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Cover Story: Armed and Next to Us

Legalization has made concealed weapons part of everyday life

By Ben L. Kaufman · April 6th, 2005 · Cover Story
Armed and Next To Us
Sean Hughes

Armed and Next To Us

Patrick Feely never let on that he was a genuine, if modest, celebrity. Classmates remember soft-spoken Feely mainly for his booming, concussive .50-caliber Smith & Wesson Magnum revolver, the most powerful production revolver made today.

He let others fire it after we'd qualified with lesser weapons during our class for Ohio's new license to carry a concealed handgun.

In a sense, Feely, 34, was why we all were there, although we didn't know it until the weekend class was over. He was the pizza deliveryman whose 1999 arrest for carrying a concealed weapon led to legislation creating Ohio's first concealed handgun license (CHL).

Despite the emotional roller coaster of his prosecution and civil suit, which went all the way up to the Ohio Supreme Court, he said, "I feel good knowing that I played some part in it."

Friday marks one year since the law became effective, and licenses have been issued to more than 45,000 Ohioans. About 1 percent of all applications have been rejected and far fewer have been suspended or revoked.

Neither proponents nor critics knew of anyone with an Ohio license being convicted of using a handgun in a crime. The argument remains unresolved locally and nationally whether legally concealed weapons promote or reduce crime or contribute to what are recorded as accidental shootings.

"People with a conceal/carry license are the good guys," said William Gustavson, Feely's civil attorney and a former Cincinnati City Solicitor.

Not all of them, cautions Toby Hoover of the Ohio Coalition Against Gun Violence, citing reports and studies from states with longer CHL experience.

Even so, Ohio's new CHL hasn't loosed a fusillade. Instead, shootings and armed robberies continue to involve handguns -- often stolen, often carried in cars -- in the hands of street punks, spouses and coworkers least likely to seek a CHL.

· The pizza guy who changed the law ·
Back in 1999, when Cincinnati Police stopped Feely for an expired vehicle license plate, he told officers he had a concealed handgun. Instead of accepting his explanation, they arrested him and took the revolver.

At the time, Ohio generally banned carrying a concealed firearm in public or a loaded/ accessible firearm in a vehicle. Feely was doing both, fearing someone would rob him of the hundreds of dollars he collected daily from customers to whom he delivered pizza.

"Having talked to cops and a lawyer, he thought all he had to do was explain his affirmative defense," said Feely's criminal defense attorney, Tim Smith.

Cincinnati Police arrested almost everyone they found with a concealed firearm and let the courts sort it out.

Illegally carrying a concealed weapon is a felony, and conviction can bar firearm possession for life. Feely rejected a plea bargain, fearing even a misdemeanor conviction for improperly transporting a firearm would deny him any CHL that Ohio might eventually adopt.

CHL crusader Chuck Klein brought Feely and Smith together. Feely said he was confident he could win because he followed Ohio law on what a "prudent" person would do.

"He was solid, never wavered," Smith said.

Hamilton County Common Pleas Judge Thomas Crush accepted Feely's affirmative defense and acquitted him, saying the concealed revolver was for a purpose allowed by Ohio law. The ruling, however, left the law intact.

Next, represented by Smith and now Gustavson, Feely and activist Klein sued to strike down the Ohio ban. They argued, in part, that the law was unconstitutionally vague because neither civilians nor police knew whether someone was in compliance.

Hamilton County Common Pleas Judge Robert Ruehlman agreed and struck down the law. The First District Court of Appeals upheld Ruehlman, but the Ohio Supreme Court disagreed. The law remained intact.

Feely said he became accustomed to lawyers and courts.

"But the emotional side was probably the most consuming part ... up and down the whole time," he said.

Meanwhile, his case energized like-minded Ohioans, and the 125th General Assembly responded with House Bill 12, creating the CHL. Now, unless an applicant is disqualified by specific, limited criteria, the local sheriff must issue a CHL within 45 days.

For activist Klein, it was a long-sought triumph and he made the most of it. He said Hamilton County Sheriff Simon Leis Jr., not one to hold a grudge over the litigation, personally presented him the first CHL issued here.

· 'You don't know if it's a joke' ·
Most Ohio CHL applicants must pass a state-approved handgun course. We each paid $150 for the 12-hour class because we weren't eligible for exemptions granted to law enforcement, some military and others.

Our class of 11 men and three women was one of two taught weekly at Target World in Sharonville. Classmates included a lawyer, a nurse, a graphic designer, some engineers, a college student and Feely.

Keith Nelson, certified by the National Rifle Association (NRA), was our instructor. He introduced himself as a former member of the U.S. Army's Special Forces and left it at that. No war stories, no braggadocio about his disabling wounds.

Nelson was there to teach us handgun law and safety; legal handgun transportation, use and choice; where we could and could not carry a concealed pistol; and anything else the Ohio legislature demanded. The NRA, regardless of its politics, continues to set the standard for civilian firearm safety instruction, and we used its curriculum, written materials and video.

Nelson said our class was typical. He covered handgun history, design and which caliber bullets "shut down the nervous system" and "incapacitate" an attacker with a shot to the torso. We learned how to wear a concealed handgun and to sweep away clothing to draw a semiautomatic or revolver from its holster.

Repeatedly, we were reminded of the fundamentals:

· Always point a firearm in a safe direction.

· Keep our finger off the trigger until we're ready to shoot.

· Keep the weapon unloaded until we're ready to shoot or carry it.

· Never assume a handgun is empty until we've checked, and even then, Nelson said, "Always treat a gun as loaded even if you know it's unloaded."

If a handgun has a mechanical safety meant to prevent it from firing, "Don't trust it," he said. "They can fail."

That's why, Nelson said, "There is no such thing as an accident." In other words, an unwanted discharge demonstrates ignorance or carelessness.

Feely has been shooting about 16 years, and this course was a refresher. He applied for his CHL two days after class finished. He didn't rush out last April to apply, fearing his arrest and acquittal might complicate the process. He waited instead, and his application was processed without a hitch.

Feely now drives his own catering truck and leaves his .50-caliber cannon home. Instead, he still carries an easily concealed S&W .357 Magnum revolver because of robbery risk.

"I want to deter (crime), but I don't advertise that I have it," he said.

Maybe that's why he hasn't painted his firm's tongue-in-cheek name on the truck: "Irish Gun Catering."

Not long ago Feely drew his revolver. An armed man tried to rob the Fairfax commissary where Feely buys supplies.

The man first put his rifle muzzle against Feely's chest, then aimed at another man in the office. That's when Feely pulled and pointed his stubby, powerful handgun at the man's head about three feet away.

Feely knew the man -- a recent commissary employee -- and as he put pressure on the trigger, he thought, " 'You don't know if it's a joke.' That's what stopped me."

It wasn't a joke, and the man fled without firing a shot. Feely held his fire.

Fairfax Police captured the rifleman 20 minutes later, about the same time the shakes hit Feely.

· Are you willing to kill? ·
In class, we watched an NRA video on spotting potential trouble and avoiding confrontations but how to respond with lethal force when that's impossible.

Retreat if we can, Nelson reiterated.

"It sounds cowardly, but get out of there," he said.

That hit home for classmate Jennifer Wolfe, 28. Carrying a revolver will make her more aware of her surroundings rather than more aggressive, she said.

"Because the last thing, the last thing I want to do is pull it," she said.

But make no mistake. Our class was about the possibility that we might have to kill someone to prevent serious bodily injury or death. That's when Ohio law allows deadly force -- not to protect property. It's also why Nelson asked us to consider whether we'd shoot to save ourselves or our families.

"That's a real mental barrier that you have to deal with yourself," he said. "If you don't think you can do it, don't carry the gun."

If we draw a handgun, be prepared to shoot. "It isn't just a bluff," Nelson said.

And no warning shots. "If you have to fire, make it count. ... We want to stop a threat," he said.

Hesitate, and we lose.

But if we do shoot someone in self-defense, be ready for unfailing condemnation, Nelson continued.

"The experience could be dreadful," he said. "The last thing you want to be involved in is a shooting. It will change your life for the worse. If there is any way to avoid it, do it."

Short of being a victim, that is.

There was no talk in class of killing, "offing" or "taking someone out." Rather, when avoidance and retreat were impossible, Nelson said, use a weapon whose bullet has the "energy to shut down the nervous system. ... What you want is immediate incapacitation."

Wolfe praised Nelson for treating her and the other women without condescension or that "macho cop thing." He helped her find pistols suited to her strength and hand, and she decided to buy a top of the line Smith & Wesson .357 Magnum Lady Smith snubnose revolver similar to Feely's.

"It will knock them down, and it has that lovely 'Lady Smith' in cursive engraved on the side," she said.

Wolfe wants it for home defense and long solo drives to and from rural quarries for scuba diving, where her cell phone won't work if she has car trouble. She plans to wear her revolver on her belt or lock it in a custom SUV console.

"I don't want my beautiful pistol stolen," she said.

Granted, female models in another video seemed chosen to appeal to male viewers, but Wolfe said the skimpy wardrobes helped her understand better how she might conceal her .357. Shooting for 20 years with her brother and father, she said, they typically cleaned the handguns, loaded them and all she had to do was find the target and fire. The CHL training changed that.

"I feel I can do it on my own," Wolfe said. "I feel more self-sufficient after class."

Another classmate often fishes central Ohio rivers, and he recalled how a crowd of people once swam too close, splashing and yelling.

"I viewed this situation as disrespectful, selfish and a catalyst to start a confrontation in which I would have prevailed," he said. "(Instead) I walked past them in the river, took off my waders, got in my Jeep ... to avoid any confrontation."

The man said he doesn't need a firearm, but the CHL and a handgun will increase his odds of getting home to his family if retreat is impossible.

· 'Officer, I'm armed' ·
Two members of our class, husband and wife, didn't own a handgun. He'd never fired one. She had once.

Some classmates owned more than one handgun. Most were experienced shooters.

No matter. Using well-thumbed large index cards, Nelson spent hours teaching or reviewing firearm safety and repeating the mantra: Be aware of our surroundings and avoid situations where deadly force might be justified. Don't butt into other people's quarrels with our guns. And another thing: "You don't drink and shoot."

He repeated the legal advice in a CHL brochure from Ohio Attorney General Jim Petro. In any traffic stop when we're carrying a concealed, loaded handgun:

· Remain in the vehicle.

· Roll down our window.

· Keep both hands in plain sight.

· Tell the officer we have a CHL and are carrying a handgun.

· Make no attempt to touch our handgun unless ordered to by the officer.

· Ask the officer for any particular instructions and comply.

· Know that the officer may take the gun for the duration of the stop.

Sgt. Joseph Luebbers of the Ohio State Highway Patrol said that, even before talking to us, any officer who checked our license plate would learn we have a CHL.

"There also are encounters unrelated to traffic stops," he said.

If we're stopped "for any law enforcement purpose," Petro and Nelson said, tell the officer we have the license and if we're carrying a concealed handgun. And the all-purpose reminders: There are lots of places we may not carry our guns, but we must have our license any time we do.

Lecture and discussion over, we practiced two-handed shooting stances and correct grips with dummy semiautomatics, including safe placement of our trigger finger. Until we're ready to fire, it rests on the frame above the trigger to reduce unintended shootings. The same is true when drawing a handgun or returning it to a pocket, waistband or conceal/carry holster.

"Otherwise, you'll find yourself beating yourself to the draw," Nelson cautioned.

Then we spent two hours on the firing range. We all passed the test.

After 36 practice shots at a head/torso silhouette, we took new targets; at least 25 of the next 30 shots fired at 3 and 7 yards had to hit within the scoring rings. The 3-yard distance was realistic in a potentially lethal encounter. Allowing an attacker to get closer risks the assailant knocking our weapon aside.

We fired single shots and aimed, repeated bursts of two; self-defense usually involves more than one shot, and we wanted them all in an attacker's torso. Keep both eyes open -- this is defensive shooting, and we want to know what's going on around us.

Nelson signed and filed each written exam and test target. We each received the NRA Basic Pistol Course certificate accepted by sheriffs who oversee licensing.

I made an appointment with the Hamilton County Sheriff's Department and took the certificate, a current color photo and my completed but unsigned application to room 100 of the Justice Center downtown. I paid the $45 non-refundable fee, signed the application form and was fingerprinted.

My license was ready in eight days. It's good for four years. The clerk also gave me a free pistol lock, bought with Project Child Safety funds. (For information and a license application form, visit www.hcso.org and click the pistol icon on the home page.)

· 'One good gun' ·
Handgun choice is personal. Revolvers are "very recommended for defense use" with their "out of the box reliability," Nelson said, while semiautomatic pistols typically require a few rounds to be fired to be sure they operate dependably.

Even so, semiautomatics are popular, especially because they have less kick than similarly powerful revolvers. Lacking the revolvers' bulging cylinder, they also can be more easily concealed.

Nelson said many bullets are too small to incapacitate an attacker with one shot to the torso. He dislikes even the popular 9-mm and less powerful .22-, .32- or .380-calibers for self-defense. He said the .38 Special, .357 Magnum, the .40, the .41, the .44 and the .45 are likelier to stop an attacker.

A .40-caliber semiautomatic is an "optimal" balance of stopping power and pistol size for conceal/carry, Nelson added.

It's "hard" to balance handgun size and stopping power, he said. Among small but powerful revolvers, the balance is between stopping power and recoil, and that's why the potent .357 Magnum chosen by Feely and Wolfe "is not for everyone."

About $300 will buy the least expensive but reliable revolver or semiautomatic; choice widens dramatically as prices rise to twice that. Avoid cheap handguns or used gun show/flea market weapons for self-defense, Nelson urged.

"Everyone can afford one good gun," he said. "What's your life worth?"

A concealed handgun can stick into our back or ribs, so Nelson urged us to consider, when choosing a holster, how and how long it'll be worn. A simple nylon waistband holster costs about $20. A custom leather holster is $90.

CHL customers typically choose a weapon smaller than what they own but not necessarily less powerful, according to Jeff Kuhns, an assistant manager of Target World.

"Price is about the biggest thing we run into," he said.

Kuhns recommends the 9-mm semiautomatic. "They make a smaller frame gun, and the stopping power is about the same as the larger caliber guns out there if they use a hollow point (bullet)," he said.

For a revolver, he recommends the snub-nose .357 Magnum chosen by Feely or Wolfe. Although it can be "painful" when .357 rounds are fired, the revolver also fires less powerful .38 Special rounds.

Newport gunsmith Pete Garrett sells guns at his Monmouth Street shop. CHLs have been available in Kentucky for nine years.

"People are pretty much dissatisfied with anything they (initially) buy for conceal/carry because 85 to 90 percent of the guns are too big to carry," Garrett said.

That leads many to leave the gun at home. "You're better off with a small gun than no gun," Garrett said.

He recommends a high quality .22 revolver small enough to conceal in a pocket or pocket holster.

"Even criminals don't want to carry a big gun," he said. "Learn from the street."

If a CHL customer insists on something more powerful, Garrett also recommends a good short-barrel .38 special or .357 Magnum revolver.

· Problems that haven't occurred ·
In addition to Kentucky and Indiana, 18 states honor Ohio's CHL and Ohio recognizes licenses from 16 of those states, according to Chad D. Baus of Ohioans for Concealed Carry. He said at least 46 states issue some kind of CHL.

Statistics submitted by 88 county sheriffs to the Ohio Attorney General confirmed what everyone expected when Gov. Bob Taft signed HB 12 -- a rush to get licenses when they became available last April. Then demand fell.

In the second quarter of 2004, sheriffs issued 26,307 licenses and denied 247 to people who couldn't pass background checks. In the third quarter, those numbers were 12,127 and 115. In the fourth quarter, it was 7,063 and 74.

Last year the Clermont County Sheriff issued the most CHLs statewide: 2,285. Butler County was third with 2,095. Hamilton County was eighth with 1,394. (In the first three months of this year, Hamilton County issued another 229 licenses, suspended three and revoked one. Eighteen applications were denied.) Warren County was 26th in the state last year, with 556 CHLs.

A caution: We can apply in any Ohio county contiguous with that in which we live, so CHL numbers don't necessarily mean Clermont has the most residents carrying concealed handguns or that Hamilton County has so few.

"For us, at least, it's gone pretty smoothly," said Ed Boldt, counsel to Sheriff Leis.

Leis' decision to require applicants to have appointments eased such rush as there was. Clermont numbers could reflect the walk-in application policy there.

In the first nine months, 42 CHLs were revoked for causes set out in the law -- fewer than one in 1,000 issued. Revocations included people who died, if a sheriff learns of the death.

A carefully watched case involved an Athens physician who pointed his licensed, loaded handgun at an enraged driver who approached him when both vehicles were stopped. Athens Police charged each man with a misdemeanor and confiscated the unfired weapon and CHL. Both were returned after the drivers entered a diversion program, and charges were dropped.

Baus said the few and unsuccessful prosecutions of which he's aware usually involved uncertainty about whether a CHL holder's weapon was being worn in "plain sight" in a vehicle.

Boldt said most or all of the appeals of CHL denials here involved people with minor drug offenses, because the statute rejects anyone with "any" drug offense. One applicant won his appeal in court, but the county is appealing. That case is unresolved.

Still, Boldt said that HB 12, for all its specificity on disqualifications, doesn't mention the visually handicapped, and one instructor told him of a legally blind applicant who asked for help on the shooting range. The instructor refused, and the applicant flunked.

Hamilton County has suspended or revoked "very few" CHLs in the past year and there was no pattern to the offenses involved, Boldt said. Conversations with patrol deputies and their supervisors show that problems with CHL holders in vehicles "are a non-event because it happens so rarely," he said.

Missteps include failing to tell a deputy about a loaded weapon or failing to have it in plain sight while wearing a seat belt. Boldt said he knows of no deputy arresting anyone or confiscating any licenses or weapons for those errors.

"People forget they have the darned things with them half of the time," he said.

In the same way, Boldt said he knows of no firearm offenses by a CHL holder in Hamilton County.

Yet the state has created a system to jerk the license of someone who screws up while away from home. The sheriff where the license is confiscated tells the issuing sheriff, who does the paperwork to suspend or revoke the CHL.

· To be continued ·
While a CHL holder might prevent a given crime, it's less clear whether a state CHL program prevents crime in general; the coincidence of licensing and a reported drop in violent crimes doesn't prove one caused the other. Too many other factors could be involved for casual cause-effect inferences.

On the other hand, economist John Lott's pioneering statistical study "More Guns, Less Crime" examined county (rather than statewide) crime statistics before and after states adopted CHLs. He concluded, in part, that criminals appeared to avoid persons who might be armed and chose more vulnerable victims.

In a recent e-mail exchange, Lott said he hasn't done a similarly detailed follow-up but is confident that his original findings will be sustained as more states report their experience with CHLs.

Toby Hoover of the Ohio Coalition Against Gun Violence challenges the first study.

"Lott's conclusions have been challenged by many academics, both on his methods and conclusions," Hoover said. "The number of permit holders in each state is very small in comparison to population. Very few conclusions of change in crime could be concluded with less than one-half percent of the population participating in anything. Jobs, community policing, block watches, bike patrols, increased police forces, the economy have all always had an influence on crime."

Hoover also said studies on which she relies show that crime decreased in states that had very restricted or prohibited CHL laws more than in states that had permissive laws like Ohio. She fears that legally concealed handguns could escalate a confrontation into a homicide, add to the culture of fear and do nothing to contribute to communities of nonviolence.

States with longer experience have convicted CHL holders who used handguns to commit crimes. What's not clear is whether they would have carried a handgun anyhow.

One source for those data is the anti-gun Violence Policy Center in Washington, D.C. Its 2002 report "More Guns, More Crime" clearly is meant to rebut Lott's "More Guns, Less Crime."

None of that resolves residual qualms that CHLs might put more handguns in vehicles from which they can be stolen and improper storage might add to weapons that children find and fire.

Meanwhile, legislative battles continue. Saying neighbors have a right to know who's armed, Hoover wants names of Ohio CHL holders to remain open public records. Saying publication would put them and their families at risk, CHL holders want to close those records to reporters. And some General Assembly members are trying to loosen restrictions on when and where guns may be carried.

Similarly, Smith and Gustavson say problems remain with the new CHL itself:

· Gustavson said the only sure way to avoid arrest for a loaded, concealed handgun in a vehicle is to lock it away every time we get in and take it out every time we want to carry it. That extra handling increases the chance of an unintended discharge.

· Smith said courts must decide how quickly we must tell an officer we're licensed and carrying a concealed, loaded handgun in a non-traffic encounter. A client was charged with failing to promptly alert an officer that he had a CHL and was carrying a loaded weapon because he was answering the officer's questions.

· Finally, consider this: If you're holding a licensed, holstered, loaded and concealed handgun in a vehicle, it must be in "plain sight." Yet only a committee could have written "concealed ... in plain sight."

Until the Ohio Supreme Court resolves what "plain sight" means in this context, individual officers must decide. Half in jest, lawyer Smith suggests "a forehead holster." ©



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