Under the representation of attorney Michael Wright of Wright & Schulte and Dwight Brannon, after hours of testimony, an Ohio jury awarded more than $6 million for failure to diagnose. On February 29, 2009, Karla Fountaine complained to her physician, Dr. Cheryl Gill, that she developed a cough, headaches, she had gained an unusual amount of weight, and her blood pressure increased during her pregnancy. Two days later, Karla Fountaine called Dr. Gill and complained of vaginal bleeding and she was admitted to Good Samaritan Hospital from February 28, 2009 until March 3, 2009. During her admission, hospital tests revealed other classic signs of pre-eclampsia including: elevated blood pressures, intrauterine growth restrictions, dropping platelets, and increased Alkaline. Despite all these tests and symptoms, no obstetrical consultation was requested by Dr. Gill and Karla Fountaine was discharged from the hospital.

Later that afternoon, Karla Fountaine returned to the hospital with extremely high blood pressure, headaches and vomiting upon which she was readmitted. Dr. Gill did not go to the hospital to see her patient. The next morning, the nurse found Karla Fountaine partly unconscious. An emergency C-Section was performed to save Karla Fountaine’s baby. Unfortunately, Karla Fountaine’s condition continued to deteriorate and she succumbed to her condition. A CT scan showed a hypertensive bleed and through autopsy, the medical examiner and other physicians identified the cause of death as intracerebral hemorrhage brought on by the failure to treat Karla Fountaine’s pre-eclampsia and eclampsia.

The case was defended by Neil Freund and Shannon Bockelman of Freund, Freeze, and Arnold.

Plaintiff’s experts included:
Frank Manning, M.D. OB/Gyn, MFM Tuckahoe, NY
Harlan Giles, M.D., Ob/Gyn El Paso, TX
Kevin Ferentz, M.D., Family Practice, Baltimore, M.D.
James Abrahams, M.D., Neuroradiologist, New Haven, CT
Mary Case, M.D., Neuropathologist, ST. Louis, MO
John Burke, Ph.D., Economist, Cleveland, OH

Defendant’s Experts included:
Baha Sibai, M.D., Ob/GYN, MFM, Houston, TX
Steven Eisinger, M.D., Ob/GYN Rochester, NY

Wright & Schulte, dedicated to protecting the rights of citizens to keep and bear arms, is pleased to announce that the Ohio Second District Court of Appeals has ruled in favor of its client, a Montgomery County Man who was denied his application for a concealed carry license. The Appellant was represented by Erik R. Blaine, an attorney with the firm who focuses in Second Amendment Rights.

The Appellant was stopped for speeding in 2004 while driving in Franklin, Ohio. He was cited for Speeding, in violation of Section 333.03 of the Franklin Municipal Code and charged with Drug Abuse, a minor misdemeanor, in violation of Section 513.03 of the Franklin Municipal Code, and Possession of Drug Paraphernalia, in violation of R.C. 2925.14, a misdemeanor of the fourth degree. The minor misdemeanor charge for Drug Abuse was dismissed, and he pled no contest to, and was found guilty of, Possession of Drug Paraphernalia.

In 2014, the Appellant applied to the Montgomery County Sheriff for a License to Carry a Concealed Weapon. A criminal background check performed as part of the licensing process revealed the 2004 Drug Paraphernalia conviction. On May 6, 2014, the Montgomery County Sheriff denied the application due to that conviction. Moving rapidly, Erik collected the information and filed an appeal of the decision. The Montgomery County Common Pleas Court affirmed the Sherriff’s decision to deny the license, interpreting Ohio law to exclude licenses for applicants with a conviction for Possession of Drug Paraphernalia because that offense necessarily involves the use or possession of drugs of abuse.

Knowing that this decision was in error, Erik filed the appeal to the Ohio Second District Court of Appeals, where he argued that the denial of the license was contrary to law, because it was based on an erroneous interpretation of the statute that precludes licenses for those convicted of an offense involving a drug of abuse, that a conviction for paraphernalia did NOT involve a drug of abuse.

In an Opinion rendered on August 21, 2015, the appeals court found for the Appellant, noting that at the time of the application, the conduct for which he was convicted was no longer prohibited by R.C. 2925.14. Instead, the conduct was a violation of R.C. 2925.141(C), which prohibits a person from “knowingly us[ing], or possess[ing] with purpose to use, any drug paraphernalia that is equipment, a product, or material of any kind that is used by the person, intended by the person for use, or designed for use in storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body marihuana.” The commission of that offense is a minor misdemeanor, which is not to be considered in the application for a concealed handgun license. As such, the judgment of the trial court was reversed on the basis that it had abused its discretion and the case was remanded for further proceedings.

There are legal options available to individuals who have been wrongfully denied their Second Amendment Rights. To learn more about Wright & Schulte, please visit www.legaldayton.com or by calling 937-435-9999.

Recently, I had a conversation with a friend of mine regarding a social media post about firearms. After a healthy debate, I sat back and thought about our respective positions. Essentially, our views could be distilled to this simple dichotomy: I believe citizens can be trusted and should be trusted with the right to bear arms and my friend believes they cannot.

Our conversation reminded me of the 1990s television show The X-Files, whose overarching theme was to “trust no one.” But that can never work with government. Once the government stops trusting We the People, how can We ever trust the government? The answer is We cannot. Like any good relationship, the relationship between government and its citizens must be based on trust.

The founding fathers clearly understood this and they drafted the Bill of Rights – the relationship agreement with the citizens – to be open ended, flexible, but most of all, trusting that people had and could handle unwavering rights even in changing and challenging times. The founding fathers did not write this as a Big Bang Theory Sheldon Cooper-esq agreement with self-serving, one-sided provisions. The whole reason the United States was founded because the founding fathers could no longer tolerate being governed by a kingdom that did not trust its citizens – a master-slave relationship.

Trust in Americans

Preserving our fundamental rights, including our right to keep and bear arms, keeps us a free people. The second amendment is not a throw away amendment – the founders had the foresight to realize that should a government ever stop trusting its people, the people would need that right in order to maintain the balance of power and protect themselves from enslavement.

Second Amendment opponents should know that, like other advocates for this fundamental right, I am not advocating that this is a blank check. Like any other contract, the citizens’ duty is to bear those arms responsibly. As our courts have said time and time again, in a not so many words, acts of unnecessary violence and terror breach that social contract. That breach is similarly unacceptable and has consequences – imprisonment, and loss of ones most basic rights as citizens. This is, for most, more than sufficient deterrence against using their rights as a sword rather than a shield. But for those few for whom loosing what makes them Americans is not sufficient deterrence, there can be no prevention for their bad acts, only punishment for their crimes.

It comes down to this: the founding fathers chose optimism and confidence in the vast majority of the people. They did not fall into the trap of denying fundamental rights to the many in order to stop the few who would breach the social contract. Protecting the rights of all to freely bear arms protects that trust and honors their optimism in our citizens and the American spirit.

The old adage forgive and forget does not extend to Ohio law and so Ohio Pardons – Forgive do not Forget.  On January 28, 2015, the Ohio Supreme Court held that a petitioner who obtained a pardon from the Governor may not be entitled to have the pardoned convictions sealed.  What?

In State v. Radcliff, 2015-Ohio-235, the Petitioner Radcliff had been granted a pardon for several convictions stemming from a 1982 conviction for breaking and entering a donut shop with a screwdriver.  Thereafter, Radcliff petitioned to have the case resulting in his now pardoned convictions to be sealed, which would prevent most people in the general public from knowing that the case, or the now pardoned convictions, ever happened.  The trial court ordered that the case be sealed.

The prosecutor appealed to the 10th District Court of Appeals in Columbus, arguing that Radcliff was ineligible to have his case sealed because he had too many convictions to qualify under the statute.  The 10th District Court of Appeals agreed with the prosecutor and reversed the order sealing Radcliff’s donut shop convictions.

Radcliff appealed to the Ohio Supreme Court, arguing that the decision in his case conflicted with the 1st District Court of Appeals in Cincinnati’s decision in the case of State v. Cope, 111 Ohio App.3d 309. In Cope, the 1st District held that a trial court may seal a record of conviction erased by a pardon regardless of how many offenses the petitioner has on his or her record.

While the Ohio Supreme Court agreed that Radcliff’s case conflicted with Cope, it ultimately sided with the 10th District.  The Ohio Supreme Court began by citing its own prior decisions that “the sealing of a criminal record is a ‘privilege, not a right.’”  The Ohio Supreme Court looked at the law allowing the Governor to issue pardons, concluding that the pardon does not automatically require that the record be sealed.

From there, the Ohio Supreme Court concluded that the law passed by the Ohio General Assembly that allows convictions to be sealed was specifically limited to “first offenders.”  The Ohio General Assembly had defined a “first offender” as someone who did not have any criminal convictions before or after the pardoned offenses. Because Radcliff did not meet those criteria, he could not have his case sealed.

The Ohio Supreme Court rejected Radcliff’s argument that judges have the inherent power to seal a criminal record whenever they wanted.  The Ohio Supreme Court found that the General Assembly’s law setting the requirements to seal a case could have included an exception to the “first offender” requirement for pardoned offenses, but did not.  In essence, the Ohio Supreme Court was unwilling to rewrite the law to include an additional avenue to seal a case – obtain a pardon – that the General Assembly had not included.

But the Ohio Supreme Court did not completely shut the door on sealing the record for those who are not “first offenders.” Instead, it explained that judges may have a very limited authority to seal records “limited to cases where the accused has been acquitted or exonerated in some way and the protection of the accused’s privacy interest is paramount to prevent injustice.”

Ohio Pardons – Forgive do not Forget

So, can the past ever be “forgotten”? After all, good people sometimes make mistakes.  Those mistakes can often prevent them from finding jobs or exercising their Second Amendment rights. The Ohio Supreme Court’s ruling shows that anyone looking to have a past transgression “forgotten” as well as “forgiven” should talk to his or her attorney to explore all of the options before being “forgiven” prevents being “forgotten.”

If you or someone you know wants to try to restore their Second Amendment right to bear arms, call toll-free (800-399-0795) or contact us for a FREEinitial consult today.

Under a letter I just recieved from the ATF the Sig Brace and Pistol IS a SBR if it is used against your shoulder instead of your forearm!

No matter what though, if you intend do this with your brace, since the Sig Brace and Pistol IS a SBR, you will need to register your firearm as an SBR.  The best method of doing so is still using an NFA Gun Trust in order to make sure you, your loved ones and your property is fully protected.  Currently, electronically submitted Form 1 making requests are only taking about 30 days so the process is quick for Trust submissions!

Here is the email in full:

ATF Firearms Letter on the Redesign of  Stabilizing Braces

OPEN LETTER ON THE REDESIGN OF “STABILIZING BRACES”

The Firearms and Ammunition Technology Division (FATD), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received inquiries from the public concerning the proper use of devices recently marketed as “stabilizing braces.” These devices are described as “a shooter’s aid that is designed to improve the single-handed shooting performance of buffer tube equipped pistols.” The device claims to enhance accuracy and reduce felt recoil when using an AR-style pistol.

These items are intended to improve accuracy by using the operator’s forearm to provide stable support for the AR-type pistol. ATF has previously determined that attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to National Firearms Act (NFA) control. However, this classification is based upon the use of the device as designed. When the device is redesigned for use as a shoulder stock on a handgun with a rifled barrel under 16 inches in length, the firearm is properly classified as a firearm under the NFA.

The NFA, 26 USCS § 5845, defines “firearm,” in relevant part, as “a shotgun having a barrel or barrels of less than 18 inches in length” and “a rifle having a barrel or barrels of less than 16 inches in length.” That section defines both “rifle” and “shotgun” as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder….” (Emphasis added).

Pursuant to the plain language of the statute, ATF and its predecessor agency have long held that a pistol with a barrel less than 16 inches in length and an attached shoulder stock is a NFA “firearm.” For example, inRevenue Ruling 61-45, Luger and Mauser pistols “having a barrel of less than 16 inches in length with an attachable shoulder stock affixed” were each classified as a “short barrel rifle…within the purview of the National Firearms Act.”

In classifying the originally submitted design, ATF considered the objective design of the item as well as the stated purpose of the item. In submitting this device for classification, the designer noted that

The intent of the buffer tube forearm brace is to facilitate one handed firing of the AR15 pistol for those with limited strength or mobility due to a handicap. It also performs the function of sufficiently padding the buffer tube in order to reduce bruising to the forearm while firing with one hand. Sliding and securing the brace onto ones forearm and latching the Velcro straps, distributes the weight of the weapon evenly and assures a snug fit. Therefore, it is no longer necessary to dangerously “muscle” this large pistol during the one handed aiming process, and recoil is dispersed significantly, resulting in more accurate shooting without compromising safety or comfort.

In the classification letter of November 26, 2012, ATF noted that a “shooter would insert his or her forearm into the device while gripping the pistol’s handgrip-then tighten the Velcro straps for additional support and retention. Thus configured, the device provides the shooter with additional support of a firearm while it is still held and operated with one hand.” When strapped to the wrist and used as designed, it is clear the device does not allow the firearm to be fired from the shoulder. Therefore, ATF concluded that, pursuant to the information provided, “the device is not designed or intended to fire a weapon from the shoulder.” In making the classification ATF determined that the objective design characteristics of the stabilizing brace supported the stated intent.

ATF hereby confirms that if used as designed—to assist shooters in stabilizing a handgun while shooting with a single hand—the device is not considered a shoulder stock and therefore may be attached to a handgun without making a NFA firearm. However, ATF has received numerous inquiries regarding alternate uses for this device, including use as a shoulder stock. Because the NFA defines both rifle and shotgun to include any “weapon designed or redesigned, made or remade, and intended to be fired from the shoulder,” any person who redesigns a stabilizing brace for use as a shoulder stock makes a NFA firearm when attached to a pistol with a rifled barrel under 16 inches in length or a handgun with a smooth bore under 18 inches in length.

The GCA does not define the term “redesign” and therefore ATF applies the common meaning. “Redesign” is defined as “to alter the appearance or function of.” See e.g. Webster’s II New College Dictionary, Third Ed. (2005). This is not a novel interpretation. For example ATF has previously advised that an individual possesses a destructive device when possessing anti-personnel ammunition with an otherwise unregulated 37/38mm flare launcher. See ATF Ruling 95-3. Further, ATF has advised that even use of an unregulated flare and flare launcher as a weapon results in the making of a NFA weapon. Similarly, ATF has advised that, although otherwise unregulated, the use of certain nail guns as weapons may result in classification as an “any other weapon.”

The pistol stabilizing brace was neither “designed” nor approved to be used as a shoulder stock, and therefore use as a shoulder stock constitutes a “redesign” of the device because a possessor has changed the very function of the item. Any individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal law, and are hereby revoked.

Any person who intends to use a handgun stabilizing brace as a shoulder stock on a pistol (having a rifled barrel under 16 inches in length or a smooth bore firearm with a barrel under 18 inches in length) must first file an ATF Form 1 and pay the applicable tax because the resulting firearm will be subject to all provisions of the NFA.

If you have any questions about the issues addressed in this letter, you may contact the Firearms and Ammunition Technology Division at [email protected] or by phone at (304) 616-4300.

 

Max M. Kingery

Acting Chief

Firearms Technology Criminal Branch

Firearms and Ammunition Technology Division

*This letter can also be found on http://www.atf.gov/content/Firearms/firearms-industry under the “News” tab.

This review is frustrating, and you can even sense that in the language used in attempting to explain this ruling.

No matter what though, if you intend do this with your brace, since the Sig Brace and Pistol IS a SBR, you will need to register your firearm as an SBR.  The best method of doing so is still using an NFA Gun Trust in order to make sure you, your loved ones and your property is fully protected.  Currently, electronically submitted Form 1 making requests are only taking about 30 days so the process is quick for Trust submissions!