Mr. Philpotts was convicted in Cuyahoga County of “having weapons while under disability” under Ohio Rev. Code 2923.13(A)(2). This state statute makes it a third degree felony to possess certain weapons, including guns, while under indictment for certain crimes, including violent crimes and drug crimes. Here, Mr. Philpotts was convicted because he retained ownership of his otherwise-lawful gun while he was under indictment for a different crime and displayed pictures of himself on social media with the gun.

Although the state dropped the underlying charges with which it had originally indicted Mr. Philpotts, the state then charged and convicted him of the gun possession. Mr. Philpotts appealed this conviction, arguing that to criminalize the possession of an otherwise-legal firearm based solely on indictment status is a facial violation of the Second Amendment right to bear arms. Mr. Philpotts also argued that the weapons statute violates his constitutional right to procedural due process, because it criminalizes weapons possession automatically, without a hearing or opportunity to object. The Eighth District Court of Appeals upheld the conviction, and the Ohio Supreme Court accepted jurisdiction over Mr. Philpotts’ appeal as to both issues.

Legal Theory

The “under indictment” language from Ohio Rev. Code 2923.13(A)(2) and (A)(3) operates to exacerbate the overcriminalization and incarceration of Black Ohioans. These provisions are facially unconstitutional because they lack basic procedural due process measures that the constitution demands for criminal statutes.

Date filed

April 1, 2021