Opposition Brief — Fredrick Johnson, Petitioner v. Ohio

No. 25-5007

In the Supreme Court of the United States

________________________________

FREDRICK JOHNSON,

Petitioner,

v.

STATE OF OHIO

Respondent.

__________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE OHIO COURT OF APPEALS

___________________________________

BRIEF IN OPPOSITION

___________________________________

MICHAEL C. O’MALLEY

Cuyahoga County Prosecutor

DANIEL T. VAN

TASHA L. FORCIHONE

Assistant Prosecuting Attorney

Counsel of Record

The Justice Center, 8th Floor

1200 Ontario Street

Cleveland, Ohio 44113

dvan@prosecutor.cuyahogacounty.us

(216) 443-7865

Counsel for Respondent State of Ohio

QUESTION PRESENTED (AS REWRITTEN BY RESPONDENT)

“Does a state intermediate court err by refusing to con-sider a defendant’s as-applied

Second Amendment challenge that he did not preserve below just because this Court

released a topical opinion while the case below was pending?”

i

LIST OF PARTIES

Petitioner is Fredrick Johnson. Respondent is the State of Ohio.

ii

TABLE OF CONTENTS

JURISDICTION............................................................................................................. 1

STATEMENT OF THE CASE AND FACTS ................................................................ 1

REASONS TO DENY THE PETITION ........................................................................ 2

I.

Johnson Forfeited Any Firearm Rights Claim by Failing to Raise It at Trial . 2

II.

Neither Rahimi Nor Williams Establishes a New Rule That Entitles Johnson

to Relief................................................................................................................ 4

III.

Ohio Law Affords the Individualized Process Endorsed in Williams and

Consistent with Historical Tradition. ................................................................ 5

IV.

Johnson Does Not Present a Question That Warrants Vacating and

Remanding, Let Alone Review. .......................................................................... 8

CONCLUSION............................................................................................................. 10

SERVICE ..................................................................................................................... 11

iii

TABLE OF AUTHORITIES

Cases

Arnold v. Cleveland, 616 N.E.2d 163 (Ohio 1993) ............................................................... 3

Batson v. Kentucky, 476 U.S. 79 (1986) ................................................................................. 8

District of Columbia v. Heller, 554 U.S. 570 (2008) .................................................... 2, 5, 9

Griffith v. Kentucky, 479 U.S. 314 (1987).............................................................................. 8

Joseph v. United States, 574 U.S. 1038 (2014)..................................................................... 8

McDonald v. City of Chicago, 561 U.S. 742 (2010) ......................................................... 2, 9

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) ...................................... 2, 4, 9

State v. Johnson, 239 N.E.3d 475 (Ohio Ct. App. 2024) ................................................ 1, 3

State v. King, 254 N.E. 3d 128 (Ohio Ct. App. 2024) .......................................................... 6

State v. Skaggs, 256 N.E. 3d 691 (Ohio Ct. App. 2024)...................................................... 6

United States v. Jones, 565 U.S. 400, 413 (2012) ................................................................ 4

United States v. Rahimi, 602 U.S. 680 (2024).............................................................. 3, 4, 5

United States v. Williams, 113 F.4th 637, 658 (6th Cir.) ............................................. 5, 6, 7

Yakus v. United States, 321 U.S. 414, 444 (1944) ............................................................... 3

Yee v. City of Escondido, 503 U.S. 519 (1992) ...................................................................... 4

i

Constitutional Provisions

Second Amendment ........................................................................................................ 2, 3, 4, 5

Statutes and Rules

28 U.S.C. § 1257 .......................................................................................................................... 1

Ohio Rev. Code § 2923.13 .......................................................................................................... 6

Ohio Rev. Code § 2923.14 ...................................................................................................... 6, 8

ii

JURISDICTION

Fredrick Johnson is seeking review, pursuant to 28 U.S.C. § 1257(a), of the

Supreme Court of Ohio’s decision not to accept an appeal from the decision of an Ohio

Court of Appeals. The Ohio Court of Appeals decision is reported—State v. Johnson,

239 N.E.3d 475 (Ohio Ct. App. 2024).

STATEMENT OF THE CASE AND FACTS

Proceedings Below

A Cuyahoga County grand jury indicted Johnson on five counts arising from a

November 2020 search of his residence that uncovered three loaded firearms, over

500 grams of marijuana, drug paraphernalia, and $7,158 in cash. Johnson, 239

N.E.3d at 481. The charges included drug trafficking, drug possession, possession of

criminal tools, and two counts of having weapons while under disability in violation

of Ohio Rev. Code § 2923.13(A)(2) and (A)(3). Id.

Johnson proceeded to a bench trial in May 2023. Id. at 480. Johnson raised no

constitutional challenge to the weapons-under-disability statute at trial. Id. at 486.

The trial court convicted Johnson on all counts except the firearm specifications and

sentenced him to nine months imprisonment. Id. at 482.

Decision Below

The Ohio Court of Appeals for the Eighth District affirmed Johnson’s

convictions in a unanimous decision. Id. at 480. The court applied plain-error review

to Johnson’s constitutional claims because he had failed to raise them at trial. Id. at

486-87.

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Addressing Johnson’s belated Second Amendment challenge, the court

explained that the post-Bruen landscape remains “unsettled” and that Johnson could

not satisfy his burden of establishing plain error when “no binding authority”

suggested the statute was unconstitutional as applied to his situation. Id. at 487. The

court noted the “novel” and “ongoing debate” surrounding Bruen's application to

felon-in-possession laws. Id.

On the sufficiency claim, the court found ample circumstantial evidence of

constructive possession. Johnson resided in the home where three loaded firearms

sat in plain view—two on a dresser in the basement “barbershop area” and one on a

shelf in the bedroom where mail addressed to Johnson was found. Id. at 481, 491. The

firearms were “easily accessible” and located near the drug-trafficking materials that

supported Johnson’s other convictions. Id. at 491.

The Ohio Supreme Court denied discretionary review on January 28, 2025.

2025-Ohio-231.

REASONS TO DENY THE PETITION

I.

Johnson Forfeited Any Firearm Rights Claim by Failing to Raise It

at Trial

Johnson forfeited his Second Amendment claim by not raising it in the trial

court. No constitutional argument. No invocation of District of Columbia v. Heller,

554 U.S. 570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010), or N.Y. State

Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Not even a claim under Ohio’s

Constitution, which recognized a right to bear arm for decades. Arnold v. Cleveland,

616 N.E.2d 163 (Ohio 1993). Nothing.

2

When law enforcement discovered multiple firearms in Johnson’s residence,

the record establishes that the weapons belonged to his wife. Johnson, 239 N.E.3d at

481 n.1. Johnson never claimed any ownership interest in the firearms or asserted

any right to possess them. That undermines any suggestion that he possessed the

firearms for the “core lawful purpose” of self-defense recognized in Heller, and

confirms that he made no effort to vindicate a constitutional right to bear arms. A

defendant who never claimed ownership cannot then assert that the government

violated his right to possess something he said wasn’t his.

"No procedural principle is more familiar . . . than that a constitutional right

may be forfeited in criminal as well as civil cases by the failure to make timely

assertion of the right." Yakus v. United States, 321 U.S. 414, 444 (1944). The question

he presents fails.

Nor can Johnson escape forfeiture by pointing to later developments in Second

Amendment doctrine. Bruen was decided in June 2022, prior to his conviction and

well within the time period when he could have raised a text-and-history-based

constitutional challenge. He did not. And although Johnson now attempts to invoke

United States v. Rahimi, 602 U.S. 680 (2024), that case did not create a new

substantive right or change the legal landscape with respect to felons or serious drug

offenders. Even if Rahimi clarified the application of the Bruen standard, it does not

retroactively cure a procedural default that occurred below. Not to mention he could

have asserted his rights under Ohio’s constitution. He didn’t. If anything, Rahimi

offered an approach. It didn’t give Johnson a right he couldn’t invoke before.

3

The principle remains: appellate courts do not rescue constitutional claims

that were never presented to the trial court. See United States v. Jones, 565 U.S. 400,

413 (2012) (an issue not raised below is not preserved for review). Perhaps had he

made a claim under the Second Amendment, he could have charted a new argument

before this Court. See Yee v. City of Escondido, 503 U.S. 519 (1992).

Johnson’s constitutional argument is forfeited. That procedural default is

dispositive, and the question presented has no grounding.

II.

Neither Rahimi Nor Williams Establishes a New Rule That Entitles

Johnson to Relief

Johnson invokes Rahimi, 602 U.S. 680, and United States v. Williams, 113

F.4th 637 (6th Cir. 2024), as though they altered the legal landscape in a way that

entitles him to relief on direct appeal. They do not. Neither case established a new

rule of constitutional law. Both decisions reaffirm the longstanding principle that

individuals with a history of violence or dangerous criminal conduct, such as Johnson,

may be constitutionally disarmed.

Far from supporting Johnson’s position, these cases confirm that his

convictions under Ohio Rev. Code § 2923.13(A)(2) and Ohio Rev. Code § 2923.13(A)(3)

remains valid under both federal and Ohio law.

The Court in Rahimi applied the text, history, and tradition framework from

Bruen, 597 U.S. 1, to uphold the constitutionality of 18 U.S.C. § 922(g)(8), which

prohibits firearm possession by individuals subject to certain domestic violence

protective orders. The Court clarified that modern laws need not be exact replicas of

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Founding-era regulations but must be “relevantly similar” in how and why they

burden the right to bear arms. Rahimi, 602 U.S. at 692.

The Court held that legislatures may disarm those who pose a “credible threat”

to the physical safety of others, a principle deeply rooted in the nation’s regulatory

tradition. Id. at 700. Importantly, Rahimi did not address the constitutionality of

felon-in-possession laws at all. Instead, it reaffirmed the baseline set in Heller, that

such laws are “presumptively lawful.” Rahimi, 602 U.S. at 699 (citing Heller, 554 U.S.

at 626–27 & n.26).

If anything, Rahimi undermines Johnson’s claim. The touchstone of that

decision was dangerousness—a principle that applies with full force to Johnson, who

has not only a prior conviction for aggravated assault, but also a history of drug

trafficking, including additional trafficking convictions in this very case. These are

precisely the types of offenses that justify firearm prohibitions under the reasoning

in Rahimi.

III.

Ohio Law Affords the Individualized Process Endorsed in Williams

and Consistent with Historical Tradition.

“[T]here is little debate that violent crimes are at least strong evidence that an

individual is dangerous, if not totally dispositive on the [felon in possession]

question.” United States v. Williams, 113 F.4th 637, 658 (6th Cir.). That principle

underscores why individuals like Johnson, convicted of both violent offenses and

felony drug trafficking, may constitutionally be disarmed under the Second

Amendment. But even if some form of individualized consideration is constitutionally

5

required, Ohio law already provides precisely the kind of process that satisfies the

tradition-bound framework reaffirmed in both Rahimi and Williams.

That law allowed for relief from disability. Ohio Rev. Code § 2923.14, which

allows individuals under disability to petition a court of common pleas for restoration

of their firearm rights. If, after hearing, the court finds that the person (1) “has

been fully discharged” if the disability was the result of a conviction, (2) “has led

a law-abiding life since discharge * * * and appears likely to continue to do so,” and

(3) “is not otherwise prohibited from acquiring, having, or using firearms” the court

may grant the applicant relief and restore “all civil firearm rights.” R.C. §2923.14(D),

(F).

This statutory process transforms Ohio Rev. Code § 2923.13’s prohibition into

a temporary and individualized measure, not a blanket or permanent ban. Some Ohio

appellate courts agree. State v. Skaggs, 256 N.E. 3d 691, 697-698 (Ohio Ct. App.

2024); State v. King, 254 N.E. 3d 128, 135 (Ohio Ct. App. 2024).

The availability of individualized relief under Ohio law not only aligns with

Rahimi and Williams but fits within the historical tradition that decision describes—

that individuals disarmed for being deemed dangerous have long been afforded the

opportunity to demonstrate they are no longer a threat. As Williams explains,

“[g]overnments in England and colonial America long disarmed groups that they

deemed to be dangerous,” but critically, “individuals could demonstrate that their

particular possession of a weapon posed no danger to peace.” 113 F.4th at 657

6

This tradition dates back to pre-Founding England, where disarmament laws,

such as the 1328 Statute of Northampton and the 1662 Militia Act, targeted those

considered a threat to public order. Yet even then, disarmament was not categorically

permanent. Parliament’s disarming statutes, including those against Catholics,

allowed individuals to retain or regain arms upon swearing loyalty to the Crown. See

id. at 651–652. The historical principle was not simply to disarm based on status, but

to assess and remedy perceived threats to peace. In other words, dangerousness could

be rebutted by oath, behavior, or judicial determination.

That same logic carried into colonial America and the Founding era. Colonists

disarmed those suspected of disloyalty or violence, such as British loyalists or libelers,

but permitted restoration of rights once the individual proved peaceful character or

allegiance to the new government. Connecticut, Rhode Island, and Massachusetts

allowed disarmed individuals to keep or regain arms if they provided “satisfactory

reasons,” proved they were “friendly” to the colonies, or were deemed not dangerous

by committees or justices. Id. at 653–655. The thread running through each of these

examples is that while governments disarmed presumptively dangerous individuals,

they also provided means to demonstrate rehabilitation or non-dangerousness.

Ohio’s modern relief-from-disability statute reflects this same tradition. An

individual under weapons disability may petition a court for restoration of firearm

rights. The court must grant relief if it finds the individual has led a law-abiding life

since discharge or release and is not otherwise legally prohibited from possessing

firearms. This statute provides the very mechanism Williams describes: a class-wide

7

disarmament paired with the opportunity to prove peaceful character and regain

rights.

Ohio’s statutory scheme is not only constitutionally sufficient but historically

faithful. It embodies the longstanding Anglo-American tradition of linking arms

rights to demonstrations of law-abidingness and personal rehabilitation, just as

Bruen and Williams require. Johnson’s failure to invoke that process forecloses his

challenge.

Johnson didn’t seek relief under Ohio Rev. Code § 2923.14. And he could’ve

tried. He didn’t challenge the charges when he should’ve. The question presented

doesn’t hold. And he can’t ask the Court to require the Ohio Court of Appeals to

consider this federal question now.

IV.

Johnson Does Not Present a Question That Warrants Vacating

and Remanding, Let Alone Review.

The decision of the Ohio Court of Appeals shouldn’t be vacated. Review on the

merits should not be granted either. Neither Griffith v. Kentucky, 479 U.S. 314 (1987)

nor the statement respecting denial of certiorari in Joseph v. United States, 574 U.S.

1038 (2014) expressly excuses defendants from forfeiting arguments they never

raised at trial, even when later precedent might have helped them. Griffith allows

new constitutional rules to properly preserved claims in pending cases. Griffith of

course allowed the claim under Batson v. Kentucky, 476 U.S. 79 (1986) where the

defendant objected at trial to the prosecutor’s use of preemptory challenges. Griffith,

479 U.S. at 319. So Johnson reads Griffith too broadly.

8

The statement respecting the denial of certiorari in Joseph concurrence

addressed supplemental briefing in federal courts. Far from a mandate requiring

vacatur. This distinction is dispositive: Johnson never raised any constitutional

challenge at trial—not under Heller, McDonald, or even Bruen (decided before his

2023 trial), nor under Ohio's Constitution which has protected firearm rights for

decades. He never claimed ownership of the firearms (which belonged to his wife),

never asserted any right to possess them, and never invoked the trial court's

jurisdiction to develop a factual record about his dangerousness or rehabilitation.

Accepting Johnson's theory would eliminate preservation requirements whenever

new precedent emerges, forcing appellate courts to become trial courts on

unpreserved claims. Moreover, Ohio already provides the individualized process

Johnson seeks through its restoration-of-rights statute, which he never pursued.

That Johnson chose to forfeit multiple opportunities to challenge the statute—at trial,

through Ohio's restoration process, or even under then-existing Bruen—cannot create

a federal constitutional violation simply because Rahimi later clarified standards he

never asked any court to apply.

9

CONCLUSION

For all these reasons, this Court should deny the petition for writ of certiorari.

Respectfully submitted,

MICHAEL C. O’MALLEY

Cuyahoga County Prosecutor

/s/ Daniel T. Van

_________________________________

DANIEL T. VAN

Counsel of Record

TASHA L. FORCIHONE

Assistant Prosecuting Attorneys

The Justice Center, 8th Floor

-1200 Ontario Street

Cleveland, Ohio 44113

dvan@prosecutor.cuyahogacounty.us

(216) 443-7865

Counsel for Respondent State of Ohio

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No. 25-5007

In the Supreme Court of the United States

________________________________

FREDRICK JOHNSON,

Petitioner,

v.

STATE OF OHIO

__________________________________

PROOF OF SERVICE

_________________________________________

Pursuant to Rules 29.3 and 29.5(b) of the Rules of the Supreme Court of the

United States, Daniel T. Van, counsel of record for Respondent, the State of Ohio, and

a member of the Bar of this Court, hereby certifies that on July 31, 2025 he served

the following by Fed-Ex. next day and electronic mail:

Melissa Ghrist

Case Western Reserve University School of Law

11075 East Boulevard

Cleveland, Ohio 44106

All parties required to be served in this case have been served.

Respectfully submitted,

MICHAEL C. O’MALLEY

Cuyahoga County Prosecutor

/s/ Daniel T. Van

DANIEL T. VAN

The Justice Center, 8th Floor

1200 Ontario Street

Cleveland, Ohio 44113

dvan@prosecutor.cuyahogacounty.us

(216) 443-7865

11