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Of guns and marijuana

Under Ohio law, it's a third degree felony to possess a gun if you're under indictment or have been convicted of a felony offense of violence, or any drug offense.   Two years ago, in State v. Clay (discussed here), the Ohio Supreme Court held that in order to convict a defendant of the "under indictment" prong, the state had to show that the defendant was "reckless" in knowing whether he was under indictment, rejecting the state's contention that the statute was one of strict liability.

Last year, in State v. Johnson, the 8th District went them one better, holding that the same applied to the conviction portion of the statute:  the state had to prove that the defendant was "recklessly" aware that he had been convicted of a crime which precluded him from having a weapon.  I said at the time that "I have a feeling this isn't going to get by the Columbus Seven," and, based on the oral argument before the Supreme Court a couple of weeks ago, my prognosticative abilities are markedly better than this guy's.

The problem with Johnson's argument was raised by Justice Lundberg Stratton a few minutes into the prosecutor's argument.  In Clay, the defendant had't been served with the indictment until after the incident which gave rise to the disability charge, and the state introduced no evidence that Clay was aware of the indictment at the time he committed the disability offense.  But that's a mistake of fact.  Here, Johnson seemed to be arguing that he was unaware that the crimes for which he had been convicted created the disability.  That's a mistake of law, and calls into play the time-worn axiom about ignorance of the law not being an excuse.

Johnson did have some cards to play.  The state alleged two disabilities:  one for misdemeanor marijuana possession, and the other for selling counterfeit drugs.  That's the fine line that Johnson's lawyer, my buddy John Martin of the Cuyahoga County Public Defender's office, tried to walk:  the issue was not whether Johnson knew that his convictions precluded him from having a weapon -- that would clearly fall under "ignorance of the law" -- but whether he knew that the convictions were of "drug offenses," which would preclude him from having a weapon.  A mighty fine line indeed, and although Martin did a great job selling it, from the responses he got it didn't seem too many justices were buying.

Which is too bad.  As an amicus brief pointed out, as a practical matter at no time is a marijuana misdemeanant informed by anyone -- his lawyer, the prosecutor, the judge, his probation officer, should he even have one -- that his conviction forever precludes him from possessing a gun.  Earlier this year the 1st District held that even minor misdemeanor possession is a disabling offense; as Martin pointed out, in such a case the defendant may never even appear in court, simply sending in a waiver and his check as he would do with a traffic ticket.  Isn't there a due process argument here?

Although it didn't arise in Johnson's case, there are a couple of other arguments that might be made here.  The first is the Padilla argument, based on the Supreme Court's holding a few months ago in Padilla v. Kentucky (discussed here) that a lawyer had provided ineffective assistance by assuring his client that there would be no immigration consequences to a guilty plea.  The Court noted that deportation could be a far more severe penalty than what might be imposed for the underlying conviction.  A similar argument would be even more appropriate in Johnson's case; the potential consequences of a third degree felony are far more severe, in a direct apples-to-apples comparison, than the consequences of a misdemeanor marijuana conviction. 

Of course, the Padilla argument isn't a defense to a weapons under disability charge; it simply provides a basis for arguing that the underlying conviction creating the disability should be vacated because of ineffective assistance of counsel.  That's assuming that there was counsel in the underlying case; furthermore, Padilla dealt with a situation where the defendant was specifically given the wrong advice, while the situation here would more likely be one in which no advice was given because the subject was never broached.  It's one thing to argue that an attorney has the duty to provide correct advice when asked, which is basically all Padilla held; arguing that the attorney has the affirmative duty to provide information on all the possible collateral consequences of a guilty plea goes far beyond that.

The other potential argument depends on how -- or whether -- the US Supreme Court resolves issues in McDonald v. City of Chicago that were left over from its decision in District of Columbia v. Heller.  In Heller, the Court held that the 2nd Amendment created an individual right to bear arms in self-defense, and that the District's laws violated that right; McDonald, argued several months ago, presents the issue of whether the 2nd Amendment applies to the states.  Especially in the context of Johnson, an argument could be raised there is not a sufficient governmental interest (or any governmental interest) in preventing people convicted of misdemeanor drug offenses from having weapons to warrant the deprivation of their constitutional rights.

Of course, as I pointed out after the argument in McDonald, nobody seems to want to discuss just what the parameters of a 2nd Amendment right would be in the context of gun regulations and disability laws.  So it's likely that the ultimate reductio ad absurdum scenario for Johnson's situation -- someone presented with the prospect of being imprisoned for up to five years because he was convicted of having a couple of joints two decades ago -- can be precluded only by the exercise of prosecutorial discretion or the intervention of the General Assembly.

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