COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59260 HARRY W. ARNOLD, JR., ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : CITY OF CLEVELAND : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 169516. JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REVERSED AND REMANDED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: For Defendant-appellee: Richard M. Markus Craig S. Miller Daniel F. Gourash Kathleen A. Martin David C. Tryon Heather Graham-Oliver K. Bradley Mellor Marilyn G. Zack PORTER, WRIGHT, MORRIS & CITY OF CLEVELAND ARTHUR Department of Law 1700 Huntington Building 601 Lakeside Avenue 925 Euclid Avenue Room 106, City Hall Cleveland, Ohio 44115 Cleveland, Ohio 44114 (Continued on page -i-) -i- Richard L. Creighton, Jr. Keating, Muething & Klekamp 1800 Provident tower One East Fourth Street P.O. Box 1800 Cincinnati, Ohio 45202 Attorney for Amicus The Congress of Racial Equality, Inc. Of Counsel: Dennis A. Henigan, Esq. Director, Legal Action Project Center to Prevent Handgun Violence 1225 Eye Street, N.W., Suite 1100 Washington, D.C. 20005 Erwin N. Griswold James M. Loots Jones, Day, Reavis & Pogue 1450 G Street, N.W. Washington, D.C. 20005 Counsel for Fraternal Order of Police of Ohio, Inc. Fraternal Order of Police, Cleveland Lodge, Ohio Association of Chiefs of Police and Center to Prevent Handgun Violence Legal Action Project, as Amici Curiae Marvin L. Karp, Michael N. Ungar and Stephen J. Goodman Ulmer & Berne 900 Bond Court Building Cleveland, Ohio 44114 Attorneys for The Handgun Control Federation of Ohio, Inc. Stefan Tahmassebi Office of the General Counsel National Rifle Association 1600 Rhode Island Avenue, N.W. Washington, D.C. 20036 Richard M. Markus, Daniel F. Gourash, David C. Tryon, and K. Bradley Mellor Porter, Wright, Morris & Arthur 1700 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 -2- SWEENEY, JAMES D., J.: Plaintiffs-appellants in this case are: Harry W. Arnold, Jr.; John W. Babson; Daniel Ciamiacella; Terry L. Parks; and, Ralph Reichman, Jr. The defendant-appellee is the City of Cleveland. Plaintiffs are appealing from the order of the trial court granting summary judgment in favor of the defendant. For the reasons adduced below, we affirm in part, reverse in part, and reverse and remand in part. A review of the record reveals that plaintiffs filed their initial complaint on May 12, 1989, for declaratory judgment and permanent injunction against the validity, constitutionality, and enforceability of Cleveland Codified Ordinances Section 628.01 et seq. (1989) ("ordinance"). This ordinance bans the sale, display, transfer, acquisition or possession of any assault weapon as defined by the ordinance, and requires the immediate confiscation of those weapons if found within the boundaries of the City. The ordinance provides: CHAPTER 628 POSSESSION OR SALE OF ASSAULT WEAPONS PROHIBITED Section 628.01 Findings. The Council finds and declares that the proliferation and use of assault weapons is resulting in an ever-increasing wave of violence in the form of uncontrolled shootings in the City, especially because of an increase in drug trafficking and drug-related crimes, and poses a serious threat to the health, safety, welfare and security of the citizens of Cleveland. The Council finds that the primary purpose of assault weapons is antipersonnel and any civilian application or use of such weapons is merely incidental to such primary antipersonnel purpose. The Council -3- further finds that the function of this type of weapon is such that any use as a recreational weapon is far outweighed by the threat that the weapon will cause injury and death to human beings. Therefore, it is necessary to establish regulations to restrict the possession or sale of these weapons. It is not the intent of the Council to place restrictions on the use of weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities. Section 628.02 Definitions. For the purpose of this chapter: (a) "Assault weapon" means: (1) any semiautomatic action, center fire rifle or carbine that accepts a detachable magazine with a capacity of 20 rounds or more; (2) any semiautomatic shotgun with a magazine capacity of more than six rounds; (3) any semi-automatic handgun that is: A. a modification of a rifle described in division (a)(1), or a modification of an automatic firearm; or B. originally designed to accept a detachable magazine with a capacity of more than 20 rounds. (4) any firearm which may be restored to an operable assault weapon as defined in divisions (a)(1), (a)(2) or (a)(3). (5) any part, or combination of parts, designed or intended to convert a firearm into an assault weapon as defined in divisions (a)(1), (a)(2) or (a)(3), or any combination of parts from which an assault weapon as defined in divisions (a)(1), (a)(2) or (a)(3), may be readily assembled if those parts are in the possession or under the control of the same person. (b) Assault weapon does not include any of the following: -4- (1) any firearm that uses .22 caliber rimfire ammunition with a detachable magazine with a capacity of 30 rounds or less. (2) any assault weapon which has been modified to either render it permanently inoperable or to permanently make it a device no longer defined as an assault weapon. (c) "Automatic firearm" means any firearm designed or specially adapted to fire a succession of cartridges with a single function of the trigger. (d) "Deadly weapon" means any instrument, device or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried or used as a weapon. (e) "Firearm" means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm" includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable. (f) "Handgun" means any firearm designed to be fired while being held in one hand. (g) "Person" means any individual, corporation, company, association, firm, partnership, club or society, including wholesale and retail gun dealers. (h) "Rifle" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a refiled bore for each single pull of the trigger. (i) "Semiautomatic firearm" means any firearm designed or specially adapted to fire a single cartridge and automatically chamber a succeeding cartridge ready to fire, with a single function of the trigger. (j) "Shotgun" means a firearm, whether or not it is intended to be fired from the shoulder, that is designed or redesigned, made or remade, to fire a fixed shotgun shell. -5- Section 628.03 Unlawful Conduct. (a) No person shall sell, offer or display for sale, give, lend or transfer ownership of, acquire or possess any assault weapon. (b) This section shall not apply to any officer, agent, or employee of this or any other state or the United States, members of the armed forces of the United States or the organized militia of this or any other state, and law enforcement officers as defined in division (d) of Section 601.01, to the extent that any such person is authorized to acquire or possess an assault weapon and is acting within the scope of his duties. Section 628.04 Seizure and Destruction of Assault Weapons. Any assault weapon is hereby declared to be contraband and shall be seized and disposed of in accordance with Section 2933.43 of the Revised Code. Section 628.99 Penalty. Whoever violates Section 628.03 is guilty of unlawful possession of an assault weapon, a misdemeanor of the first degree. Effective May 1, 1989 and thereafter, whoever violates Section 628.03 is guilty of unlawful possession of an assault weapon, shall be sentenced to six months imprisonment and fined one thousand dollars ($1,000.00) and no part of said sentence shall be reduced in any manner. Section 2. Any person who, prior to the effective date of this ordinance, was legally in possession of a firearm prohibited by this ordinance shall have fourteen (14) days from the passage date of this ordinance to do any of the following without being subject to prosecution hereunder: (a) to remove said firearm from within the City limits of Cleveland; or (b) to modify said firearm to either render it permanently inoperable or to permanently make it a device no longer defined as an assault weapon. -6- Section 3. That this ordinance is hereby declared to be an emergency measure and, provided it receives the affirmative vote of two-thirds of all the members elected to Council, it shall take effect and be in force immediately upon its passage and approval by the Mayor; otherwise it shall take effect and be in force from and after the earliest period allowed by law. On May 19, 1989, plaintiffs commenced discovery by serving a request for production of documents and first set of interrogatories to defendant. On May 26, 1989, plaintiffs then noticed the depositions of: Howard Rudolph, Chief of Police for the City of Cleveland; and three city councilmen, to-wit: James Rokakis, Michael Polensek and David McGuirk. These depositions were scheduled for June 20 and 21, 1989. On June 19, 1989, the City filed a motion for a protective order relative to these four depositions and all other discovery pending the ruling on a soon- to-be-filed dispositive motion. Plaintiffs filed a motion to compel the attendance of the deponents on June 26, 1989. The court granted the City's motion for a protective order on June 30, 1989, and denied the plaintiff's motion to compel on July 3, 1989. Thus, all discovery was precluded in the case. Plaintiffs filed their first amended complaint on June 30, 1989. A second amended complaint was filed with leave of court by plaintiffs on July 26, 1989. No answer has been filed by the defendant. On August 22, 1989, the City filed a motion to dismiss or in the alternative motion for summary judgment on count one of the second amended complaint. Civ. R. 12(B)(6), 56. Attached to this motion were seventeen affidavits from members of the city -7- council. That same date, the City also filed a separate motion to dismiss the remaining eleven counts of the second amended complaint. Civ. R. 12(B)(6). On November 15, 1989, plaintiffs filed a brief in opposition to defendants motions to dismiss counts one through twelve. That same date, plaintiffs filed a motion to delay consideration of defendant's motion for summary judgment so as to permit a reasonable opportunity to conduct discovery pursuant to Civ. R. 56(F). The City filed a response to the motion to delay ruling on December 1, 1989. The City filed its reply with leave of court on January 18, 1990. Plaintiff filed a surreply brief on February 6, 1990 (a leave request to file this surreply was not ruled on by the trial court). The trial court, on February 7, 1990, issued its eleven page opinion and ruling on the City's motions to dismiss. In its ruling, the court merged the two dispositive motions and treated them as a single motion for summary judgment, thereby relying on the evidentiary support of defendant. The court granted summary judgment on each of the twelve counts raised in the second amended complaint. Thus, the trial court denied plaintiffs' request for a declaratory judgment and injunctive relief, and made a determination that the ordinance was constitutional. Plaintiffs filed their notice of appeal from the court's -8- ruling on February 9, 1990./1\ Four assignments of error are presented for our review. I THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY JUDGMENT FOR COUNT ONE. Count One alleges a violation of the "sunshine" statute [R.C. 121.22] and the open meetings provision of the City's charter [Chapter Five, Section 28] in the preparation and enactment of the ordinance by the City Council of Cleveland. Appellant contends that the trial court failed to properly notice the parties of its intent to convert the motion to dismiss count one into a motion for summary judgment on count one. Such notice by the court was not required where the defendant's motion relative to count one was titled alternatively a motion to dismiss or a motion for summary judgment. Seventeen affidavits were attached in support of the motion for summary judgment. See Masten v. Plain Dealer Publishing Co. (July 12, 1984), Cuyahoga App. No. 47626, unreported, at 6. The court considered it as a motion for summary judgment. There was simply no conversion of the motions relative to count one, thus no notice by the court was required as to that count. Plaintiff also argues that summary judgment was improperly granted on count one where plaintiff had requested a delay in the /1\ Amicus Curiae briefs were submitted by: The Congress of Racial Equality, Inc.; Fraternal Order of Police of Ohio, Inc., et al.; Handgun Control Federation of Ohio, Inc.; and, The National Rifle Association. -9- ruling so as to permit an opportunity to conduct discovery necessary to rebut the motion for summary judgment and its evidentiary support. See Civ. R. 56(F)./2\ Plaintiff's motion made pursuant to Civ. R. 56(F) contained the affidavit of counsel as required by that rule. The affiant averred that plaintiffs were unable to respond to the affidavits of the seventeen members of city council due to the court's protective order preventing any discovery in the case. We find this argument to be persuasive. Plaintiffs should be provided the opportunity to conduct discovery relevant to the controversy of count one. See Gates Mills Investment Co. v. Pepper Pike (1978), 59 Ohio App. 2d 155; and Whiteleather v. Yosowitz (1983), 10 Ohio App. 3d 272, 276. The City, in its response to plaintiffs' motion to delay ruling, put the court on notice of the potential need for discovery on plaintiffs' part in the event the court considered the motion for summary judgment. Under the circumstances, the court abused its discretion in not delaying consideration of the motion for summary judgment until plaintiffs had the opportunity to conduct relevant discovery. Therefore, summary judgment as to count one is reversed. The matter is remanded to the trial court to allow /2\ Civ. R. 56(F) provides: (F) When affidavits unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. -10- plaintiffs, in the trial court's determination, an appropriate amount of time to conduct discovery and file opposing evidence prior to re-ruling on the motion for summary judgment on count one. Assignment affirmed. The remaining three assignments of error will be discussed jointly. II THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY JUDGMENT FOR COUNTS TWO THROUGH FIVE. III THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY JUDGMENT ON COUNTS SEVEN THROUGH NINE BECAUSE THE ORDINANCE VIOLATES THE SUPREMACY CLAUSE OF THE U.S. CONSTITUTION. IV THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY JUDGMENT ON COUNTS TEN AND ELEVEN BECAUSE THE ORDINANCE IMPAIRS THE ABILITY OF THE GOVERNOR AND THE SHERIFF TO CALL ARMED CLEVELANDERS FOR SERVICE IN THE UNORGANIZED MILITA (sic) OR A POSSE COMITATUS. Essentially, these three assignments, for a variety of reasons, dispute the trial court's determination of the constitutionality of the ordinance. In its appellate brief under the first assignment of error, appellants specifically requested that their argument and reasoning dealing with the trial court's failure to provide notice of its intent to convert the motions to dismiss to a single motion for summary judgment be applied to our review of -11- the judgment on the remaining counts. See appellants' brief, page 7, fn. 3. This review will be accomplished presently. In Reese v. Ameritrust Co. Nat'l Assn. (March 14, 1991), Cuyahoga App. No. 57936, unreported, Judge John V. Corrigan, with the concurrence of Judges McManamon and Francis Sweeney, stated the following at pages four through five: Civ. R. 12(B) provides in relevant part: *** When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. The Ohio Supreme Court in Petrey v. Simon (1983), 4 Ohio St. 3d 154, syllabus, held: 1. A court must notify all parties when it converts a motion to dismiss for failure to state a claim into a motion for summary judgment. (Civ. R. 12[B], applied and construed.) 2. A court must notify all parties that it has converted a motion to dismiss for failure to state a claim into a motion for summary judgment "at least fourteen days before the time fixed for hearing." (Civ. R. 12[B] and 56[C], applied and construed.) Hence, the trial court must indicate clearly its intention to convert the motion to dismiss into a motion for summary judgment, and the record must reflect that the trial court furnished actual notice of the intended conversion. Fraternal Order of Police v. D'Amico (1982), 4 Ohio App. 3d 15, 17. -12- Also, Federated Dept. Stores, Inc. v. Lindley (1987), 30 Ohio St. 3d 135, syllabus. Although it is obvious that the trial court did not provide any actual notice of its intent to convert the motion to dismiss the remaining counts to one for summary judgment, the failure to provide such notice is not prejudicial where the motion to dismiss should have been granted. Nelson v. Klima (April 25, 1991), Cuyahoga App. No. 58288, unreported at page 3, citing Gunthie v. Ohio Liquor Control Comm. (1988), 43 Ohio App. 3d 101, paragraph one of the syllabus. For the purposes of a motion to dismiss for failure to state a claim upon which relief can be granted, the complaint is to be liberally construed in the light most favorable to the plaintiff, and the material allegations are to be taken as admitted. Slife v. Kundtz Properties (1974), 40 Ohio App. 2d 179, 182. In order to prevail on a Civ. R. 12(B)(6) motion, it must have appeared beyond doubt from the complaint that the plaintiff could prove no set of facts entitling him to recovery. Petrey v. Simon (1983), 4 Ohio St. 3d 154; Zuber v. Ohio Dep't of Insurance (1986), 34 Ohio App. 3d 42, 44. A motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint and should not be used to terminate litigation on the merits. Slife, supra, at paragraph one of the syllabus. A trial court should not dismiss the complaint because it doubts the plaintiff will win on the merits. Id. at paragraph four of the syllabus. Eagleye v. TRW, Inc. (March 21, 1991), Cuyahoga App. No. 58084, unreported, page 5. -13- Accordingly, we must look to the remaining counts of the complaint to determine if they can prevail a Civ. R. 12(B)(6) challenge. To facilitate our analysis, each count will not be reproduced verbatim, but will be reduced to its essence. Also, the counts will be addressed in the groupings provided in appellants' assignments of error. The ruling on count six of the second amended complaint, which alleges an improper taking of property in violation of due process, has not been included in appellants' assignments of error and will not be discussed in this opinion. A Count Two of the second amended complaint states in pertinent part at paragraphs 71 and 72: "71. Article I, Section 1 of the Ohio constitution provides: All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property and seeking and obtaining happiness and safety. "72. By completely banning the possession, sale and/or ownership of "assault weapons," as that term is defined in the Ordinance, the Ordinance violates the individual rights guaranteed by Article I, 1 of the Ohio Constitution and, therefore, is unconstitutional, invalid and unenforceable." Count Three of the second amended complaint states in pertinent part at paragraphs 76 and 77: "76. Article I, Section 4 of the Ohio Constitution provides: -14- The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty and shall not be kept up; and the military shall be in strict subordination to the civil power. "77. By completely banning the possession, sale and/or ownership of "assault weapons," as that term is defined in the Ordinance, the Ordinance violates the individual rights guaranteed by Article I, Section 4 of the Ohio Constitution and, therefore, is unconstitutional, invalid and unenforceable." Count Four of the second amended complaint, at paragraphs 81 and 82, alleges that the ordinance is overbroad: "81. Any semi-automatic firearm with a detachable magazine is capable of accepting magazines with twenty (20) or more rounds. Thus, besides banning any shotgun with a magazine capacity of more than six (6) rounds, the Ordinance effectively bans any and all semi- automatic pistols and centerfire rifles, with detachable magazines, other than .22 caliber rimfire. "82. By completely banning the possession, sale and/or ownership of "assault weapons" as that term is defined in the Ordinance, the Ordinance is overbroad in attempting to achieve its stated purpose and unnecessarily invades and infringes upon protected, constitutionally guaranteed individual rights and freedoms." Count Five of the second amended complaint, at paragraph 86, employs a "least restrictive" test: "86. By completely banning the possession, sale or ownership of "assault weapons" as that term is defined in the Ordinance, the Ordinance fails to use the least restrictive means of achieving its stated purpose and unnecessarily invades and infringes upon protected, constitutionally guaranteed individual rights and freedoms. The ordinance in question was enacted pursuant to Section 3, Article XVIII, of the Ohio Constitution, which reads as follows: -15- "Municipalities shall have the authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws." In City of Cleveland v. Turner (August 4, 1977), Cuyahoga App. No. 36126, unreported, this court reasoned that the right of a person to bear arms is subservient to the authority of the state to regulate the possession of those arms pursuant to reasonable regulations under the police powers of government. Id. at pages 5 and 6 citing Mosher v. Dayton (1976), 48 Ohio St. 2d 243, 247-248. The standard of review by which the constitutionality of ordinances enacted pursuant to Section 3, Article XVIII are to be judged was stated in City of Cleveland v. Turner, supra, at page 5, citing Cincinnati v. Correll (1943), 141 Ohio St. 535, 539: "From a consideration of many cases upon the subject of police power the standards to determine the validity of this class of legislation may be stated thus: "Laws or ordinances passed by virtue of the police power which limit or abrogate constitutionally guaranteed rights must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the object sought to be obtained, namely, the health, safety, morals or general welfare of the public." (Emphasis added). With this standard of review in mind, the appellants' use of a strict scrutiny/fundamental right standard in counts two through five is inapplicable. -16- Reviewing the challenged City ordinance, we find that it fulfills the standard of review previously stated above. Having failed to state a claim for relief, judgment for defendant on counts two through five was proper. B Count Seven of the second amended complaint provides the following at paragraphs 94-99: 94. The United States Congress in 10 U.S.C. 4307-4313 authorized the Secretary of the Army to establish and provide for a Civilian Marksmanship Program ("CMP") to be conducted under rules approved by the Secretary of the Army. The purpose of the CMP is to promote marksmanship training with rifled arms by citizens of the United States. 95. The Department of the Army, at 32 C.F.R. 543, adopted rules and regulations establishing the CMP under the management and control of the Director of Civilian Marksmanship ("DCM"). 96. Pursuant to the terms of 32 C.F.R. 543, shooting clubs may affiliate with the DCM and be issued firearms which are "assault weapons" under the Ordinance. 97. Pursuant to the terms of 32 C.F.R. 543, the custodian of an affiliated shooting club may issue to individual members for possession and custody in their homes, firearms which are "assault weapons" under the Ordinance. 98. Under the terms of the Ordinance, the possession of firearms issued to individual members by DCM affiliated shooting clubs within the City of Cleveland is prohibited and renders the firearms subject to seizure and confiscation. 99. The Ordinance is in direct and positive conflict with the provisions and underlying policy of 10 U.S.C. 4307-4313 and 32 C.F.R. 543 so that they cannot be reconciled or consistently stand together. As such, the Ordinance violates the Supremacy Clause of Article VI of the U.S. Constitution and is, -17- therefore, unconstitutional, invalid and unenforceable. Count Eight of the second amended complaint provides the following at paragraphs 103-106: 103. As part of the CMP, National Matches and other excellence-in-competition matches are to be held to promote the national defense by encouraging voluntary marksmanship training for persons who are not reached by training programs of the armed services who may be called into service in an emergency. Such matches are to be conducted under authority of 10 U.S.C. 4307-4313 and the rules adopted by the Department of the Army as set forth in 32 C.F.R. 544. 104. Pursuant to the terms of 32 C.F.R. 544, firearms which are "assault weapons" under the Ordinance are used by participants in the National Matches. 105. Under the terms of the Ordinance, the lending, ownership or possession of firearms used in the National Matches within the City of Cleveland is prohibited and such firearms are subject to seizure and confiscation. 106. The Ordinance is in direct and positive conflict with the provisions and underlying policy of 10 U.S.C. 4307-4313 and 32 C.F.R. 544 so that they cannot be reconciled or consistently stand together. As such, the Ordinance violates the Supremacy Clause of Article VI of the United States Constitution and is, therefore, invalid and unenforceable. Count Nine of the second amended complaint provides the following at paragraphs 110-112: 110. The United States Congress has specifically provided in 18 U.S.C. 926A that a person may transport firearms from any place where he may lawfully possess and carry such firearms to any other place where he may lawfully possess and carry such firearms. 111. Under the terms of the Ordinance, the ownership or possession of firearms within the City of Cleveland is prohibited and such firearms are subject to seizure and confiscation. -18- 112. The Ordinance is in direct and positive conflict with the provision and underlying policy of 18 U.S.C. 926A so that the two cannot be reconciled or consistently stand together. As such, the Ordinance violates the Supremacy Clause of Article VI of the United States Constitution and is, therefore, unconstitutional, invalid and unenforceable. The standard of review relative to the Supremacy Clause contained in the U.S. Constitution, Article VI, Clause 2, is stated in Fidelity Federal S & L Assn. v. de la Cuesta (1982), 458 U.S. 141, 153, 73 L.Ed. 2d 664, 675: "[5-7] Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 US 132, 142-143, 10 L Ed 2d 248, 83 S Ct 1210 (1963), or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, 312 US 52, 67, 85 L Ed 581, 61 S Ct 399 (1941). See also Jones v. Rath Packing Co., 430 US, at 526, 51 L Ed 2d 604, 97 S Ct 1305; Bethlehem Steel Co. v. New York Labor Relations Bd., 330 US 767, 773, 91 L Ed 1234, 67 S Ct 1026 (1947)." The federal statutes and regulations relied upon by plaintiffs are: 10 U.S.C. Sections 4307-4313; 18 U.S.C. Section 926A; and 32 C.F.R. Sections 543 and 544. Title 10 U.S.C., Sections 4307-4313 establishes the appointment, by the President of the United States, of a director of civilian marksmanship ("DCM") to serve under the Secretary of the Army ("SA"). This statute also provides for: the establishment of civilian rifle ranges and the instruction of -19- able-bodied citizens in marksmanship; the issue of standard military rifles for use in rifle practice at the civilian ranges; the creation of "National Matches" in rifle and pistol competition. Title 18 U.S.C. Section 926A provides: 926A. Interstate transportation of firearms Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter [18 USCS 921 et seq.] from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console. (Emphasis added.) The purpose of 32 C.F.R. Section 543 is to govern the SA's "program for promoting marksmanship training with rifled arms among citizens of the United States." Id., Section 543.1. Management control over this marksmanship training program is exercised by the DCM. Id., Section 543.5. This statute also provides the organization, eligibility, and provisions of civilian shooting clubs through the DCM. Storage and security for the weapons issued to the shooting club is detailed in the -20- statute at Sections 543.17. The statute, at Section 543.17(g)(5)(v), additionally provides that "Storage, will, in addition, conform to local ordinances and regulations, if any." The purpose of 32 C.F.R. Section 544 is to prescribe the "policies, procedures, and responsibilities for the National Matches and other excellence-in-competition matches." Id., Section 544.1. This section authorizes the holding of the yearly National Matches at Camp Perry in Port Clinton, Ohio, said matches to be conducted by the SA and being intended to promote the national defense. Id., Sections 544.4(b), 544.9 and 544.12. Additionally, the regulation describes the types of firearms to be used at the matches. In particular, two of the semi- automatic, center-fire, rifles, namely the caliber 7.62mm M14 series and caliber 5.56mm M16 series, or their commercial equivalents, are required to use the standard twenty or thirty round box magazine during firing on all courses of the match. Id., Section 544.52. All ammunition used by the competitors is issued by the U.S. Government. Id., Section 544.57. Appellant argues that the ordinance conflicts directly with 18 U.S.C. Section 926A by effectively prohibiting the transportation of assault weapons through the City by virtue of possessing those banned weapons. We agree. One may not comply with both the ordinance and Section 926A where one is authorized by federal law under 18 U.S.C. Section 921, et seq., to transport firearms through the City of Cleveland. 18 U.S.C. Section 927. The ordinance is flawed to the extent the ordinance -21- makes it unlawful for those authorized persons to transport weapons through the City pursuant to Section 926A. Appellants next argue that the ordinance conflicts with federal law in that it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" relative to the civilian marksmanship program. Appellants' brief, at 35-37. In reviewing the applicable statutes and regulations cited by appellants, we find that the Congress did intend to promote marksmanship among the citizenry using rifled arms. The regulations governing the promotion of rifle practice, 32 C.F.R. Section 543, et seq., provide for civilian shooting clubs to be affiliated with the civilian marksmanship program. Once affiliated, the DCM may issue a certain number of .22 caliber rifles and .30 caliber service rifles, not to the individual, but to the club. Id., section 543.10(a). These rifles are intended for target practice only. It was not the intent of the ordinance to restrict the use of weapons intended for target practice. Cleveland Codified Ordinance 628.01. Additionally, the intent of Congress not to preempt a state or local regulation in promoting marksmanship is evidenced in requiring that storage of the arms issued to the club conform to local ordinances and regulation, 32 C.F.R. Section 543.17(g)(5)(v), and that personnel supervising rifle practice during civilian use of government rifle ranges "enforce compliance with local safety and other regulations." 32 C.F.R. Section 543.22(a)(1)(ii). The intent of Congress was to promote -22- marksmanship under a controlled situation with weapons which are intended for target practice or otherwise do not offend local regulations. Marksmanship training is not impeded in the City of Cleveland by the ordinance since arms other than "assault weapons" may be used for that purpose. Finally, the yearly National Matches at Port Clinton, Ohio, which are voluntary in nature and authorized pursuant to 32 C.F.R. Section 544, are not prevented by the City ordinance since these matches are not conducted in the City of Cleveland. Further, these matches, which are part of the civilian marksmanship program, and are intended to promote the national defense through open competition, are not obstructed by the ordinance. Citizens of Cleveland may still practice marksmanship with non-assault weapons and compete at the National Matches with those weapons or certain weapons loaned by the match authorities for that purpose. See 32 C.F.R. Section 544.53. Accordingly, plaintiffs failed to state a claim on counts seven and eight, and the trial court acted properly in granting judgment for defendant on those counts. The trial court erred in granting judgment in favor of defendant on count nine based on our finding that a violation of the Supremacy clause occurred. Judgment on count nine is reversed and the ordinance is found unconstitutional. C Count Ten of the second amended complaint provides the following at paragraphs 116 through 125: -23- 116. Article IX of the Ohio Constitution creates the State Militia and provides in Section 1 that: All citizens, residents of this state, being seventeen years of age, and under the age of sixty-seven years, shall be subject to enrollment in the militia and the performance of military duty, in such manner, not incompatible with the Constitution and laws of the United States, as may be prescribed by law. (As amended Nov. 7, 1961.) 117. Article IX, Section 4 of the Ohio Constitution provides that: The governor shall have power to call forth the militia, to execute the laws of the state, to suppress insurrection, to repel invasion, and to act in the event of a disaster within the state. (As amended Nov. 7, 1961.) 118. Section 5923.01 of the Ohio Revised Code divides the State Militia into four classes, the Ohio national guard, the Ohio naval militia, the Ohio military reserve and the unorganized militia. 119. Article IX, Section 4 of the Ohio Constitution and Section 5923.21 of the Ohio Revised Code give the governor the authority to call the militia, including the unorganized militia, to service for various purposes. 120. Article XVIII, Section 3 of the Ohio Constitution provides that: Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. (Adopted September 3, 1912.) 121. Article IX, Sections 1 and 4 of the Ohio constitution and Ohio Revised Code Section 5923.21 are general laws of the State of Ohio. 122. Some of the firearms that would be used by the unorganized militia if called to service by the Governor are "assault weapons," as that term is defined in the Ordinance. -24- 123. Under the terms of the Ordinance, the possession of "assault weapons" for use in the unorganized militia by citizens within the City of Cleveland is prohibited and renders such firearms subject to seizure and confiscation. The ability of the Governor to call the unorganized militia to service under Article IX, Section 4 of the Ohio Constitution and Section 5923.21 of the Ohio Revised Code is thereby impaired. 124. The ordinance limits the right, duty and capability of all members of the unorganized militia under Article IX, Section 1 of the Ohio Constitution who reside in the City of Cleveland because many of the firearms that would be used by members of the unorganized militia are "assault weapons," as that term is defined in the Ordinance. 125. The Ordinance is in direct and positive conflict with the provisions of Article IX, Sections 1 and 4 of the Ohio Constitution and Section 5923.21 of the Ohio Revised Code so that they cannot be reconciled or consistently stand together. As such, the Ordinance violates Article XVIII, Section 3 of the Ohio Constitution and is, therefore, unconstitutional, invalid and unenforceable. Count Eleven of the second amended complaint provides the following at paragraphs 129 through 138: 129. Under the common law, all citizens are subject to call as a member of the posse comitatus and law enforcement officials may call upon citizens to assist the law enforcement official in his or her duties. 130. Section 311.07 of the Ohio Revised Code provides in relevant part: "In the execution of the duties required of him, the sheriff may call to his aid such persons . . . as is necessary." 131. The portion of Ohio Revised Code Section 311.07 quoted in Paragraph 161 above is the codification of the common law concept of a posse comitatus. 132. Article XVIII, Section 3 of the Ohio Constitution provides that: -25- Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. (Adopted September 3, 1912.) 133. Ohio Revised Code Section 311.07 is a general law of the State of Ohio. 134. Some of the firearms that would be used by the posse comitatus if called upon by the sheriff are "assault weapons," as that term is defined in the Ordinance. 135. Under the terms of the Ordinance, the possession of "assault weapons" for use by members of the posse comitatus residing in the city of Cleveland is prohibited and renders such firearms subject to seizure and confiscation. 136. The ability of the sheriff to call upon the posse comitatus under Section 311.07 of the Ohio Revised Code is thereby impaired. 137. The rights, duties and capabilities of those subject to call as a member of the posse comitatus under the common law and Section 311.07 of the Ohio Revised Code is also thereby impaired. 138. The Ordinance is in direct and positive conflict with the provisions of Section 311.07 of the Ohio Revised Code so that they cannot be reconciled or consistently stand together. As such, the Ordinance violates Article XVIII, Section 3 of the Ohio Constitution and is, therefore, unconstitutional, invalid and unenforceable. Simply stated, appellants' argument relative to these two counts is reduced to this: the governor's and sheriff's ability to call forth the unorganized militia and a posse comitatus is impaired because those persons so called could not arrive for duty armed with assault weapons, thus, they are deprived of their ability to respond. -26- In determining whether an ordinance is in "conflict" with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa. Village of Struthers v. Sokol (1923), 108 Ohio St. 263, paragraph two of the syllabus. Also, Cincinnati v. Hoffman (1972), 31 Ohio St. 2d 163, 169. Appellants' reasoning would imply that if a citizen is unarmed, or without an assault weapon, that person may not properly respond to the call of the governor or the sheriff issued under the authority of R.C. 311.07 and 5923.21. We find this reasoning to be meritless. Since no person is obliged by law to own or possess any weapon or firearm, it is reasonable to assume that were a governor or sheriff to mobilize the unorganized militia or seek assistance of county citizens, a number of those citizens responding would be unarmed. The general laws cited by the appellants do not require that responding citizens be armed. We see no reason to place such a burden or restriction on the citizenry or the public officials who are empowered to seek their assistance. We find that the ordinance in question is not in conflict with the general laws cited by appellants. Accordingly, plaintiffs failed to state a claim for relief on counts ten and eleven. Thus, there was no prejudice in finding for the defendant on these two counts. In summary: the first assignment of error is sustained, resulting in the case being reversed and remanded as to this -27- assignment; the second assignment of error is overruled; the third assignment of error is overruled in part and sustained in part, resulting in the case being reversed in part; and the fourth assignment of error is overruled. Judgment affirmed in part, reversed in part, and reversed and remanded in part. -28- This cause is affirmed in part, reversed in part, and reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. FRANCIS E. SWEENEY, J., CONCURS; and KRUPANSKY, C.J., CONCURS IN JUDGMENT ONLY. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .