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Court News Ohio
Court News Ohio

Marsy’s Law Allows Victim to Challenge Order Granting Former Spouse’s Gun Rights

A Warren County judge wrongfully restored the gun possession rights of a man convicted of misdemeanor domestic violence, the Ohio Supreme Court ruled today. The Supreme Court ruled the victim, the man’s ex-wife, could invoke Marsy’s Law to block the judge’s ruling.

In a 4-3 decision, the Court ruled that Warren County Common Pleas Court Judge Robert Peeler was not authorized by state law to grant Roy Ewing’s petition for relief from his federal firearms restriction.

Jamie Suwalski, Ewing’s ex-wife and victim of Ewing’s domestic violence offense, contested Judge Peeler’s decision by seeking a writ of prohibition from the Twelfth District Court of Appeals. Ewing appealed the Twelfth District’s decision in favor of Suwalski to the Supreme Court. Judge Peeler did not appeal the decision or participate in the case.

Writing for the Court majority, Chief Justice Maureen O’Connor wrote that under Marsy’s Law and the specific circumstances of this case “a writ of prohibition was the appropriate way” to address the matter.

Justices Michael P. Donnelly, Melody J. Stewart, and Jennifer Brunner joined the chief justice’s opinion.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that Marsy’s Law did not provide Suwalski the right to challenge Judge Peeler’s orders. The dissent also stated that Suwalski had an adequate remedy to intervene in the trial court’s action on her ex-husband’s petition request.

Justices Patrick F. Fischer and R. Patrick DeWine joined Justice Kennedy’s opinion.

Relief from Federal Firearms Disability Sought
In April 2017, Ewing was convicted in Warren County of domestic violence and violating a protective order, both misdemeanors that arose from assaulting Suwalski. He was sentenced to 20 days in jail with 10 days suspended, fined, and placed on one year of probation.

The conviction triggered a federal firearm restriction under the Gun Control Act. Under 18 U.S.C. 922(g)(9), the law prohibits anyone convicted of misdemeanor domestic violence from possessing, receiving, or transporting a firearm. But the law provides four circumstances in which the restriction does not apply. One of those provisions applies to a person who “has been pardoned or has had civil rights restored” if the law of the state in which the person lives “provides for the loss of civil rights” for a violation of the offense.

R.C. 2923.14 is the Ohio law that allows any person who is prohibited from having a firearm to apply to the common pleas court “for relief of such prohibition.” The common pleas court can grant the application if the person has been “fully discharged” of their conviction, has led a law-abiding life since discharge, and is not otherwise prohibited from having a firearm.

In February 2019, Ewing applied for relief under R.C. 2923.14 seeking to lift the restriction imposed under 18 U.S.C. 922(g)(9). The county prosecutor’s office did not contest the trial court’s authority to grant the petition and stipulated that the state law allowed for the court to grant relief from a federal firearm restriction imposed for a misdemeanor domestic-violence conviction.

Victim Challenges Judge’s Order
The prosecutor submitted Suwalski’s statement to the court opposing Ewing’s request for relief from the federal firearms disability, but did not call her as a witness at a hearing on Ewing’s application. Judge Peeler ordered that Ewing be “restored to all civil firearm rights to the extent enjoyed by any citizen.” The state did not appeal his ruling.

Suwalski sought a writ of prohibition from the Twelfth District, alleging that Judge Peeler did not have jurisdiction to relieve Ewing of his federal restriction and that the court order violated her rights as a crime victim under Marsy’s Law. She maintained she had the right to petition the appeals court under Article I, Section 10a(B), which was added to the Ohio Constitution when voters approved Marsy’s Law in 2017.

The Twelfth District allowed Ewing to intervene in the case to contest Suwalski’s actions. The Twelfth District ruled Judge Peeler lacked judicial power under Ohio law to relieve Ewing of the federal restriction and granted the writ.

Ewing appealed the decision to the Ohio Supreme Court, which was required to consider the case.

Supreme Court Analyzed Right to Appeal
Chief Justice O’Connor explained that Marsy’s Law took effect in February 2018 and contained 10 victims’ rights. The opinion cited two of the rights invoked by Suwalski — the right “to be treated with fairness and respect for the victim’s safety, dignity, and privacy” and “to reasonable protection from the accused or any person acting on behalf of the accused.” The constitution also states that a victim can petition the appropriate court of appeals for any denied relief in “any proceeding involving a criminal offense” against the victim or “in which the victim’s rights are implicated.”

Ewing challenged whether Suwalski could invoke Marsy’s Law because, he argued, relief from his federal firearms disability does not implicate any of the 10 victims’ rights stated in the constitution.

The Court rejected his claim, finding the firearms disability is based on his criminal conviction and the application for relief under R.C. 2923.14 that Ewing filed involves a “criminal offense,” which Suwalski cited as a right to petition the appeals court.

Common Pleas Court Without Power to Grant Application
The majority opinion ruled that Suwalski met the requirements to secure a writ of prohibition, including the requirement that Judge Peeler had exercised a power that was unauthorized by law.

The Court noted the federal law empowers a state to remove a federal firearms restriction when the state law allows for restoration of gun rights only if a state law “provides for the loss of civil rights.” The Court wrote that the trial court’s ruling ignores the qualification that gun rights can only be “restored” if a state law has taken away a person’s civil rights. Ewing never lost his civil rights under Ohio law, the Court stated.

“As a matter of federal law, Ewing was ineligible to have his firearms rights restored because he never lost those rights under Ohio law,” the opinion stated. Ewing remains under the federal firearms restriction, and Judge Peeler’s grant of Ewing’s application was unauthorized, the Court concluded.

Ex-Wife Did Not Qualify for Writ, Dissent Stated
Justice Kennedy’s dissenting opinion explained that Suwalski had failed to demonstrate that Judge Peeler had violated any rights of crime victims enumerated in Marsy’s Law.

Suwalski had asserted that Marsy’s Law grants victims of crime “constitutional rights to safety and protection.” However, the dissent noted that Marsy’s Law provided crime victims the rights “to be treated with fairness and respect for the victim’s safety, dignity and privacy” and “to reasonable protection from the accused or any person acting on behalf of the accused.”

In this case, Suwalski did not claim she was denied treatment with fairness and respect, the dissent noted. Moreover, the language of Marsy’s Law distinguishes between an accused and a person who has been convicted of a crime. Its plain language grants a victim of crime the right to reasonable protection from the accused during the criminal proceeding, but does not provide the same right to protection after the criminal proceeding has concluded. Ewing is not “accused” of any crime, the dissent explained, and therefore Marsy’s Law did not afford Suwalski a constitutional right to be protected from him.

Justice Kennedy also noted that because Judge Peeler lacked authority to remove Ewing’s federal firearm disability, Suwalski was not injured by his order. Suwalski therefore had not established that she was entitled to a writ of prohibition, the dissent concluded.

2020-0755.State ex rel. Suwalski v. Peeler, Slip Opinion No. 2021-Ohio-4061.

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