The measure, known as the Second Amendment Preservation Act, awaits a House vote, which could come as soon as this week. It was scheduled to be heard on the floor last Wednesday, but leadership held off on a vote.
At its core, H.B. 51 is a message to the federal government that Ohio’s state and local police departments will not be used to enforce federal gun restrictions.
If it were to go into effect, all Ohio law enforcement would be blocked from “enforcing, attempting to enforce, or participating in any way in the enforcement” of any federal firearm regulations; local police departments couldn’t employ any ex-federal agents who once enforced gun regulations; and departments would be subject to a $50,000 fine, plus legal fees, for each violation of the law.
However, local police departments and federal agencies often work together on drug, human trafficking and gang violence task forces that can often result in federal gun charges. To address this, H.B. 51 allows for local and federal coordination in cases where federal gun crimes are “ancillary,” or secondary, to the original offense.
Lou Tobin, director of the Ohio Prosecuting Attorneys Association, told this news organization that the ancillary exception won’t do enough to protect Ohio’s law enforcement. He said the bill’s broad prohibitions and steep punitive measures would force Ohio’s prosecutors to advise their law enforcement agencies to no longer assist federal agents in task forces and certain investigations.
“What we can and can’t do (under H.B. 51) is still just unclear,” said Tobin. “It’s going to have a chilling effect on all of this voluntary cooperation that goes on.”
Tobin believes that H.B. 51 would serve as a new vehicle for lawsuits to be levied against law enforcement in situations where local police helped provide information that led to a federal gun indictment. H.B. 51 would force departments to prove that those gun indictments were indeed ancillary to the original offense, which could be costly. Losing the case would result in a $50,000 fine.
Tobin told this news organization that law would likely dissuade local police from participating in investigations similar to the one underway after the Beavercreek shooting, where local law enforcement and the FBI are working together.
Part of that investigation includes whether the gunman lied on a federal background check form when he purchased the gun a few days prior.
Bill backers respond
Republican lawmakers who oversaw, tweaked and approved the bill in the House Government Oversight Committee said Tobin’s concerns are unfounded.
“Local law enforcement, if House Bill 51 was in effect, could absolutely, without a doubt participate in that investigation,” said Rep. D.J. Swearingen, R-Huron, a practicing attorney. “...Because the bill allows for cooperation, material aid and support when there’s any type of underlying crime that’s not solely a gun control regulation, they’d be able to work together in this case.”
Rep. Bill Seitz, R-Cincinnati, who voted the bill out of committee, said he sees no problem whatsoever with local police aiding such an investigation under H.B. 51.
However, prosecutors remain unconvinced that the ancillary exception goes far enough to protect local law enforcement.
“I know that’s their interpretation of it and that and that is one (valid) interpretation. But the problem is that I think my interpretation is a viable interpretation too,” Tobin said. “The issue for us is that because it’s not clear, we’ve got to risk this lawsuit. (In order) to tell local law enforcement that they can cooperate, we’ve got to risk this lawsuit, and we just don’t know. And so the prosecutors’ advice is going to have to be just to err on the side of caution.”
Swearingen agreed that H.B. 51 could allow more lawsuits to be brought against local police, but he suggested that the only suits that would stick are the ones challenging police departments that actually did what the law intends to prohibit, which is primarily target someone for violating federal gun laws.
Former Dayton chief: Cooperation vital
Richard Biehl, who was Dayton’s police in the aftermath of the Oregon District mass shooting, said Dayton worked closely with federal law enforcement in investigating the shooting.
Ultimately, a friend of the Oregon District shooter who purchased parts of the weapon used in the shooting was convicted on federal charges of lying on a federal firearms form and possessing weapons as a drug user.
Biehl said unfettered communication with federal law enforcement is “vital in certainly these kinds of investigations, of a mass shooting, but certainly other kinds of investigation.”
This includes joint task forces aimed at addressing gun trafficking, drug trafficking and human trafficking.
“That cooperation with federal law enforcement across a whole range of criminal violations is huge,” he said, calling any proposal to limit it “asinine.”