Yvonne M. Watson
Attorney at Law
630 Mill Wood Blvd.
Marysville, OH 43040
Phone: (614) 408-8198/(937) 644-9417
Fax: (614) 408-8201
September 15, 2008
Tim Aslaner, City Law Director
Coleman, Eufinger & Aslaner Law Offices
110 S. Court Street
Marysville, OH 43040-1545
Dear Mr. Aslaner,
During XXXXX's Suppression Hearing on Thursday, September 11, 2008 you made a statement of law to the Court that owning a fully automatic assault weapon is a crime in the State of Ohio. Further, Officer Diehl also testified that owning a fully automatic assault weapon is a crime in the State of Ohio. Both your statement and Officer Diehl’s statement to the court regarding the legality of possessing fully automatic assault weapons in the State of Ohio were false statements of law to the tribunal of the Marysville Municipal Court. On Friday, when I telephoned you to find out what Code Section you based your statement of law on, you informed me that you had based your statement on ORC 2923.17.
Because I had knowledge from research that fully automatic weapons were not illegal in the State of Ohio when I called you on Friday, I called because I wanted to know on what law you were basing your opinion regarding the legality of the possession of fully automatic weapons. After calling you and double checking my understanding of the laws regarding fully automatic assault weapons in part through examining the Code you cited, it is clear that such weapons are not illegal in the State of Ohio. Apparently you had a lack of knowledge or lack of thoroughness that you should have had in preparing your case, because the Code Section you were relying on does not say that fully automatic assault weapons are entirely illegal in the State of Ohio. ORC 2923.17 merely states that such weapons, when they are not registered, are illegal. Specifically, 2923.17 C (5) exempts from the law forbidding the possession of a dangerous ordnance any owner of a dangerous ordnance registered in the National Firearms Registration and Transfer Record, pursuant to 26 U.S.C. 5841.
26 U.S.C. 5841 can be found under Chapter 53 of Title 26. That Chapter is entitled “Machine Guns, Destructive Devices, and Certain Other Firearms”. “Machine Gun” is defined under 26 U.S.C 5845: “The term “Machine Gun” means any weapon that shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”
Further, the term “Assault Weapon” is not the correct term for a fully automatic weapon. Under law that was previously in effect, but is no longer in effect, having expired on September 13, 2004 (Federal Assault Weapons Ban), “Assault Weapon” was specifically defined as “a semi-automatic firearm,” i.e., not a fully automatic firearm.
26 U.S.C. 5841 dictates that machine guns (fully automatic firearms) must be registered with the Secretary. Each fully automatic firearm must be so registered in the National Firearms Registration and Transfer Record (NFR) by the manufacturer, importer, maker or transferor of the weapon. Everyone who transfers an automatic firearm is responsible for obtaining authorization to transfer the weapon, which affects the registration of the firearm, moving it to the new owner. The only other restriction on fully automatic firearms is that the weapon has to have been initially registered in the National Database by May 19, 1986 pursuant to the Hughes Amendment of the Gun Control Act of 1968. Any fully automatic firearm made and registered on or before that date can be legally transferred and owned by civilians. There are hundreds of thousands of such properly registered weapons in the United States today. These weapons are easily found for sale on the Web. At one such weapons broker site, there were 7 or 8 fully automatic weapons for sale that I found in my research. There are many such Web sites, and in the brick-and-mortar world, right here in central Ohio we have “Dave’s World” that actually specializes in obtaining and transferring NFR weapons.
Any police officer with Advanced Weapons training, as Officer Diehl testified to having completed, or any prosecutor involved in prosecuting crimes, supposed or real, where ORC 2923.17 and its application would be law that the outcome of the case is either partly or entirely based on, as it was in XXXXX's case, ought to have been properly and thoroughly prepared as to what the law actually says such that they would not make a false statement of law to a tribunal, such as the Marysville Municipal Court.
After having called you to obtain the Code Section that you were relying on, and after thoroughly double-checking my understanding of the code, I called your office to inform you that possessing fully automatic firearms is legal in the State of Ohio, and gave you the opportunity to correct your false statement of law to the Court. I asked your office to have you call me regarding what you were going to do regarding the false statement of law, and received no response from you. I am now writing to you to make the request formally that you correct the false statement of law and to request you to inform me as to how you are going to correct the false statement of law you made to the Court and the false testimony Officer Diehl offered to the Court. By doing so, I am making the assumption that you did not know the law before going into Court, despite the fact that the Rules of Professional Conduct say that you should have been fully prepared and that such preparation would definitely include knowing the law you were relying on in support of your case.
On a related note, I want to let you know that there are other matters of law and fact at issue in this case that are much more serious than this particular one that I will present to you having discovered them since Thursday but which I am still developing which will concern your responsibility to have candor with the tribunal under the Rules of Professional Conduct.
Please let me know by September 17, 2008 what you intend to do or not do regarding this false statement of law made to the Court, so that I may know what my next responsibilities under the Rules are if anything.
Yvonne M. Watson
Attorney at Law