonious conduct.

       {¶24} Rather, these statutes cited by the State generally evince a historical

tradition permitting the execution of convicted felons or the forfeiture of their assets.

As in Thacker, the State rests its categorical-felon-disarmament theory on the

rationale that, “because many felonies—including some nonviolent offenses—were

punished by death in 1791, the government must have been able to inflict the lesser


                                            8
                OHIO FIRST DISTRICT COURT OF APPEALS


punishment of disarmament for such crimes.” See 

. Although we

continue to find it “difficult to understand” how laws exercising the State’s power to

inflict death or total asset forfeiture on felons are “relevantly similar” to Ohio’s

weapons-under-a-disability statute, we once again have no reason to resolve the issue

of categorical felon-disarmament in this case. See id. at ¶ 67.

       {¶25} Even if, as the State suggests, founding-era governments possessed the

untrammeled power to disarm individuals convicted of a felony, Mr. Brown was not

such a felon. He had only been indicted for a felony offense when the State charged

him with possessing a weapon under a disability. As we explained in Thacker, any

categorical felon-disarmament rule would necessarily rest on the disarmed

individual’s conviction. And a felony conviction, to the founding generation, meant at

least two things: (1) trial by jury, and (2) a heightened burden of proof, understood

today as proof beyond a reasonable doubt. See United States v. Gaudin, 

 (1995) (describing how the Fifth and Sixth Amendments “require criminal

convictions to rest upon a jury determination that the defendant is guilty of every

element of the crime with which he is charged, beyond a reasonable doubt”); accord

Apprendi v. New Jersey, 

 (2000).

       {¶26} In Thacker, we explained the relationship between a felony conviction

and the right to trial by jury. See Thacker, 

 (1st Dist.). We

recounted how founding-era voices deemed juries to be “‘more necessary than

representatives in the legislature’ in ensuring liberty,” and how, in the Declaration of

Independence, the colonists included the deprivation of jury trials among their

grievances with the crown. 

 quoting “A Farmer” in 1 Debates on the Federal

Judiciary: A Documentary History 34, 34 (Bruce A. Ragsdale Ed., Fed. Judicial Ctr.

2013), and DECLARATION OF INDEPENDENCE, July 4, 1776. And we noted that “the right


                                           9
                 OHIO FIRST DISTRICT COURT OF APPEALS


to a criminal jury was the ‘only right secured in all state constitutions penned between

1776 and 1787.’” 

 quoting Amar, Foreword, Sixth Amendment First Principles, 

, 681 (1996); accord Duncan v. Louisiana, 

 (1968).

       {¶27} In addition to the jury, criminal proceedings since the founding have

also been defined by the high burden of proof imposed upon the government—a

standard that we now describe as proof beyond a reasonable doubt. See In re Winship,

 (1970) (holding “that the Due Process Clause protects the accused

against conviction except upon proof beyond a reasonable doubt”).

       {¶28} To those alive in the founding era, therefore, a felony conviction came

from a jury applying a heightened standard of proof. Only with such procedural

safeguards could the State lawfully impose a sentence of death or other punishment.

Thus, any argument that the State may today disarm all those whom it could execute

at the founding presupposes that the disarmed individuals received comparable

protections.

       {¶29} At the time when authorities discovered his weapon, Mr. Brown had

received no jury trial on his robbery charge—only a one-sided grand-jury proceeding

and subsequent bond hearing before a judge. Nor had he been adjudicated guilty

under a reasonable-doubt standard; the grand jury only needed probable cause to

indict, a threshold far lower than that necessary to convict. See State ex rel. Lipschutz

v. Shoemaker, 

 (1990) (“An indictment is a mere accusation, but

it indicates that a grand jury had found probable cause to believe in the truth of the

accusation.”); Locke v. United States, 

 (1813) (Marshall,

C.J.) (“the term ‘probable cause,’ according to its usual acceptation, means less than

evidence which would justify condemnation”); Illinois v. Gates, 

(1983), quoting Spinelli v. United States, 

 (1969) (“‘[O]nly the


                                           10
                OHIO FIRST DISTRICT COURT OF APPEALS


probability, and not a prima facie showing, of criminal activity is the standard of

probable cause.’”). In fact, the robbery indictment that created Mr. Brown’s disability

was ultimately dismissed and the record expunged. Mr. Brown, therefore, was not a

felon as the founders would have understood the concept and he would not have been

subject to any per se felon disarmament.

       {¶30} An indictment is a one-sided preliminary allegation of criminal conduct.

The State, quite simply, fails to demonstrate any specific tradition in this country of

disarming those indicted for crimes of violence. And an indictment on probable cause

cannot be reasonably analogized to a conviction by a jury persuaded of guilt beyond a

reasonable doubt. The State certainly does not substantiate disarming individuals

afforded so little in terms of procedural protections. We therefore proceed to consider

the State’s broader, dangerousness-based arguments.

                                           2.

       {¶31} The State next seeks to place this case within our Nation’s tradition of

disarming those determined to be dangerous. We, like numerous other courts, have

recognized such a historical tradition. See Thacker, 

 (1st

Dist.) (“our nation has a ‘history and tradition’ of disarming individuals who pose a

particular danger with a firearm”); Rahimi, 

 (“Since the founding, our

Nation’s firearm laws have included provisions preventing individuals who threaten

physical harm to others from misusing firearms.”); Williams, 

(“governments in England and colonial America long disarmed groups that they

deemed to be dangerous”).

       {¶32} But this tradition is not a blank check. In Rahimi, the Supreme Court

accepted that the categorical weapons ban imposed under 18 U.S.C. 922(g)(8) was

such a traditional danger-based disarmament, but emphasized the tailored


                                           11
                 OHIO FIRST DISTRICT COURT OF APPEALS


characteristics of both the modern statute and the government’s historical analogues.

See 

.         First, that statute required tailored, individualized

determinations that an individual posed a danger before disarming them. 

;

. Second, the disarmament was temporally limited. 

;

. And third, the disarmed individual received clear notice prior to the

imposition of criminal sanctions. 

; 

.

       {¶33} This court, in Thacker, found R.C. 2923.13(A)(3) lacking in the second

category, at least as applied to a defendant previously adjudicated delinquent as a

juvenile for a nonviolent offense. 

. The State’s application of its

law to Mr. Thacker suggested “an indefinite presumption that those adjudicated to be

nonviolent delinquent juveniles will forever be dangerous,” and therefore might

forever be disarmed. Id. at ¶ 102. The statute disarmed Mr. Thacker in perpetuity,

remediable only by “an act of grace by the trial court.” Id. at ¶ 100. This, we explained,

went far beyond our Nation’s history of disarming laws, which were “tailored to the

duration of the danger” the disarmed individual posed. Id. at ¶ 89. We therefore held

that Mr. Thacker’s juvenile delinquency for complicity to marijuana trafficking was

too slender a reed on which to base such a perpetual disability. Id. at ¶ 95.

       {¶34} In Mr. Brown’s case, the State correctly points out that R.C.

2923.13(A)(2) offers just the sort of temporal limitation missing in Thacker. Mr.

Brown’s statutory disability was created by his indictment for a violent felony offense,

and would necessarily terminate with that indictment. If Mr. Brown were convicted

of the offense in the indictment, R.C. 2923.13(A)(2) would impose a new disability

based upon that conviction. And if Mr. Brown were acquitted or his indictment

dismissed, his disability would vanish entirely.

       {¶35} But that point alone fails to carry the day. The problem with the State’s


                                           12
                OHIO FIRST DISTRICT COURT OF APPEALS


application of R.C. 2923.13(A)(2) to Mr. Brown stems from Rahimi’s other two

considerations. No court (or jury) expressly found that Mr. Brown poses a danger with

a firearm—it bears repeating that the trial court in his robbery case released him on

bond with no weapons restriction. Instead, the State argues that Ohio’s weapons

under a disability statute provides a “legislatively determined proxy for a

dangerousness determination.” 

 (1st Dist.). Such categorical proxy

determinations can be permissible, but are subject to judicial scrutiny. Id. at ¶ 82.

When such proxy determinations rest on prior proceedings, we must consider (1)

whether the fact found in the prior proceeding can justify a presumption that the

defendant was dangerous, and (2) whether the proceeding provided “an adequate

vehicle” for making so weighty a determination. Id. at ¶ 83.

       {¶36} The substance of Mr. Brown’s underlying indictment, and therefore of

his underlying disability concerned the commission of a violent felony—in his case,

robbery. An individual’s prior commission of a violent offense as an adult likely

justifies some presumption of dangerousness. See Williams, 

 (noting

the historical rationale for presuming those convicted of “crimes against the person”

to be dangerous). For the purposes of this case, however, we need not determine the

contours and scope of that presumption.

       {¶37} The problem here is how the determination was made. Before the State

disarms Mr. Brown for his involvement in a robbery, it must have some method to

determine that he was involved in that robbery. The statute provides three methods

for making that antecedent determination: (1) indictment, (2) conviction, and (3)

juvenile adjudication. See R.C. 2923.13(A)(2) (imposing weapons disability on any

person who “is under indictment for or has been convicted of any felony offense of

violence or has been adjudicated a delinquent child” for equivalent conduct). In Mr.


                                          13
                 OHIO FIRST DISTRICT COURT OF APPEALS


Brown’s case, we deal only with the first of these.

       {¶38} In general, the State must initiate its felony prosecutions by grand jury

indictment, unless the defendant validly waives that right. See Ohio Const., art. I, § 10

(providing generally that “no person shall be held to answer for a capital, or otherwise

infamous, crime, unless on presentment or indictment of a grand jury”); Crim.R. 7(A).

The grand jury is a body of nine individuals, convened and charged by the court of

common pleas “to inquire of and present all offenses committed within the county.”

See R.C. 2939.08; Crim.R. 6(A). The prosecutor may appear before the grand jury,

furnish the grand jury with information on any “matter cognizable by it,” interrogate

witnesses before it, and offer legal arguments. See R.C. 2939.10. Upon receiving such

evidence and counsel, the grand jury, by a vote of seven or more jurors, may find and

return a true bill of indictment against a defendant. See Crim.R. 6(F).

       {¶39} Because they are preliminary, grand jury proceedings lack many of the

touchstones of a criminal trial. Neither the defendant nor his counsel has a right to be

present. See Crim.R. 6(D) (delineating who may present to the grand jury); R.C.

2939.10 (same); State v. Stafford, 

, ¶ 70 (7th Dist.) (“[T]he accused

has no right to appear before a grand jury, either personally or through counsel.”).

Such proceedings are generally kept secret, see Crim.R. 6(E), and do not require juror-

unanimity, see Crim.R. 6(F). In presenting to the grand jury, prosecutors are not

encumbered by the Ohio Rules of Evidence, see Evid.R. 101(D)(2), or the Fourth

Amendment’s exclusionary rule, see United States v. Calandra, 

(1974), leaving them free to rely upon hearsay or evidence seized unlawfully. Further,

the prosecutor may withhold from the grand jury material evidence that would be

exculpatory to the accused. State v. Wilks, 

, citing United States

v. Williams, 

 (1992). This is why, as the old adage goes, many believe


                                           14
                 OHIO FIRST DISTRICT COURT OF APPEALS


that you can indict a ham sandwich.

       {¶40} The grand jury’s job is to evaluate probable cause that the crime

occurred, in other words that the State “demonstrate[d] a ‘fair probability’ that a crime

has been committed” and raised “‘more than a bare suspicion’” of the defendant’s guilt.

See State v. Ferguson, 

 (8th Dist.), citing Maryland v. Pringle,

 (2003), and State v. Martin, 

. A grand jury’s

indictment, therefore, does not warrant a presumption that the defendant committed

a crime, only that probable cause existed to think that he may have. See 

; State v. Rodano, 

 (8th Dist.), citing Williams at 51 (“The

grand jury sits not to determine guilt or innocence, but to assess whether there is

adequate basis for bringing a criminal charge.”).

       {¶41} But a determination of dangerousness can be grounds for disarmament,

even if based upon something less than proof beyond reasonable doubt. Compare

Rahimi, 

 (upholding weapon disability based on dangerousness

finding in domestic-violence restraining order proceeding). To determine whether a

given proceeding fits within our historical tradition of disarming dangerous persons,

we, like the Court in Rahimi, consider whether the modern and founding-era

proceedings are comparably tailored to discern the party’s dangerousness, and

whether they employed at least comparable procedural protections in doing so.

Compare Thacker, 

 (1st Dist.).

       {¶42} To this end, the State analogizes the application of R.C. 2923.13(A)(2)

in this case to founding-era surety laws, which featured prominently in Rahimi. See

. In the late 18th century, justices of the peace and other judicial

officials could, upon complaint, demand that “suspected persons find particular and

special securities for their future conduct.” See 4 Blackstone, Commentaries on the


                                           15
                 OHIO FIRST DISTRICT COURT OF APPEALS


Laws of England *252 (1769). If, after taking evidence and hearing the parties, the

justice found there was “due cause shown,” he could demand of the suspected

individual sureties—usually sureties for the peace or for the good behavior. Id. at

*252-253.

       {¶43} Traditionally, the sureties were people—individuals who were willing to

guarantee that their principal (i.e., the “suspected person[]”) would not engage in the

feared conduct by together signing a “recognizance or obligation to the king.” Id. at

*252. Recognizance notes (1) they required the principal to appear before a court on

a date certain, (2) they imposed, if applicable, some condition the principal must

observe until that date, (3) they acknowledged a semi-fictional pre-existing debt owed

by the principal and his sureties to the Crown or to the people of the state, and (4) they

stated that the debt would be forgiven if the principal appeared upon the recognizance

date and complied with the condition. See 4 Burn, The Justice of the Peace, and Parish

Officer 84 (16th Ed. 1788); Dunlap, The New-York Justice 364-365 (1815) (adapting

and modifying Burn’s summary of English law to fit the law of New York).

       {¶44} A failure to find sureties (or in later times, to post a bond) precluded the

signing of a recognizance, and meant the suspected individual could be jailed. See

Rahimi, 

, citing Mass.Rev.Stat., Ch. 134, § 6 (1836); Dunlap at 393 (“It

seemeth certain that if the person to be bound be in the presence of the justice, he may

be immediately committed, unless he offer sureties . . . .”); 4 Burn at 269. And, if the

suspected individual engaged in any action that breached the terms of the

recognizance, or if that individual failed to appear on the fixed date, the debt would

come due or the bond would be forfeit. 

, citing 4 Blackstone at *253;

Dunlap at 395; 4 Burn at 273-275. Thus, in practice, the surety-and-recognizance

system operated as a sort of legal threat: behave as the recognizance demanded and


                                           16
                 OHIO FIRST DISTRICT COURT OF APPEALS


show up on the date specified, or else you (the principal) and your friend (the surety)

owe the government money.

       {¶45} The conduct required in these recognizances varied. Sometimes the

recognizance simply required the undersigned not to breach the peace. See 4 Burn at

265-277; Dunlap at 391-395; 4 Blackstone at *253.           However, if the suspected

individual “‘be not of good fame,’” the justice could bind the signer to his “good

behavior,” an obligation that reached further than merely keeping the peace. See

Dunlap at 397, quoting An Act Declaring the Powers and Duties of Justices of the

Peace, in Laws of the State of New York, 36th Sess., Vol. 2, Ch. 104, § 1, at 506 (1813).

These obligations could be general, or with respect to a particular complainant. See 4

Blackstone at *255 (distinguishing between “special” and “general” recognizances for

keeping the peace). And, in some circumstances an individual might be required to

give surety or “post a bond for going armed.” (Cleaned up.) Rahimi, 

(2024), discussing Mass.Rev.Stat., Ch. 134 (1836).

       {¶46} The surety laws suggest that, in certain instances, individuals at the

founding could be disarmed on less than conviction beyond a reasonable doubt.

However, they remain a far cry from the disarmament at issue in this case. For

example, the Court in Rahimi emphasized that firearm surety laws instructed a

magistrate to take evidence and provide an opportunity for the accused to be heard.

See 

, citing Mass.Rev.Stat., Ch. 134, § 3-4. As noted above, Mr.

Brown had no right to be heard or to present evidence in the proceeding before the

grand jury that led to his indictment, and the prosecutor was not obligated to present

any evidence favorable to him. See Stafford, 

, at ¶ 70 (7th Dist.);

Wilks, 

.

       {¶47} Founding-era surety proceedings were also inherently forward-


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                OHIO FIRST DISTRICT COURT OF APPEALS


looking, meant to assess present or future risks. Rahimi, 

 (2024),

quoting Mass.Rev.Stat., Ch. 134, § 1 (surety required a complaint from an individual

“‘having reasonable cause to fear’ that the accused would do him harm or breach the

peace”). As one author advised New York’s justices of the peace in 1815,

              The surety of the peace shall not be granted, but where there is a

       fear of some present or future danger, and not merely for a battery or

       trespass that is past, or for any breach of the peace that is past; for this

       surety of the peace is only for the security of such as are in fear; but the

       party wronged may bring his action, or punish the offender by

       indictment, and the justice, if he see cause, may bind over the affrayer

       to answer unto the indictment.

(Emphasis added.) Dunlap, The New-York Justice at 392; accord 4 Burn, The Justice

of the Peace, and Parish Officer at 268. While justices of the peace could consider

past conduct, they did so as a means of assessing an individual’s future danger. See

Dunlap at 391; 4 Burn at 266. By contrast, the grand jury’s inquiry when indicting Mr.

Brown was necessarily backward-looking. The grand jury was to indict Mr. Brown if

it found probable cause to believe that Mr. Brown had committed a criminal offense,

not merely if it believed him likely to engage in such conduct again.

       {¶48} These procedural elements illustrate the basic rationale underpinning

the surety laws, and help us to understand the scope and bounds of the Second

Amendment right in this area. The right to keep and bear arms, protected by the

Second Amendment, was not a privilege one forfeited as a punishment, but a right that

yielded when an individual was found by a court to be particularly dangerous. While

such determinations were sometimes categorical, they were often, as in the surety

laws, individualized and forward-looking. See Thacker, 

, at ¶ 45-48


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                 OHIO FIRST DISTRICT COURT OF APPEALS


(1st Dist.).

        {¶49} In this case, no judicial official or body found that Mr. Brown posed a

prospective danger with a weapon. In fact, the one judicial officer who scrutinized his

conduct let him walk free on bond without any firearm restriction. While the State

insists that simply being accused of a crime warrants stripping someone of his Second

Amendment rights, it fails to validate this conclusion with actual authority from the

historical record.

        {¶50} At a bail determination, the trial judge should consider “the weight of

the evidence against the defendant” and the “confirmation of the defendant’s identity,”

as well as his history and life conditions, before imposing conditions of pretrial release.

R.C. 2937.011(E). Thus, when considering whether to disarm the defendant as a

condition of bail, the trial court can distinguish between a defendant caught on video

firing a weapon into the ceiling of a bank, and a defendant whose indictment was

founded on the testimony of self-interested informants and coincidental

circumstances? So, too, might it treat an individual with a history of violent or erratic

conduct differently from an individual with no criminal record and a history of

responsible hunting or sport-shooting. As best we can glean from the record, the trial

court in Mr. Brown’s robbery case considered the appropriate bail factors and not only

allowed him to go free subject to an ankle monitor, but it declined to impose any

restriction on his possession of firearms.       We would not expect an inherently

dangerous person to be treated this way.

        {¶51} The forward-looking pretrial-release inquiry accounts for many of the

procedural and prospective concerns associated with the surety proceedings of old.

Indeed, the origin of our modern system of pretrial release on bail derives from the

same instrument used in the surety laws: the recognizance. See Dunlap, The New-


                                            19
                 OHIO FIRST DISTRICT COURT OF APPEALS


York Justice at 41 (noting that bail “must be by recognizance, and that the principal

shall appear at the next sessions, or oyer and terminer”). At the founding, the primary

difference between giving sureties for the peace and making bail was that, when a

principal was bailed, he was not put at his liberty but committed to the custody of his

“bail” (i.e., the person serving as surety and signing the recognizance). See 4 Burn,

The Justice of the Peace, and Parish Officer at 143 (noting that “bail is a custody; and

therefore the bail may retake the prisoner, if they doubt he will fly, and detain him,

and bring him before a justice”); Petersdorff, A Practical Treatise on the Law of Bail,

in Civil and Criminal Proceedings, 514 (1824) (noting that the bail was “invested with

. . . unrestricted authority over the person of the defendant”).

       {¶52} When an eighteenth-century defendant was admitted to bail, he and his

bail signed a recognizance, promising that the defendant would return to answer the

charges on a date certain. This process mirrored the surety proceedings, in which an

individual found to pose a credible threat with a firearm could likewise be made to sign

a recognizance, along with his sureties, promising to appear again before the court on

a date certain and to behave in the meantime. Ohio’s modern practice of granting

conditional pretrial release operates within these two traditions, effectively combining

the two historical instruments in a single recognizance.

       {¶53} Thus, disarmament as an individualized condition of bail fits more

comfortably within our Nation’s history and tradition of firearms regulation. The State

could undoubtedly ask a trial judge to disarm the bailed defendant, and the trial court

could oblige, if it found that the defendant posed a particular danger with a firearm.

In doing so, the court could consider not only the defendant’s alleged offense, which

is the only thing considered by R.C. 2923.13(A)(2), but also the evidence against him,

his history of violent or criminal conduct, and other appropriate circumstances.


                                           20
                OHIO FIRST DISTRICT COURT OF APPEALS


       {¶54} Channeling disarmament through such a pretrial-release proceeding

further guarantees that the defendant receives clear notice whether and when he must

forego his weapons, and provides him with an opportunity to be heard on the issue.

At his bail hearing, for example, the defendant could raise some peculiar need for self-

defense, which the trial court would consider when deciding the “least restrictive

conditions” necessary for to ensure public safety and the defendant’s return. See R.C.

2937.011(A).

       {¶55} Firearms, violent felonies, and grand-jury indictments all existed in

1791. And the founding generation, like our own, must have feared the harm that those

accused of violent felonies could wreak with firearms in the period pending their trial.

Yet the State has offered no example of a founding-era law like R.C. 2923.13(A)(2),

categorically disarming every individual indicted for certain offenses. Nor has it

offered any legal authority suggesting courts imposed such a categorical disarmament

as a matter of course. While the “general societal problem” targeted here “has

persisted since the 18th century,” the State has failed to produce “a distinctly similar

historical regulation addressing [the] problem.” See Bruen, 

. Rather,

the existence of the founding-era recognizance regimes suggests that the founding

generation “addressed the societal problem . . . through materially different means.”

 The absence of a categorical rule and historical pedigree of the particularized

proceedings are “relevant evidence that [R.C. 2923.13(A)(2)] is inconsistent with the

Second Amendment.” 

.

       {¶56} The State offers two additional, non-historical arguments in support of

its application of R.C. 2923.13(A)(2) to Mr. Brown. First, it points to a “robust

majority” of courts that have considered and upheld 18 U.S.C. 922(n) (“Section


                                          21
                 OHIO FIRST DISTRICT COURT OF APPEALS


922(n)”), the federal pretrial-disarmament statute, in the wake of Bruen. See, e.g.,

United States v. Posada, 

, 411 (W.D.Tex. 2023) (collecting cases).

Nearly all of these are trial court decisions, and are therefore nonprecedential even

within their respective jurisdictions.

       {¶57} In determining what persuasive weight to accord these federal

decisions, we must recall that Section 922(n) imposes a much less invasive restriction

upon gun ownership. While the federal statute embraces those indicted for a broader

array of crimes than R.C. 2923.13(A)(2), 922(n) only forbids those it covers “to ship or

transport in interstate or foreign commerce any firearm or ammunition or receive any

firearm or ammunition which has been shipped or transported in interstate or foreign

commerce.” Simple possession is not covered under 922(n), leaving ample room for a

defendant who already owned a weapon to keep it in his home for self-defense (akin

to Mr. Brown’s situation in this case).

       {¶58} Ohio’s statute sweeps more broadly. R.C. 2923.13(A) renders it a crime

to “knowingly acquire, have, carry, or use any firearm” if under a disability. And R.C.

2923.13(A)(2)’s and (A)(3)’s indictment-based disabilities turn every firearm a

defendant owns into contraband the second he is indicted. Many of the federal

decisions recognize the salience of such a distinction, emphasizing that Section

“922(n) is not a wholesale prohibition on the ability keep and carry firearms; indicted

individuals are prohibited only from obtaining new firearms or moving firearms

already in their possession.” United States v. Gore, 

, *6-

7 (S.D.Ohio Feb. 21, 2023); accord, e.g., United States v. Bartucci, 

,

806 (E.D.Cal. 2023) (“Section 922(n) is arguably less burdensome in firearm

regulation than surety laws. Surety laws placed a complete ban on individual's

possession of firearms if they were unable to post surety. Section 922(n), on the other


                                          22
                   OHIO FIRST DISTRICT COURT OF APPEALS


hand, does not prohibit felony indictees from continued possession and/or public

carry of firearms . . . .”).

          {¶59} Further, many of these federal decisions addressing Section 922(n) rely

upon analogy to the surety laws—the very analogy we have already considered and

rejected with respect to R.C. 2923.13(A)(2). Compare, e.g., 

; 

; United States v. Simien, 

, 552 (W.D.Tex. 2023); United States

v. Jackson, 

 (D.Md. 2023); United States v. Kays, 

, 1268 (W.D.Okla. 2022).

          {¶60} Most importantly, these federal cases seldom address the relevance of

the more individualized and historically pedigreed process of disarming individuals as

a condition of pretrial release to the Bruen inquiry. And why would they, when Section

922(n) imposes only a restriction on transfer and transport, as opposed to the

wholesale pretrial disarmament that federal judges may impose on a case-by-case

basis under 

(c)(1)(B)(viii)?

          {¶61} Finally, the State contends that, because “modern and historical

detention laws are far more burdensome than the prohibition against weapon

possession while indicted,” such a disarmament must surely be constitutional

(emphasis omitted). This logic parallels the reasoning of the Supreme Court in its

pretrial-asset-seizure cases, like Kaley v. United States, 

 (2014),

which held a grand jury’s indictment to be conclusive as to a defendant’s plausible

culpability in that context. Some district courts, like the District of Maryland in

Jackson, have extrapolated the reasoning of Kaley to suggest that, because an

indictment can take away your liberty, it can surely take away your guns. See 

.

          {¶62} This comparison to pretrial detention, however, ignores that the State’s


                                            23
                 OHIO FIRST DISTRICT COURT OF APPEALS


power to detain pretrial is circumscribed by the accused’s right to bail. The bail

hearing ensures an individualized determination of flight risk and dangerousness

before a defendant can be released or detained. And while the government may hold

some defendants without bail, it may not do so without careful consideration. See R.C.

2937.222. Even under the restrictive federal regime of the Bail Reform Act of 1984, a

defendant detained based on probable cause may be presumptively detained pending

trial for certain crimes, but nevertheless must receive “a full-blown adversary hearing,”

at which he may attempt to rebut that presumption. United States v. Salerno, 

 (1987); 18 U.S.C. 3142(e)-(g). Such an individualized regime contrasts

sharply with R.C. 2923.13(A)(2), which demands no prompt hearing and offers no

presumption to rebut; the minute you’re indicted for a “violent felony” in Ohio, you

must disarm.

       {¶63} More importantly, the State’s greater-includes-the-lesser argument

reveals nothing about our Nation’s history and tradition of firearms regulations—and

it smacks of the very interest-balancing that Bruen sought to quash in the Second

Amendment context. See Bruen, 

. Indeed, Salerno, the touchstone case

permitting pretrial detention without bail, was founded upon a traditional due process

balancing of state and private interests. See 

 (weighing “[t]he

government’s interest in preventing crime by arrestees” against “the individual’s

strong interest in liberty”). And cases allowing pretrial property seizures through a

similar greater-lesser argument, like Kaley and United States v. Monsanto, 

 (1989), implicitly rely upon a similar weighing of interests. But Bruen was very

clear: the scope of the Second Amendment right is fixed by history, brought into the

present by analogy. “It is this balance—struck by the traditions of the American

people—that demands our unqualified deference.” 

.


                                           24
                OHIO FIRST DISTRICT COURT OF APPEALS


                                       …

       {¶64} Our Nation has always had ways of disarming individuals who pose a

danger to the public. The historical materials before us, however, instruct that

disarming someone like Mr. Brown traditionally required a neutral decisionmaker to

make an individualized and forward-looking assessment of dangerousness. If the

State felt Mr. Brown posed a danger with a weapon, it could have employed such a

process by requesting that the trial court order him disarmed as a condition of pretrial

release. But the State never sought such a condition, and the judge never imposed

one. Therefore, we hold that the application of R.C. 2923.13(A)(2) to Mr. Brown was

unconstitutional under the Second and Fourteenth Amendments, overrule the State’s

sole assignment of error, and affirm the trial court’s judgment dismissing the weapon-

under-a-disability charge.

                                                                   Judgment affirmed.

KINSLEY, J., concurs.
ZAYAS, P.J., dissents.

ZAYAS, P.J., dissenting.

       {¶65} I respectfully dissent. This cause should be remanded to the trial court

for further consideration in light of, and consistent with, United States v. Rahimi, 

 (2024). A remand is appropriate when “intervening developments . . . reveal

a reasonable probability that the decision below rests upon a premise that the lower

court would reject if given the opportunity for further consideration, and where it

appears that such a redetermination may determine the ultimate outcome of the

matter.” Welsons v. Hall, 

 (2010), citing Lawrence v. Chater, 

 (1996) (per curiam).

       {¶66} Here, in applying Bruen, the trial court concluded that “the State’s




                                           25
                 OHIO FIRST DISTRICT COURT OF APPEALS


analogy to historical surety laws requiring those who ‘stand accused’ of a crime to ‘post

a bond before publicly carrying a firearm’ cannot be said to be a comparable burden.”

However, in Rahimi, the Supreme Court clarified the types of historical evidence that

courts may rely upon when considering a Second Amendment challenge. 

. The Court noted that “some courts ha[d] misunderstood the methodology of [its]

recent Second Amendment cases” and explained that “[t]hese precedents were not

meant to suggest a law trapped in amber.”          

   It then held that the Second

Amendment “permits more than just those regulations identical to ones that could be

found in 1791” and thus does not require a “historical twin” to justify a modern firearm

restriction. 

.

       {¶67} The correct constitutional inquiry is whether the restriction is

“consistent with the principles that underpin our regulatory tradition,” meaning

whether it is “‘relevantly similar’ to laws that our tradition is understood to permit.”

, quoting N.Y. State Rifle & Pistol Assn. v. Bruen, 

 (2022). In

this regard, the government must identify only a “historical analogue,” not a “historical

twin,” to the challenged regulation. Id. at 701. And the State can rely on “relevantly

similar” historical precursors even if they do not “precisely match” the regulation at

issue. Id. at 692. “[W]hen a challenged regulation does not precisely match its

historical precursors, ‘it still may be analogous enough to pass constitutional muster.’”

Id., quoting 

. “The law must comport with the principles underlying the

Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” 

       {¶68} In light of Rahimi’s recent clarification of the second step of the analysis,

a remand is appropriate for the trial court to consider whether the State’s historical




                                           26
                   OHIO FIRST DISTRICT COURT OF APPEALS


analogues are “analogous enough to pass constitutional muster.”2 

        {¶69} Accordingly, I would reverse the judgment of the trial court and remand

the cause to the trial court to reconsider the issue in light of, and consistent with,

Rahimi. See, e.g., Vincent v. Garland, __ U.S. __, 

 (2024) (vacating

judgment and remanding for further consideration in light of Rahimi); Jackson v.

United States, __ U.S. __, 

 (2024) (vacating judgment and remanding

for further consideration in light of Rahimi).



Please note:

The court has recorded its entry on the date of the release of this opinion.




2 The State may have additional analogues for the Court to consider in light of Rahimi.




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