Buckeye Firearms Found., Inc. v. Cincinnati ( 2020 )

[Cite as Buckeye Firearms Found., Inc. v. Cincinnati, 2020-Ohio-5422.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
BUCKEYE FIREARMS FOUNDATION : APPEAL NO. C-190569
INC., TRIAL NO. A-1803098
:
OHIOANS FOR CONCEALED CARRY,
: O P I N I O N.
and
:
JORDAN TELTING,
:
Plaintiffs-Appellees,
:
vs.
:
CITY OF CINCINNATI, OHIO,
:
and
:
PAULA BOGGS MUETHING, in her
official capacity as city solicitor, :
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 25, 2020
James P. Sean Maloney, Ronald Lemieux, and Haynes Kessler Myers & Postalakis,
Inc., David S. Kessler and Stephen P. Postalakis, for Plaintiffs-Appellees,
Paula Boggs Muething, City Solicitor, and Emily Smart Woerner, Chief Counsel -
Litigation, for Defendants-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} The issue presented in this appeal is whether the city of Cincinnati
exceeded its home-rule authority by enacting a municipal ordinance banning the
possession and transfer of firearm “trigger activators.” Because the ordinance
conflicts with a state law governing an individual’s rights to ownership and
possession of firearms, we determine that the municipal ordinance is an invalid
exercise of home-rule authority. We affirm the judgment of the trial court.
Background and Procedure
{¶2} In May 2018, Cincinnati City Council adopted an emergency ordinance
banning “trigger activators” within the city (“Ordinance 91-2018”). Ordinance 91-
2018 defines “trigger activators” as “a device designed or functioning to accelerate
the rate of fire of a firearm to approximate an automatic weapon, including bump
stocks, trigger cranks, slide fire devices, and other similar accessories.” Any person
who unlawfully owns, possesses, sells, or uses a trigger activator within the city
would be guilty of a first-degree misdemeanor.
{¶3} Shortly after the passage of Ordinance 91-2018, plaintiffs-appellees
Buckeye Firearms Foundation, Inc., (“Buckeye Firearms”) Ohioans for Concealed
Carry, and Jordan Telting (collectively the “Firearm Plaintiffs”) sent a letter to the
city demanding that it take action to invalidate or enjoin the enforcement of
Ordinance 91-2018. The Firearm Plaintiffs contended that Ordinance 91-2018
conflicted with R.C. 9.68, a state statute recognizing an individual’s right to possess
firearms and their components in accordance with state and federal law. The city
declined to take action, and the Firearm Plaintiffs filed the instant lawsuit against
defendants-appellants the city of Cincinnati and former city solicitor Paula Boggs
Muething (collectively “the city”) seeking a declaratory judgment that Ordinance 91-
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2018 conflicted with state law and an injunction against any enforcement of
Ordinance 91-2018 by the city.
{¶4} After an evidentiary hearing, the trial court granted a preliminary
injunction in favor of the Firearm Plaintiffs. The parties exchanged discovery,
including deposing expert witnesses, and the parties then filed cross-motions for
summary judgment.
{¶5} In their motion for summary judgment, the Firearm Plaintiffs
introduced evidence as to the effect of Ordinance 91-2018. Buckeye Firearms
introduced deposition testimony and affidavits from its corporate representative, its
president and board member, and a volunteer website manager. The evidence
showed that Buckeye Firearms engages in activities that advance the rights of gun
owners throughout Ohio, including educational activities like school-security
programs. Buckeye Firearms also hosts and operates an annual fundraising event
called the Buckeye Bash, during which Buckeye Firearms raffles firearms and
ammunition as prizes. In connection with the Buckeye Bash, Buckeye Firearms
stores and transfers firearms and ammunition. Buckeye Firearms argued that
Ordinance 91-2018 negatively impacted its ability to raffle firearms to people in
Cincinnati.
{¶6} Similar to Buckeye Firearms, Ohioans for Concealed Carry is also a
nonprofit corporation that engages in various activities to advance gun rights,
including legislation, litigation, educational grants, and fundraising. Finally, Telting
testified that he works as a security guard in Cincinnati, and that he also owns a
“trigger activator,” namely a binary trigger. As a result of Ordinance 91-2018, Telting
must store his binary trigger outside city limits.
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{¶7} The Firearm Plaintiffs also introduced testimony from Jeff Steley, a
firearms expert, who explained that “trigger activators” are integral parts of a
firearm, because they affect the function of the firearm. Steley explained that trigger
activators are devices installed on firearms, such as the Armalite rifle system.
According to Steley, the Armalite rifle system has a modular design allowing the
consumer to replace or customize rifle parts, such as stocks and trigger mechanisms.
Steley also testified that consumers can have firearms custom built with trigger
activators. For instance, a consumer could have a firearm custom built with a binary
trigger as a “drop-in” trigger mechanism, where the binary trigger is the only trigger,
without which the firearm would not operate. Based on Steley’s testimony, the
Firearm Plaintiffs argued that “trigger activators” can be “components,” and thus
Ordinance 91-2018 conflicts with R.C. 9.68.
{¶8} The city also introduced its own firearms expert, James Yurgealitis.
Yurgealitis testified as a former federal agent with the Bureau of Alcohol, Tobacco,
Firearms, and Explosives. Yurgealitis explained that trigger activators are generally
“aftermarket” accessories to firearms that change the rate of performance of a
firearm from how it was originally manufactured. Yurgealitis admitted, however,
that certain firearms are manufactured with trigger activators.
{¶9} The trial court ultimately granted summary judgment in favor of the
Firearm Plaintiffs and held that Ordinance 91-2018 conflicted with R.C. 9.68, and
thus the city exceeded its home-rule powers. The trial court also granted the Firearm
Plaintiffs’ motion for attorney fees and costs. This appeal by the city ensued.
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Buckeye Firearms’ Standing to Bring the Action
{¶10} In its first assignment of error, the city argues that the trial court erred
in granting summary judgment in favor of Buckeye Firearms because Buckeye
Firearms lacks standing.
{¶11} In order for a trial court to have jurisdiction over an action, the matter
must be justiciable, and “[a] matter is justiciable only if the complaining party has
standing to sue.” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-
Ohio-2382, 13 N.E.3d 1101, ¶ 11, citing Fed. Home Loan Mtge. Corp. v.
Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 41. Standing
to bring a lawsuit requires litigants to show that “they have suffered ‘(1) an injury
that is (2) fairly traceable to the defendant’s allegedly unlawful conduct, and (3)
likely to be redressed by the requested relief.’ ” ProgressOhio.org at ¶ 7, quoting
Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22.
Standing is “an indispensable part of the plaintiff’s case, each element must be
supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
{¶12} In their amended complaint, the Firearm Plaintiffs brought two causes
of action: (1) a taxpayer action under R.C. 733.59 and a request for injunctive relief
under R.C. Chapter 2727, and (2) declaratory relief under R.C. Chapter 2721 and R.C.
9.68.
{¶13} The city argues that Buckeye Firearms lacks standing in the taxpayer
action filed under R.C. 733.59 because Buckeye Firearms is a nonprofit association
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and not a taxpayer. The Firearm Plaintiffs do not allege that Buckeye Firearms is a
plaintiff in the statutory taxpayer action. They allege in their amended complaint
that Telting is a resident and taxpayer of the city, and that he made a written demand
to the city under the taxpayer statute. Thus, Buckeye Firearms was not a plaintiff in
the taxpayer action, and we need not determine whether it had standing to bring that
claim.
{¶14} The city also argues that Buckeye Firearms lacks standing under R.C.
Chapter 2721, Ohio’s Declaratory Judgment Act, and R.C. 9.68. Firearm Plaintiffs
allege in their amended complaint that Buckeye Firearms brings its action on behalf
of its members. “[A]n association has standing on behalf of its members when ‘(a) its
members would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in
the lawsuit.’ ” Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d
1088 (1994), quoting Hunt v. Washington State Apple Advertising Comm., 432 U.S.
333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).
{¶15} According to the city, Buckeye Firearms does not meet the test for
associational standing because it does not keep a membership list, it does not require
membership dues, and its executive director testified that he considers all Ohio gun
owners to be members of the organization. The city does not point to any authority
requiring an association to have paid membership or official membership lists in
order to establish standing to sue. Moreover, the record demonstrates that although
Buckeye Firearms does not keep an official list of members, it does have an email
listserv and sends electronic newsletters to those on the listserv. The record also
indicates that Buckeye Firearms has an executive director and board members, as
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well as a website manager. Thus, Buckeye Firearms has demonstrated that it is an
association with members.
{¶16} We further determine that Buckeye Firearms has established the three
elements required for associational standing. Buckeye Firearms’ executive director,
its website manager, as well as a third member filed affidavits claiming that they had
been negatively impacted by Ordinance 91-2018, because they could not possess
trigger activators within Cincinnati. Given the affidavits of Buckeye Firearms’
members, Buckeye Firearms meets the first prong of the associational-standing test,
which requires that its members would otherwise have standing to sue in their own
right. See Ohio Contrs. Assn. at 320. The second prong requires that the interests
the association seeks to protect are germane to the association’s purpose. Id.Buckeye Firearms’ interests include expanding and preserving gun rights of all gun
owners in Ohio, which would be protected by a declaratory judgment invalidating a
municipal ordinance limiting gun possession. The third prong for associational
standing requires that the claim and the relief requested will not depend upon the
participation of individual members in the lawsuit. Id. Buckeye Firearms seeks a
declaration that Ordinance 91-2018 conflicts with R.C. 9.68, which does not require
the participation of individual members. Buckeye Firearms has established the test
for associational standing in this declaratory-judgment action.
{¶17} Even if Buckeye Firearms did not meet the associational-standing
requirements for bringing a declaratory-judgment action, Buckeye Firearms has
established standing to sue in its own right. Ohio’s Declaratory Judgment Act
permits “any person whose rights, status, or other legal relations” depend upon the
validity or construction of a provision, statute, rule, or ordinance to have his or her
rights declared. R.C. 2721.03. “Person” as used in the Declaratory Judgment Act
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includes a corporation. R.C. 2721.01. Thus, Buckeye Firearms as a nonprofit Ohio
corporation would qualify as a “person” entitled to bring an action under the
Declaratory Judgment Act.
{¶18} The evidence put forth by Buckeye Firearms during summary
judgment demonstrates that Buckeye Firearms as an organization engages in limited
firearms trade in connection with an annual fundraiser in which the organization
raffles firearms products. According to Buckeye Firearms, Ordinance 91-2018
hinders its ability to trade and fundraise in the Cincinnati area. The evidence shows
that Buckeye Firearms has suffered an injury that is traceable to the city’s alleged
unlawful conduct, and that a declaratory judgment invalidating the ordinance would
redress its injury. See ProgressOhio.org, Inc., 139 Ohio St.3d 520, 2014-Ohio-2382,
13 N.E.3d 1101, at ¶ 7. Thus, Buckeye Firearms has standing to sue the city in a
declaratory-judgment action.
{¶19} It is worth noting that our sister appellate district recently determined
that Buckeye Firearms lacked standing to pursue a declaratory-judgment action
against the city of Columbus in a case very similar to the one at bar. See Ohioans for
Concealed Carry v. City of Columbus, 2019-Ohio-3105, 140 N.E.3d 1215, ¶ 45 (10th
Dist.), appeal allowed, Ohioans for Concealed Carry v. Columbus, 157 Ohio St.3d
1495, 2019-Ohio-4840, 134 N.E.3d 1210. In the Columbus case, the city of Columbus
adopted an ordinance banning the possession of firearm accessories that accelerate
the rate of fire. Buckeye Firearms, Ohioans for Concealed Carry, and another
individual challenged the ordinance and obtained a permanent injunction in the trial
court. On appeal, the city argued that the plaintiffs-organizations lacked standing
under the Declaratory Judgment Act because they failed to allege that they as
organizations or their members suffered an injury as a result of the challenged
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ordinance. The Tenth Appellate District agreed that Buckeye Firearms lacked
standing because it “did not allege the challenged ordinance affected them in
particular, as opposed to the general public, either as a result of their current status
or due to potential future prosecution.” Id. at ¶ 45.
{¶20} The deficiency with respect to Buckeye Firearms’ standing in the
Columbus case is not present in this case. Unlike the Columbus case where Buckeye
Firearms failed to show that it had suffered any harm different from the public at
large as a result of the ordinance, here Buckeye Firearms has provided specific
evidence that it as well as its members have been negatively impacted by the city’s
enactment of Ordinance 91-2018, because they cannot engage in trade, fundraising,
or travel with their banned firearm parts in the city. Therefore, we determine that
the Columbus case is distinguishable, and that Buckeye Firearms has established
standing to bring the underlying declaratory-judgment action here.
City Exceeded its Home-Rule Power
{¶21} The city’s first assignment of error also asserts that the trial court
erred in determining that the city exceeded its home-rule authority by enacting
Ordinance 91-2018.
{¶22} The Home Rule Amendment of the Ohio Constitution allows a
municipality such as the city “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.” See Article XVIII, Section 3,
Ohio Constitution. The Ohio Supreme Court has adopted a three-part test to
determine whether a municipality has exceeded its powers under the Home Rule
Amendment. See Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881
N.E.2d 255, ¶ 17. In Mendenhall, the court determined that a municipality exceeds
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OHIO FIRST DISTRICT COURT OF APPEALS
its powers 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.” Id., citing Canton v. State,
95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 9. When applying the three-
part test of Mendenhall, a court only considers the third part of the test, whether the
ordinance conflicts with state law, if the first and second parts of the test have been
satisfied first: the municipality has not exercised a power of self-government and a
general state law exists. Mendenhall at ¶ 18.
{¶23} We apply the three parts of Mendenhall to determine whether the city
exceeded its powers under the Home Rule Amendment in enacting Ordinance 91-
2018. The trial court held that Ordinance 91-2018 conflicted with the state statute,
R.C. 9.68. R.C. 9.68 was recently amended, but the statute in effect at the time of the
trial-court proceedings stated in pertinent part:
(A) The individual right to keep and bear arms, being a fundamental
individual right that predates the United States Constitution and Ohio
Constitution, and being a constitutionally protected right in every part
of Ohio, the general assembly finds the need to provide uniform laws
throughout the state regulating the ownership, possession, purchase,
other acquisition, transport, storage, carrying, sale, or other transfer of
firearms, their components, and their ammunition. Except as
specifically provided by the United States Constitution, Ohio
Constitution, state law, or federal law, a person, without further
license, permission, restriction, delay, or process, may own, possess,
purchase, sell, transfer, transport, store, or keep any firearm, part of a
firearm, its components, and its ammunition.
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(B) In addition to any other relief provided, the court shall award costs
and reasonable attorney fees to any person, group, or entity that
prevails in a challenge to an ordinance, rule, or regulation as being in
conflict with this section.
{¶24} The parties agree that the first and second parts of the Mendenhall test
are satisfied here because Ordinance 91-2018 is an exercise of the city’s police power,
and R.C. 9.68 is a general law. A general law exists when “ ‘a matter has become of
such general interest that it is necessary to make it subject to statewide control as to
require uniform statewide regulation, [and] the municipality can no longer legislate
in the field so as to conflict with the state.’ ” Mendenhall at ¶ 12, quoting State ex rel.
McElroy v. Akron, 173 Ohio St. 189, 194, 181 N.E.2d 26 (1962). In order to be a
general law, a state statute must:
‘(1) be part of a statewide and comprehensive legislative enactment, (2)
apply to all parts of the state alike and operate uniformly throughout
the state, (3) set forth police, sanitary, or similar regulations, rather
than purport only to grant or limit legislative power of a municipal
corporation to set forth police, sanitary or similar regulations, and (4)
prescribe a rule of conduct upon citizens generally.’
Cleveland v. State, 128 Ohio St.3d 135, 2010-Ohio-6318, 942 N.E.2d 370, ¶ 13,
quoting Canton at syllabus. The Ohio Supreme Court has already held that R.C. 9.68
meets the general-law test. See Cleveland at paragraph one of the syllabus.
{¶25} Therefore, because the first and second parts of the Mendenhall test
have been satisfied, we can consider the third part of the test as to whether
Ordinance 91-2018 conflicts with R.C. 9.68. See Mendenhall, 117 Ohio St.3d 33,
2008-Ohio-270, 881 N.E.2d 255, at ¶ 17.
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{¶26} In determining whether a municipal ordinance conflicts with a general
law, the Ohio Supreme Court stated in Mendenhall that an ordinance can conflict
with a general law directly or indirectly. Id. at ¶ 29-31. A direct conflict exists when
“ ‘[an] ordinance permits or licenses that which the statute forbids and prohibits, and
vice versa.’ ” Id. at ¶ 29, quoting Am. Fin. Servs. Assn. v. Cleveland, 112 Ohio St.3d
170, 2006-Ohio-6043, 858 N.E.2d 776, ¶ 40, and Cincinnati v. Baskin, 112 Ohio
St.3d 279, 2006-Ohio-6422, 859 N.E.2d 514, ¶ 19. This is also known as the
“contrary directives” test. Mendenhall, 117 Ohio St.3d 33, 2008-Ohio-270, 881
N.E.2d 255, at ¶ 29. An ordinance can also conflict with a general law indirectly,
which the court termed “conflict by implication.” Id. at ¶ 31. A conflict by
implication exists when the General Assembly has indicated that the state statute
controls the subject exclusively. Id. at ¶ 32, citing Baskin at ¶ 23.
{¶27} The Ohio Supreme Court declined to find a conflict by implication
existed between former R.C. 9.68 and a municipal ordinance prohibiting concealed
handguns in city parks. Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d
96, 2008-Ohio-4605, 896 N.E.2d 967. The court recognized that although former
R.C. 9.68 “embod[ied] the General Assembly’s intent to occupy the field of handgun
possession in Ohio, that intent ‘does not trump the constitutional authority of
municipalities to enact legislation pursuant to the Home Rule Amendment, provided
that the local legislation is not in conflict with general laws.’ ” Id., quoting Am. Fin.
Servs. Assn. at ¶ 31. Therefore, we will apply the contrary-directives test to
determine whether Ordinance 91-2018 directly conflicts with R.C. 9.68.
{¶28} R.C. 9.68 makes clear that Ohio citizens have the right to possess and
transfer “any firearm, part of a firearm, its components, and its ammunition.”
Ordinance 91-2018 bans possession and transfer of firearm “trigger activators.” The
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question in this case is whether “trigger activators” qualify as “components” of a
firearm such that Ordinance 91-2018 bans what R.C. 9.68 permits, and the two laws
conflict.
{¶29} The city argues that “trigger activators” are secondary accessories or
attachments to a firearm, and not “components.” The city argues that “components”
of a firearm as that term is used in R.C. 9.68 means “original equipment” or
“standard equipment.” The city relies on Steley’s expert testimony where he
admitted that trigger activators, such as bump stocks, change the rate of fire
compared to a normal, factory-issued stock.
{¶30} Nothing in the text of R.C. 9.68 supports the city’s view that firearm
components are limited to those parts that are standard or original to the firearm.
Nevertheless, even under the city’s restrictive definition of firearm “component,” the
city’s argument fails to harmonize R.C. 9.68 and Ordinance 91-2018. The city admits
that trigger activators can be included as original equipment on firearms, without
which the firearm would not function. Both of the firearm experts testified that some
firearms, including custom-made firearms, are produced with trigger activators.
Thus, at least with respect to some firearms, trigger activators are not after-market
“accessories” or “attachments,” and the trigger activators are “components” of the
firearm without which the firearm would not function.
{¶31} The dissent would conclude that trigger activators are accessories and
not components, because trigger activators are not necessary in order for a firearm to
fire. The dissent points out that even the trigger mechanism of a firearm is not
technically necessary in order to make a weapon fire. This line of reasoning
distinguishing between accessories and components, and necessary and unnecessary
parts to a firearm may have applicability in other areas of the law; however, it
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unnecessarily obfuscates the court’s task here, which is to apply the plain language of
R.C. 9.68.
{¶32} R.C. 9.68 makes clear that “[e]xcept as specifically provided by the
United States Constitution, Ohio Constitution, state law, or federal law, a person,
without further license, permission, restriction, delay, or process, may own, possess,
purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its
components, and its ammunition.” A “component” as that term is commonly used
means “a constituent part,” which serves “to form, compose, or make up a unit or
whole.” Merriam-Webster’s Online Dictionary, https://www.merriam-
webster.com/dictionary/component, and https://www.merriam-
webster.com/dictionary/constituent#h2 (accessed Nov. 19, 2020). Trigger
activators, such as bump stocks and trigger cranks, combine with other parts to make
up a firearm, and are thus “parts” or “components” as those terms are commonly
used.
{¶33} Because Ordinance 91-2018 bans trigger activators, which R.C. 9.68
permits, Ordinance 91-2018 conflicts with R.C. 9.68. Therefore, the city exceeded its
home-rule authority under Mendenhall in enacting Ordinance 91-2018. We agree
with the trial court that Ordinance 91-2018 is invalid.
{¶34} We overrule the city’s first assignment of error.
Award of Attorney Fees and Costs
{¶35} In its second assignment of error, the city argues that the trial court’s
award of attorney fees and costs was unreasonable.
{¶36} Both former R.C. 9.68 governing firearms regulations and R.C. 733.61
governing taxpayer actions expressly provided for an award of attorney fees and
costs to a prevailing challenger. In terms of reasonableness of fees, “[t]here is a
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strong presumption that the reasonable hourly rate multiplied by the number of
hours worked, which is sometimes referred to as the ‘lodestar,’ is the proper amount
for an attorney-fee award.” Phoenix Lighting Group, L.L.C. v. Genlyte Thomas
Group, L.L.C., 160 Ohio St.3d 32, 2020-Ohio-1056, 153 N.E.3d 30, ¶ 19. As a general
matter, an award of attorney fees is reviewed for an abuse of discretion. State ex rel.
Cincinnati Enquirer v. Allen, 1st Dist. Hamilton No. C-040838, 2005-Ohio-4856, ¶
11.
{¶37} At the hearing on attorney fees, the attorneys for Firearm Plaintiffs
testified as to their work on the case. All of the attorneys except for one testified that
they billed below their typical hourly rate because the clients could not afford to pay
their usual rate. The Firearm Plaintiffs presented attorney Robert Lyons, who
testified as an expert in legal billing and fees. Lyons testified that he believed the
fees were reasonable, given the technical nature of the case, the lowered billing rate
by the majority of the attorneys, and that the case included an evidentiary
preliminary-injunction hearing.
{¶38} The city presented testimony of Brian Sullivan, a partner at Dinsmore
and Shohl. Sullivan testified that he believed the fees were unreasonable given that
many of the time entries listed on the attorneys’ bills involved communications
among counsel. Sullivan noted that the entries lacked any detail as to how the
conferences among counsel advanced the case. Sullivan also indicated that the issue
was not overly complicated, but presented a legal question of whether Ordinance 91-
2018 conflicted with state law.
{¶39} The city argues that the Firearm Plaintiffs’ attorneys billed an
unreasonable number of hours because the attorneys spent too much time conferring
with one another on the case. Nevertheless, the city does not offer any specific
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evidence as to why the time spent collaborating on the case unreasonably increased
the fee amount. Lyons testified that time spent conferring among counsel can
actually expedite a case by eliminating research time. The city also points out that
counsel spent 18 minutes reviewing a notification form. Without more specific
arguments from the city, however, this court cannot hold that the trial court abused
its discretion in awarding the Firearm Plaintiffs attorney fees.
{¶40} The city also argues that the trial court impermissibly awarded costs to
the Firearm Plaintiffs. The city does not identify which costs were impermissibly
awarded, but the city cites to case law in which litigation expenses, such as expert-
witness fees, travel expenses, and photocopying fees were not recoverable as costs.
See, e.g., Bryant v. Walt Sweeney Auto, 1st Dist. Hamilton Nos. C-010395 and C-
010404, 2002-Ohio-2577.
{¶41} The Ohio Supreme Court has stated that courts should look to the
relevant statutes in determining the categories of litigation expenses that can be
recovered as costs. Centennial Ins. Co. v. Liberty Mut. Ins. Co., 69 Ohio St.2d 50,
430 N.E.2d 925 (1982). At the time of the hearing on fees and costs in this case, the
General Assembly had passed 2018 Am.Sub.H.B. 228, which amended former R.C.
9.68 to allow a prevailing challenger to recover “reasonable expenses” against a
political subdivision, including, but not limited to, reasonable attorney’s fees, court
costs, expert-witness fees, and loss of income. R.C. 9.68(B) and (C)(3). In light of
the General Assembly’s intent to allow a prevailing challenger to recover a broad
range of expenses under R.C. 9.68, and in the absence of a specific explanation from
the city as to what expenses were impermissibly awarded as costs, we cannot
conclude that the trial court abused its discretion in issuing its award to the Firearm
Plaintiffs.
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{¶42} We overrule the second assignment of error.
Conclusion
{¶43} In conclusion, we determine that Ordinance 91-2018
unconstitutionally conflicts with R.C. 9.68 under the Home Rule Amendment, and
therefore the trial court correctly entered judgment in favor of the Firearm Plaintiffs
by declaring Ordinance 91-2018 invalid and by entering an injunction against the
city’s enforcement of the ordinance. The Firearm Plaintiffs are entitled to an award
of attorney fees and costs pursuant to R.C. 733.61 and 9.68, and the city has failed to
demonstrate that the trial court abused its discretion in the amount of attorney fees
and costs awarded. Therefore, we affirm the judgment of the trial court.
Judgment affirmed.
MYERS, P.J., concurs.
CROUSE, J., concurs in part and dissents in part.
CROUSE, J., concurring in part and dissenting in part.
{¶44} I concur that the Firearm Plaintiffs have standing to bring this lawsuit,
but I must dissent from the majority’s conclusion that the city exceeded its home-
rule authority by enacting Ordinance 91-2018. Because the evidence showed that
trigger activators are “accessories” to firearms and not “components,” it was error for
the trial court to grant summary judgment in favor of the Firearm Plaintiffs and to
award them attorney fees.
{¶45} Ordinance 91-2018 bans “trigger activators.” A trigger activator is
defined as “a device designed or functioning to accelerate the rate of fire of a firearm
to approximate an automatic weapon, including bump stocks, trigger cranks, slide
fire devices, and other similar accessories.” Cincinnati Municipal Code 910-24. The
Firearm Plaintiffs argue that trigger activators can be firearm “components” and
therefore Ordinance 91-2018 conflicts with R.C. 9.68. The city contends that all
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OHIO FIRST DISTRICT COURT OF APPEALS
trigger activators are “accessories,” and therefore, Ordinance 91-2018 does not
conflict with R.C. 9.68. The General Assembly has not defined “component,” and so
has left that job to the courts.
{¶46} The trial court, without citing any authority, held that “[w]hen an
object that affects the use and function of a firearm becomes attached to the firearm
it becomes a component.” The majority’s holding is slightly narrower in that it states
that because some firearms, including custom-made firearms, are originally
produced with trigger activators, the trigger activators are not accessories, but rather
components of the firearm, without which the firearm would not function. As will be
explained below, I do not believe this is the correct way to define a “component.”
{¶47} The city points to Auto-Ordnance Corp. v. United States, 822 F.2d
1566, 1569-1570 (Fed.Cir.1987), for definitions of a “component” and an “accessory.”
In Auto-Ordnance, a case concerning firearms taxes, the court looked at the
dictionary definition of an accessory, which is “a thing of secondary or subordinate
importance,” “[a]n object or device that is not essential in itself but adds to the
beauty, convenience or effectiveness of something else,” and “ ‘equipment, usually
demountable and replaceable,’ that is added ‘for convenience, comfort, safety or
completeness.’ ” Id., citing Webster’s Third New International Dictionary 11 (1981)
and Webster’s New Universal Unabridged Dictionary 11 (2d Ed.1983). In contrast,
the court stated that a “part” is “an integral, constituent, or component part, without
which the article to which it is to be joined could not function.” Id., citing United
States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, T.D. 46,851 (1933). The
Firearm Plaintiffs define a “component” as something that is “essential or integral to
the operation of a firearm.” Thus, both parties agree that a firearm “component” is
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OHIO FIRST DISTRICT COURT OF APPEALS
something needed for a firearm to function, i.e., it is essential or integral to the
operation of a firearm.
{¶48} The General Assembly enacted R.C. 9.68 “to provide uniform laws
throughout the state regulating the ownership [and] possession * * * of firearms,”
their components, and their ammunition. Ohioans for Concealed Carry, Inc. v.
Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, 896 N.E.2d 967, ¶ 20, citing R.C. 9.68.
Nevertheless, “that intent ‘does not trump the constitutional authority of
municipalities to enact legislation pursuant to the Home Rule Amendment.’ ” Id. at ¶
29, citing Am. Fin. Servs. Assn. v. Cleveland, 112 Ohio St.3d 170, 2006-Ohio-6043,
858 N.E.2d 776, ¶ 31. “No real conflict can exist unless the ordinance declares
something to be right which the state law declares to be wrong, or vice versa.”
Village of Struthers v. Sokol, 108 Ohio St. 263, 268, 140 N.E. 519 (1923).
{¶49} Thus, if a trigger activator is essential or integral to the operation of a
firearm, or something without which a firearm cannot fire, then the city cannot
regulate trigger activators. However, if a trigger activator is not essential or integral
to the operation of a firearm, and if a firearm can fire without it, then it is not a
“component” and can be regulated by the city without conflicting with R.C. 9.68.
{¶50} Both experts testified that the only part of a firearm that requires a
background check before someone can purchase it is the “lower receiver.” According
to the city’s expert, James Yurgealitis, the lower receiver is the lower half of the two
pieces that combine and enclose the firing mechanism of an AR-15-type rifle. The
lower receiver encompasses the piece that has the pistol grip attached to it, the
trigger housing, and the magazine well. It is a hollowed-out molded piece of metal
that includes an area in which the trigger protrudes through when the firearm is
completely assembled.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶51} According to the Firearm Plaintiffs’ expert, Jeff Steley, once a person
purchases the lower receiver, he or she can order parts to assemble the new rifle. He
stated that the parts consist of the stock, the barrel, the grip, the sights, and the
trigger mechanism, among others. But, according to his testimony, not all of these
parts are essential for the rifle to fire.
{¶52} Before I further discuss the testimony in the record, I turn to a case
that presents an example of what parts are necessary in order for a rifle to fire:
United States v. Carter, 465 F.3d 658 (6th Cir.2006). In that case, police had
recovered the receiver of a firearm and charged the defendant with illegal possession
of a machine gun and various other parts designed and intended for use in
converting a firearm into a machine gun. The defendant argued that possession of
the receiver alone, without a trigger mechanism, could not constitute possession of a
machine gun. Id. at 663. However, the government expert testified that he was
actually able to fire the receiver without a stock or trigger mechanism. The expert
testified:
* * * because it had an open bolt design, because the firearm will fire
with the bolt slamming forward, I loaded a magazine with all three
cartridges and inserted it into the firearm. Held the rear against my
chest.
Put the magazine in, held it at the magazine port, pulled the bolt back
and released it. Upon releasing it the bolt would go forward
[stripping] a cartridge off out of the magazine into the chamber and it
would fire. Bolt would retract, come back again and fire and fire. It
fired three shots consecutively.
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OHIO FIRST DISTRICT COURT OF APPEALS
Id. at 665. The Sixth Circuit found that the “manual manipulation [of the expert’s
hands on the assembled weapon] constituted a trigger for purposes of the weapon’s
operation.” Id. Thus, the receiver was able to be fired without a stock or a trigger
mechanism. I will agree that this is an extreme example of what parts or
components are actually necessary to fire a rifle, but the defendant certainly
possessed enough components to be convicted in that case.
{¶53} The Firearm Plaintiffs’ expert, Mr. Steley, testified that a stock
prevents movement of a rifle and is used for accuracy. Mr. Steley testified that a
bump stock is considered a “trigger activator” because it is designed to increase the
rate of fire of a semi-automatic rifle. Mr. Steley described how a bump stock
operates: “* * * your finger stays on a little ledge just in front of the trigger, and you
slide the fore-end, the entire rifle from the fore-end forward, in order to actuate the
trigger, and the recoil then operates the bump fire.”
{¶54} With regard to whether a bump stock is an integral or essential part of
a firearm, Mr. Steley was asked:
Q. And what would happen if you had a rifle with a bump stock on
it and you took it off and tried to fire it?
***
A: The gun would still fire, but not shall we say, comfortably or
safely, because it would leave the buffer tube exposed, which is a fairly
thin piece of metal. The actual stock * * * being a bump stock * * *
encompasses the buffer tube actually giving it protection.
Q: If you had a stock that was a bump stock and you removed it,
would the rifle operate as intended?
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OHIO FIRST DISTRICT COURT OF APPEALS
A: It would, but again, not safely, it would cause significant pain to
the shooter.
***
Q: A person can bump fire a rifle without a bump stock, isn’t that
true?
A: That is true, yes.
Q: But the bump stock makes it easier to bump fire.
A: Correct.
***
Q: It makes it safer?
A: Yes.
Q: And it makes bump firing more convenient?
A: Yes.
{¶55} Thus, while it is certainly safer and more comfortable to operate a rifle
with a stock, the Firearm Plaintiffs’ own expert testified that a rifle will fire without a
stock. Thus, a bump stock is not essential or integral to the operation of the rifle
because the rifle would function without it. Based on the Firearm Plaintiffs’ expert
testimony alone, it would seem that a bump stock is a thing of secondary or
subordinate importance, an object or device that is not essential in itself but adds to
the convenience or effectiveness of the rifle. It is a piece of equipment, usually
demountable and replaceable that is added for convenience, comfort, safety or
completeness. Thus, a bump stock is an accessory.1
1 I also note that the most recent guidance from the Federal Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) refers to bump stocks as accessories. See 83 C.F.R. 13442. The
ATF has also published in the Federal Register a final rule purporting to classify “a bump stock-
type device” as a “machinegun,” the ownership of which is prohibited as of March 26, 2019. 83
Fed.Reg. 66514. There are currently numerous court challenges to this regulation.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶56} Both experts agreed that a firearm cannot be fired without a trigger
mechanism. In Carter, 465 F.3d at 665, the court found that the “trigger
mechanism” was the “manual manipulation” of the expert’s hands on the assembled
weapon. The question in this case is whether the trigger activators testified about by
the experts are essential or integral to the operation of a firearm.
{¶57} One such trigger activator is a “trigger crank.” Mr. Steley testified that
a trigger crank is a part that is added to the trigger guard. He stated, “You still have
to have the original trigger or a trigger system in the gun, in order for it to fire.” He
testified that if a trigger crank were integrated into a rifle and you took it away, the
rifle would still operate—it would go back to its semiautomatic mode. Mr. Steley was
asked on cross examination:
Q: So it doesn’t replace the trigger?
A: That’s correct.
Q: You add it on?
A: Yes.
Q: When you add it on, it increases the rate of fire of the firearm?
A: Yes.
{¶58} The city’s expert, Mr. Yurgealitis, testified that once a trigger crank is
attached to a firearm, it is possible to fire the gun without using the trigger crank,
depending on the design. Both experts agreed that the trigger crank is a device that
is attached to the firearm in order to accelerate the cycle of fire beyond that which
you could achieve without the device. Based on the expert testimony, it would seem
that a trigger crank is a thing of secondary or subordinate importance, an object or
device that is not essential in itself but adds to the convenience or effectiveness of the
rifle. It is a piece of equipment, usually demountable and replaceable that is added
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OHIO FIRST DISTRICT COURT OF APPEALS
for convenience, comfort, safety or completeness. Thus, a trigger crank is an
accessory.
{¶59} The experts also testified about binary triggers.2 Mr. Yurgealitis
testified that a binary trigger is a device that, when installed in a semiautomatic rifle,
allows the operator to fire one shot when pulling the trigger towards the rear and a
second shot upon releasing the trigger. He stated that one company makes a rifle
with such a trigger already in it. Otherwise binary trigger devices are sold separately
and must be installed in the rifle.
{¶60} Mr. Steley testified that a binary trigger is a “drop in” part and does
not require “gunsmithing.” He stated, “I can just drop it in myself, two pins and I’m
good to go. The trigger is pulled, the gun is fired, the trigger is released, the gun is
fired again.”
{¶61} Both experts seemed to agree that once installed, a binary trigger is the
only trigger mechanism in the rifle. But it was also clear from the testimony that a
person can have a functioning rifle without a binary trigger. One does not need a
binary trigger in order to fire a rifle. The purpose of a binary trigger is to increase the
rate of fire, i.e., how many rounds per minute the firearm is capable of firing beyond
that which could be achieved with an ordinary trigger mechanism. Thus, a binary
trigger is a device that is demountable and replaceable, and is not essential in itself,
but adds to the effectiveness of the firearm. A binary trigger is an accessory.
{¶62} Other trigger activators were mentioned by the experts during their
testimony, but neither expert discussed exactly how they worked. Nevertheless, both
2 Plaintiff Jordan Telting testified that the only trigger activator he owns is a binary trigger, which
was gifted to him by the Buckeye Firearms Association around the time this lawsuit was filed. At
the time of his deposition, Mr. Telting claimed that the binary trigger was not attached to his
firearm and he, in fact, had never seen it in person. Because he did not want to be in violation of
the law, someone else was holding it for him.
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OHIO FIRST DISTRICT COURT OF APPEALS
experts agreed that all of these trigger activators increase the rate of fire of a semi-
automatic rifle.
{¶63} The key to determining whether a trigger activator is a “component”
has nothing to do with whether it affects the use and function of a firearm once it is
attached. The key is whether a trigger activator is necessary for a firearm to fire.
Without a trigger mechanism, a firearm would be useless. But, while a trigger
mechanism is necessary for a firearm to fire, a trigger activator is not.
{¶64} In District of Columbia v. Heller, 554 U.S. 570, 630, 128 S.Ct. 2783,
171 L.Ed.2d 637 (2008), the Supreme Court held that “the requirement that any
lawful firearm in the home be disassembled or bound by a trigger lock makes it
impossible for citizens to use arms for the core lawful purpose of self-defense and is
hence unconstitutional.” Recently, in a two to one decision striking down
California’s ban on large capacity magazines, the Ninth Circuit stated that one of the
key takeaways from Heller is that a law “cannot permissibly ban a protected firearm’s
components that are critical to its operation.” (Emphasis added.) Duncan v.
Becerra, 970 F.3d 1133, 1146 (9th Cir.2020), citing Heller at 630. Thus, I believe
that by using the word “component” in R.C. 9.68, the General Assembly was
ensuring that municipalities cannot outlaw parts of a firearm critical to its operation.
Allowing municipalities to outlaw firearm “components” would render the right to
bear arms meaningless.
{¶65} Certainly neither party disputes that United States citizens are
prohibited from owning or possessing a fully automatic weapon, i.e., a machine gun.
The Supreme Court has emphasized that “the right to keep and bear arms is not ‘a
right to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.’ ” McDonald v. City of Chicago, Ill., 561 U.S. 742, 786, 130 S.Ct.
25OHIO FIRST DISTRICT COURT OF APPEALS
3020, 177 L.Ed.2d 894 (2010), citing Heller at 626. Heller made clear that “the right
secured by the Second Amendment is not unlimited” and certain gun restrictions are
constitutional. Heller at 626 (“[a]lthough we do not undertake an exhaustive
historical analysis today of the full scope of the Second Amendment, nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms.”).
{¶66} Any citizen in Cincinnati is permitted to own and possess a
semiautomatic firearm with a trigger mechanism and a regular stock. Ordinance 91-
2018 prohibits citizens of Cincinnati from owning or possessing a “trigger activator,”
which accelerates the rate of fire of the firearm to approximate an automatic weapon.
Because Ordinance 91-2018’s ban of trigger activators does not ban firearm
“components,” I would hold that it does not conflict with R.C. 9.68 and the city did
not exceed its home-rule authority in enacting it. Accordingly, I respectfully dissent
as to that issue.
Please note:
The court has recorded its own entry this date.
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