Cleveland-Area Prosecutors Fight to Disarm Those Accused But Not Convicted of Crimes

The Supreme Court ruled in the Rahimi case last year that those subject to a domestic violence restraining order can be at least temporarily deprived of their Second Amendment rights, holding that “when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.” That decision, however, said nothing about a blanket policy of prohibiting anyone accused of a violent felony from possessing a firearm. 

Now the Ohio Supreme Court may soon wrestle with that question after an appellate court recently ruled that a man charged with possessing a weapon “under disability” should not have faced prosecution, and that the Ohio statute in question conflicts with the right to  keep and bear arms. Prosecutors in Cuyahoga County are appealing that decision to the state’s highest court, setting up a fight over what exactly can lead to a fundamental right being stripped away, even temporarily. 

We first covered the case of Delvonte Philpotts earlier this month, when a columnist for the Cleveland Plain Dealer expressed his outrage over the appellate court’s decision. Philpotts had been charged with rape when he posted a picture of himself holding a gun to social media, which led to the additional charge of possessing weapons under disability. The rape charge was ultimately thrown out, but prosecutors still went after Philpotts for illegally possessing a firearm. Both a trial judge and the 8th Ohio District Court of Appeals agreed with Philpott’s attorney that the charge is unconstitutional, but now prosecutors are hoping that the Ohio Supreme Court will overturn those decisions and allow the law to be enforced in Cuyahoga County. 

In June 2024, Common Pleas Judge Deborah Turner threw out Philpotts’ weapons conviction in a 10-page opinion. In it, she found prosecutors failed to show historical precedent of those under indictment being prohibited from having firearms.

After the 8th District upheld Turner’s ruling, Lexi Bauer, a spokeswoman for the county prosecutor’s office, expressed strong disagreement and called the decision “bizarre.”

“This decision has given a green light for indicted felons to possess weapons throughout our county,” Bauer said Monday. “Similar defendants in the 87 other counties in Ohio continue to be disarmed.”

The county public defender’s office, meanwhile, agreed with the ruling.

“What they (prosecutors) are really asking is — let’s indefinitely pause the precedential effect of the 8th District’s decision,” Robert McCaleb, an assistant public defender and Philpotts’ attorney, told cleveland.com and The Plain Dealer.

“That is an option, and certainly Supreme Court rules permit stays to be requested, but it’s for those situations where there’s some grave harm that is not just speculative but that is articulable and real.”

McCaleb says prosecutors can always request a defendant be disarmed as a condition of their bond, or ask that they be held in custody until trial because they pose a threat to individuals or the community at large, but a blanket policy that imposes a prohibition on gun ownership simply because they’re accused of committing a violent felony offense is too broad to withstand constitutional scrutiny. 

The prosecutors’ motion, which criticizes the 8th District’s ruling as “wrong” and “destabilizing,” says a stay is necessary to prevent regional disparities in the application of state law. It says at least one local defense attorney has already cited the Philpotts decision in a motion to dismiss weapons charges.

McCaleb, in his response to prosecutors filed Thursday, argued a stay would harm the Second Amendment rights of Ohioans and pushed back against criticism of the 8th District’s decision. 

“Merely being charged with a crime does not remove one from the political community constituting ‘the People’ or make one’s constitutional rights automatically forfeit,” the motion argues.

If the Ohio Supreme Court ends up granting the prosecution’s request to weigh in, Ohio’s “weapons under disability” statute could be declared null and void in every one of the state’s 88 counties. That would be the right course of action for the court to take, because McCaleb is absolutely correct that being accused of a crime doesn’t mean that someone’s no longer a part of “the people” who possess the right to keep and bear arms. Heck, some federal courts like the Third Circuit Court of Appeals have concluded that being convicted of some crimes punishable by more than a year in prison shouldn’t result in a lifetime loss of Second Amendment rights. 

The Supreme Court has indicated that, at a minimum, there needs to be a judicial determination that someone poses a danger to themselves or others before they can be temporarily deprived of their Second Amendment rights. Ohio’s weapons under disabillity law doesn’t afford defendants facing violent felony charges the opportunity to demonstrate they don’t pose a danger, or even allow a judge to make that determination. It’s a one-size-fits-all policy that can result in legal absurdities like Philpott’s case, where the underlying felony charge was dismissed, but the prospect of prison time still remains. 

I have no idea what kind of guy Delvonte Philpotts is, or whether a judge would have determined that he posed such a threat to the community that he shouldn’t have been allowed to keep ahold of his guns while facing a felony rape charge. It’s quite possible that if that question had been asked Philpott still would have ended up prohibition from possessing a pistol. The problem is that Ohio doesn’t allow for that line of questioning or an individualized finding of dangerousness, and as the lower courts have already determined that puts the state’s weapon under disability law at odds with our fundamental right to keep and bear arms.