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Montville Township shooting highlights conflict in laws

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    Mark Bornino


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MEDINA — If the two men charged with shooting an assault rifle that sent bullets into two Montville Township homes are convicted of felonies, will they still be able to own guns?

Ohio law says yes.

Federal law says no.

Mark Bornino and R. Daniel Volpone were arrested Jan. 16 after police received 911 calls from two homes that bullets had struck their homes. One of the bullets embedded itself in a kitchen microwave.

Police found Bornino, 53, of 5544 Windfall Road, Montville Township, and Volpone, 45, of Parma, about a third of a mile away, firing an AK-47 assault rifle in Bornino’s backyard at paper targets with no backstop.

No one was injured, but both men were charged with firing a gun over a public road, which carries a maximum penalty of five years in prison and a $10,000 fine.

Both were bound over to a Medina County grand jury, which was scheduled to hear the cases Wednesday and report any indictments Friday.

Asked last week whether the men were in jeopardy of losing the right to possess firearms, county Prosecutor Dean Holman said Ohio law only bars gun possession for those convicted of a “felony offense of violence.”

The charge of firing a gun over a public road, while a third-degree felony punishable by up to five years in prison, would not be considered a crime of violence, Holman said.

Assuming the men were indicted and convicted of that charge, they still would be allowed to possess firearms, he said.

“They’re seeing similar situations in Colorado and Washington with legalizing marijuana. It’s not illegal by state law anymore, but federal agents could still arrest you for it.”

—Michael Benza, senior law instructor at Case Western Reserve University

But Mike Tobin, a spokesman for the U.S. attorney in Cleveland, said federal law is stricter, prohibiting anyone convicted of any crime carrying a potential punishment of more than a year from possessing firearms.

Holman said he wasn’t aware of the difference in the laws.

“I’m only an authority on state law,” he said.

Holman pointed out that only federal courts can enforce federal laws.

“If it’s prohibited under federal law, (a U.S. attorney) can prosecute it,” he said. “The state courts don’t have that authority.”

As a practical matter, enforcing the federal version of the law would be difficult.

That’s because those barred from possessing firearms under the U.S. law wouldn’t come to the attention of federal authorities unless they were facing other federal charges.

But if they were arrested on state charges, would a U.S. attorney pursue additional charges?

Tobin said he couldn’t give a firm answer.

“If they were convicted of a felony and were found to have a gun, the case could be referred to us,” Tobin said. “Without more knowledge of the circumstances, I’m hesitant to say any more.”

Legal scholars questioned whether a federal prosecutor would pursue a case solely on a gun possession charge.

“I’m just not sure this is a high priority,” Ric Simmons, a professor at Ohio State University’s Moritz College of Law, said. “I think the feds have bigger fish to fry.”

But Simmons stressed that federal law trumps state law.

Michael Benza, a senior law instructor at Case Western Reserve University, agreed. He cited the example of the conflict between federal and state drug laws.

“They’re seeing similar situations in Colorado and Washington with legalizing marijuana,” he said. “It’s not illegal by state law anymore, but federal agents could still arrest you for it.”

Benza also doubted federal authorities would prosecute someone solely for violating the U.S. gun possession law, which carries a maximum punishment of 10 years in prison.

“Whether federal agents would want to spend their resources,” he said, “depends on if there are other factors.”

Benza said “other factors” could include public demand for justice and concern for safety.

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