Ohio Code § 9.86 recognizes that the right to keep and bear arms is a “fundamental individual right that predates the United States Constitution and Ohio Constitution,” and as such, is “a constitutionally protected right in every part of Ohio.” The United States Supreme Court addressed the origins of the rights to keep and bear arms in D.C. v. Heller, 554 U.S. 570 (2008). The Court explained that the right to keep and bear firearms for “traditionally lawful purposes” was codified to protect man’s natural right of self-preservation. The use of firearms for self-preservation, hunting, and lawful sporting activities, therefore, is constitutionally protected in the United States and Ohio.
The right to keep and bear arms is diminished, however, when firearms are carried and/or used for an “unlawful or unjustifiable purpose.” Unlawful uses include distributing the public peace, unlawfully causing bodily injury or death, or recklessly endangering the person or property of another. Every state is constitutionally permitted to regulate the right to keep, carry, and actually use firearms to prevent and punish unlawful activity. Valid firearms prohibitions include banning firearms-related activities and weapons that do not traditionally serve a law-abiding purpose. The prohibition on owning sawed-off shotguns, the civilian use of military-grade weaponry, and the reckless discharge of firearms are prohibited.
Ohio bans the actual discharge of firearms into certain locations and/or onto certain properties without lawful cause. The unlawful discharge of a weapon that results in bodily injury or death may be prosecuted as murder, but discharge doesn’t have to cause harm to be illegal. If a weapon is discharged in a prohibited area and the discharge was not “justifiable,” then firearms owners are subject to prosecution for misdemeanor or felony charges.
Ohio Information Center for Improperly Discharging a Firearm
The Joslyn Law Firm’s Ohio Information Center for Improperly Discharging a Firearm addresses the scope, penalties, and defenses to criminal charges levied under Ohio Code § 2923.161 and § 2923.162 for unlawfully discharging a firearm. Questions concerning the unlawful discharge of a firearm on Ohio’s waterways should be directed to our Ohio Information Center for Firearm Prohibitions on Watercraft and Waterways, and Ohio’s general prohibitions on firearms use, including discharge, are addressed by the Information Center for Having Weapons While Under Disability in Ohio. If you’ve been charged with a federal or state firearms discharge offense, schedule your free, no-obligation Ohio firearms defense consultation with the Joslyn Law Firm’s top-rated Columbus criminal defense lawyers by calling 614-444-1900 or contacting us online today.
- Prohibitions on the Knowing Discharge of a Firearm into an Occupied Dwelling or School Zone (Ohio Code § 2923.161)
- Prohibitions on Discharging a Firearm on or near a Prohibited Premise (Ohio Code § 2923.162)
- The Criminal Intent Necessary for Improperly Discharging Firearms Convictions
- Exceptions and Defenses to Criminal Charges for Knowingly Discharging a Firearm into an Occupied Dwelling, School Zone, or onto a Prohibited Premise
- Direct Penalties for Unlawful Discharge Convictions Under Ohio Code § 2923.161 and § 2923.162
- Collateral Penalties and Potential Loss of Firearms Rights for Unlawful Discharge Convictions
1. Prohibitions on the Knowing Discharge of a Firearm into an Occupied Dwelling or School Zone (Ohio Code § 2923.161)
Ohio Code § 2923.161 prohibits any unprivileged person from “knowingly” discharging a firearm:
- At or into an “occupied structure” that acts as a habitation, i.e., a home, apartment building, hotel room, car, train, aircraft, boat, trailer, or tent, even if the occupant is not present
- At, in, or into a school safety zone
- Within 1000 feet of any school zone, school building, or school premises with the intent to (1) cause physical harm to someone on school property, (2) cause panic or fear to someone on school property, or (3) cause the evacuation of the school or a school function
Anyone found guilty of violating Ohio Code § 2923.161 is guilty of a felony in the second degree, even if no one is harmed. The only actus reus – the criminal act – necessary for conviction is the discharge of the firearm.
2. Prohibitions on Discharging a Firearm on or near a Prohibited Premise (Ohio Code § 2923.162)
No person, without lawful permission, may discharge a firearm:
- Upon, over, or within 100 yards of a cemetery (does not apply if you own the land and/or cemetery)
- On a lawn, park, playground, orchard, or any other ground abutting a school, church, inhabited dwelling, the property of another, or property of a charitable institution (does not apply if you own the land)
- Upon or over a public road or highway
Discharging a weapon on your property is still punishable if the propellant travels onto a prohibited premise. Intent to fire on the prohibited premise isn’t necessary. It is enough to cause a discharge that thereafter travels into a prohibited zone. If the propellant creates a substantial risk of physical harm or causes physical harm to a person or another’s property, this is a felony-level offense.
3. The Criminal Intent Necessary for Improperly Discharging Firearms Convictions
The mens rea – criminal intent – necessary to sustain a conviction under § 2923.162 is general while the intent necessary under § 2923.161 is specific. Under § 2923.162, prosecutors only need to prove the accused caused the discharge. Intent to harm another or intent to discharge onto a prohibited premise is not necessary. Charges under § 2923.161, however, require “knowing” and/or “intentional” conduct, i.e., pulling the trigger. Truly accidental discharge is not punishable under § 2923.161, Ohio courts narrowly interpret the term “accident.”
In State v. Fogler, the Ohio Court of Appeals affirmed a conviction for unlawful discharge under Ohio Code § 2923.161 when the defendant loaded, cocked, and aimed a shotgun at an apartment door before it accidentally fired into the home. The defendant argued that the discharge was accidental, not knowing, but the Court found that “a person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result.” Because the defendant knowingly loaded, chocked, and aimed the shotgun at a dwelling, he knew his conduct could reasonably result in the discharge of that firearm into a home.
It’s less clear whether the accused must also know he or she is discharging a weapon in or onto a prohibited area under Ohio Code § 2923.161. For example, a hunter who unknowingly fires at a deer on the outskirts of a rural school zone might be acquitted of § 2923.161 charges but not § 2923.162 charges. The standard quoted in State v. Fogler is likely applicable to this analysis. If the defendant was aware, or had reason to know, he was near a school zone or an occupied structure and the discharge might travel onto that property, he is likely chargeable under Ohio Code § 2923.161.
The criminal intent necessary under § 2923.161(A)(3), when the discharge is within 1000 feet of a school zone, is more specific. Prosecutors must prove the accused actually intended to cause physical harm, panic, or evacuation of persons specifically on the school premises in addition to the “knowing” discharge standard. It’s not enough that the defendant knew panic was possible if he discharged his firearm within 1000 feet of a school zone. He must actually intend to cause panic.
4. Exceptions and Defenses to Criminal Charges for Knowingly Discharging a Firearm into an Occupied Dwelling, School Zone, or onto a Prohibited Premise
Ohio prosecutors must prove each element of a discharge offense beyond a reasonable doubt. Experienced Ohio criminal defense attorneys will strategically defend against an unlawful discharge offense by:
- Arguing the statute is not applicable to the accused, i.e., the accused was a police officer or the structure did not qualify as an “occupied dwelling”
- Presenting evidence that raises a reasonable doubt as to a necessary element such as the required mens rea or actus reus
- Raising any available common law defenses such as insanity, self-defense, or necessity
In addition to the specific criminal intent necessary under Ohio Code § 2923.161, the discharge must be “without privilege.” The statute exempts federal and state agents, employees, and law enforcement officers provided the discharge occurs within the scope of their lawful duties. A school security guard firing at school shooting suspect is not punishable under this section.
However, a local businessman who discharges his weapon at the suspect before police arrive may or may not have been “privileged” to act under the circumstances. An experienced Ohio firearms discharge defense attorney may argue that:
- the businessman was “privileged” to act in defense of the students, and as such, does not qualify under the statute’s provisions
- he did not “intend” to cause harm, panic, or evacuation of the school, only to defend the students
- and/or he can raise the affirmative defense of protecting third-persons from harm or death
Under § 2923.162, it is a defense to prosecution that the accused had permission to discharge the weapon from “proper officials.” Proper officials may include property owners, law enforcement, or government bodies, depending on the otherwise prohibited area of discharge.
In the absence of any procedural or statutory defenses, the following common law defenses may be available to defeat improper firearms discharge convictions:
- Insanity: A degraded mental state may prevent the accused from knowing and understanding the nature of his actions. He may believe he’s discharging fireworks or simply not be capable of understanding the illegality and nature of his actions. Mental illness and insanity are not the same. Someone mentally ill may still intend to hurt others in violation of the law. Someone “legally insane” simply can’t form the necessary criminal intent and/or control his physical actions.
- Self-Defense/Defense of a Third Person: If discharge was necessary to prevent an immediate death or serious bodily injury to yourself of another, you’re likely entitled to raise these defenses. The threat must be “imminent” and serious, especially if being used to justify the discharge of a weapon in a school zone.
- Necessity: Applicable if discharging the weapon was necessary to prevent a “greater harm” to a person or property. Because the anticipated harm associated with the unlawful discharge of a weapon in a school zone is injury or death to children, necessity is rarely appropriate. The only justification for discharging a weapon is typically preventing death or serious injury.
- Mistake of Fact: Applicable if you believed discharge was necessary for self-defense, and a reasonable person would have believed the same even though you misread the situation. For example, it appears an intruder is harming a neighbor, but they’re simply wrestling.
An experienced Ohio firearms discharge defense attorney will review the facts of each individual case to determine the best defensive strategy to the charges.
5. Direct Penalties for Unlawful Discharge Convictions Under Ohio Code § 2923.161 and § 2923.162
Anyone convicted of improperly discharging a firearm under Ohio Code § 2923.161 is guilty of a felony in the second degree. He/she must serve a mandatory minimum sentence of at least two years with a maximum sentence to be determined by the facts of the case. The penalties for a second-degree felony increase if the offender is convicted of additional felony offenses such as possessing a weapon while under a disability, manslaughter, or terrorism. Second-degree felonies are also punishable by a fine of not more than $15,000 in addition to any restitution ordered.
The penalties for discharging a firearm on or near prohibited premises under § 2923.162 depend on the section violated. Discharging a firearm at a cemetery or near a prohibited area is punishable as a misdemeanor of the fourth degree. Fourth-degree misdemeanor offenses are punishable by no more than 30 days in prison and/or a fine up to $250. The crime of discharging a firearm over a public roadway is punishable as a first-degree misdemeanor with not more than six months in prison and/or a fine up to $1000.
If a violation of § 2923.162(A)(3) prohibiting discharge over public roadways creates a serious risk of physical harm or causes serious damage to property, it is a felony in the third degree. Felonies in the third degree are punishable anywhere from nine months to three years of imprisonment and/or a fine of not more than $10,000. If the (A)(3) violation causes even minor physical harm to another, it is punishable as a felony in the second degree. Any serious physical harm caused by a violation of (A)(3), including death, disfigurement, or loss of certain bodily functions, is punishable as a felony in the first degree. First-degree felonies are the most serious offenses in Ohio and are punishable by not less than three years to life imprisonment and/or a fine up to $20,000.
6. Collateral Penalties and Potential Loss of Firearms Rights for Unlawful Discharge Convictions
In addition to the direct penalties, an experienced Ohio criminal defense attorney will warn offenders of the potential collateral consequences of a criminal conviction. Judges may, and often must, require offenders to:
- pay restitution to any victims, i.e., medical bills, property damage, funeral costs
- pay the costs of the investigation and prosecution
- serve probation
- attend alcohol or drug rehabilitation
- surrender their firearms
- participate in community service
Judges have considerable discretion during firearms discharge sentencings, and it’s essential to avoid serious Ohio felony charges. Those convicted of a felony-level offense may suffer additional collateral consequences, including:
- deportation and/or travel bans
- inability to own or use firearms (for violent felons)
- temporary loss of voting rights
- loss of certain government benefits
- loss of a job and/or inability to obtain meaningful employment
- difficulty attending college and/or receiving financial aid
- loss of child custody and visitation rights
- dishonorable discharge from the military
Always retain a qualified Ohio criminal defense attorney for improper firearms discharge offenses before speaking with police or prosecutors. Few, if any, criminal offenses in Ohio carry such a broad range of penalties depending on the facts, circumstances, and defenses raised in each case. The Joslyn Law Firm’s top-rated Columbus criminal firearms discharge lawyers are available 24/7 for a free, no-obligation criminal defense consultation at 614-444-1900 or online.