Deliberately Arming Oneself to Answer Door to Police May Be “Privileged” Against “Obstructing Official Business” Prosecution

From State v. Conrad, decided Monday by the Ohio Court of Appeals, in an opinion by Judge Eugene Lucci, joined by Judges Matt Lynch and Scott Ylnch:

In 2025, Conrad was living with his girlfriend and their ten-month-old son in Conrad’s home in Wickliffe, Ohio. In April 2025, Conrad and his girlfriend were involved in a verbal altercation. After the girlfriend allegedly damaged Conrad’s PlayStation console in the basement, Conrad called 911. He informed the dispatcher that he would be armed “because the cops are coming in here.” The dispatcher responded, “Do not pick it up with your hands, okay?” Conrad stated, “Absolutely.” After ending the 911 call, Conrad armed himself by holstering a handgun on his right hip and then went upstairs to await law enforcement.

When the first officer arrived, Conrad observed him approaching the front door on foot, at which point Conrad opened the door for the officer and informed him that he was armed. The officer responded by stating “pardon me” or “excuse me,” and Conrad responded again that he was armed. The officer saw the firearm on Conrad’s hip and informed him that he was going to relieve him of the gun. Conrad initially refused, stating, “No you’re not,” and he changed his stance by turning his right hip away from the officer. Conrad then motioned to or placed his hand on his gun, at which point the officer drew his own firearm. After loudly arguing as to whether Conrad was permitted to be armed, Conrad raised his hands and told the officer to take his gun. Approximately 23 seconds elapsed between the officer entering the home and the officer disarming Conrad.

After disarming Conrad, the officer spoke with him for several minutes regarding his decision to arm himself. During this conversation, Conrad indicated he had armed himself because he believed men were typically arrested when police were called for domestic matters, and he wanted to “eve[n] the playing field” because he was unsure how officers would respond and did not trust them. After speaking with Conrad, the first responding officer joined other officers who had arrived and were speaking to Conrad’s girlfriend in the basement. The girlfriend indicated that Conrad had pushed her, and she fell back, bumping her hip against a table, during their dispute.

Conrad was acquitted of domestic violence, but convicted of violating R.C. 2921.31(A), which provides:

No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.

The court reversed the conviction, on the grounds that the trial court “erred in failing to instruct the jury that the Second Amendment to the United States Constitution, Article I, Section 4 of the Ohio Constitution, and R.C. 2923.12(C)(1)(d) each independently supplied a ‘privilege’ within the meaning of R.C. 2921.31(A)”:

The “without privilege” element … is a substantive element of the offense, and the State bears the burden of proving its absence beyond a reasonable doubt….

Two Ohio appellate decisions confirm that constitutional rights are themselves sources of privilege within the meaning of the obstruction statute. In State v. Robinson (Ohio App. 1995), the First District discussed a defendant’s refusal to consent to a warrantless entry into his home. The court stated: “privilege is a defense to a charge of obstructing official business, and an obstruction charge requires proof that the official be obstructed ‘in the performance of his lawful duties.’ … [T]he Fourth Amendment confers the right to refuse consent to enter. The assertion of that right cannot be a crime.” Robinson applies the relevant frame: a constitutional right of refusal cannot be repurposed as the actus reus of an obstruction prosecution, because the official whose order is refused is not, in that circumstance, performing a “lawful duty,” and the privilege element of the offense is satisfied by the defendant’s exercise of the constitutional right.

The Tenth District applied the same principle in State v. Dickman (Ohio App. 2015). The court held that “[a] predicate for the crime of obstruction of official business is that the official business be an ‘authorized act.'” Where the underlying official act exceeds the officer’s lawful authority, the court held, the “assertion of [constitutional] rights was not a basis to suspect that he had committed a crime.” Dickman thus articulates the converse of Robinson: where the officer’s command is itself unauthorized, the defendant’s assertion of constitutional rights cannot supply the basis for criminal liability under R.C. 2921.31(A). Robinson and Dickman together stand for the proposition that the “without privilege” and “lawful duties” elements of R.C. 2921.31(A) are interlocking and constitutionally significant….

[Conrad’s] possession of a holstered handgun in his own home for self-defense is conduct that sits at the very core of the right Heller identified. The Second Amendment, as construed by the Supreme Court in Heller, McDonald, Bruen, and Rahimi, “confers” upon him—to use Robinson’s phrase—the right to that possession…. The Ohio Constitution [also] provides: “The people have the right to bear arms for their defense and security ….” … Ohio’s constitutional guarantee is no less protective than its federal counterpart in the in-home context. [And Ohio R.C. 2923.12(C)(1)(d)] expressly exempts from the concealed-carry prohibition “[a] person’s … storage or possession of a firearm … in the actor’s own home for any lawful purpose.” This is an express statutory grant of authority to possess a firearm in one’s own home, which falls squarely within the definition of privilege as provided in R.C. 2901.01(A)(12).

The General Assembly has further declared in R.C. 9.68(A) that “[t]he individual right to keep and bear arms” is “a fundamental individual right that predates the United States Constitution and Ohio Constitution, and … a constitutionally protected right in every part of Ohio….” While R.C. 9.68 is principally directed at preempting conflicting local ordinances, it confirms the legislative judgment that the right is “fundamental” and “constitutionally protected”—language that bears directly on whether the corresponding statutory exemption qualifies as “privilege” under R.C. 2921.31(A).

Each of the three sources Conrad identified—the Second Amendment, Article I, Section 4, and R.C. 2923.12(C)(1)(d)—qualifies as a source of “privilege” to possess a firearm within the meaning of R.C. 2921.31(A) under the statutory definition…. However, the trial court gave only the OJI [Ohio Jury Instructions] definition tracking R.C. 2901.01(A)(12)—that “privilege” is any “immunity, license, or right conferred by law” or “bestowed by express or implied grant.” That instruction states the generic statutory definition of privilege.

The jury heard what privilege means in the abstract. A jury cannot be expected to determine, as a matter of legal interpretation untaught, whether a constitutional right is “conferred by law” within the OJI sense or whether an Ohio statutory exemption qualifies as a “right bestowed by express grant.” Moreover, a jury cannot be expected to determine when such a right yields to a seizure by law enforcement—whether such a seizure exceeds the officer’s lawful duties. Those are questions of law for the trial court to resolve through proper instruction, not questions of legal exegesis for the jury to undertake without guidance….

A properly instructed jury—told that the Second Amendment, Article I, Section 4, and R.C. 2923.12(C)(1)(d) each independently confer a right to possess a firearm in one’s own home—would have had a legally supported path to a finding that the State failed to prove the “without privilege” element beyond a reasonable doubt. The jury was deprived of that path, and the conviction cannot stand.

We emphasize the limited scope of our holding. We hold only that, on the record before us—where Conrad is a non-disqualified person under R.C. 2923.13, was inside his own residence at all relevant times, and possessed a holstered firearm during a 911-initiated police encounter—the constitutional and statutory sources of privilege he identified entitle him to a specific instruction on those sources.

The privilege we recognize today is a privilege of possession subject to lawful disarming. Nothing in this opinion should be read as conferring any right to physically resist a lawful police order or to draw or brandish a firearm in the presence of an officer, or to use a firearm in a manner that itself constitutes a separate offense. The constitutional right to keep a firearm in one’s home for self-defense, recognized in Heller, and the statutory exemption in R.C. 2923.12(C)(1)(d), confer a right to have the firearm.

We add one further clarification, because the trial record may otherwise invite confusion on remand. An officer’s knowledge at the moment of the order to disarm bears on the lawfulness of that order under the Fourth Amendment. The record reflects that Conrad’s explanation of his reasons for arming himself—that he wished to “eve[n] the playing field” with the responding officers—was given to the officer only after the disarming was complete, in a post-disarming conversation, and was offered again at trial.

That sequence is significant, as the explanation cannot retroactively supply the articulable basis for the order; under Terry v. Ohio (1968), the constitutional sufficiency of an investigative seizure is judged by the facts known to the officer at the moment of the seizure. On remand, the jury must be instructed on the privilege framework with sufficient particularity to perform its factfinding role.

Our holding is narrow. We do not hold that the Second Amendment, Article I, Section 4, or R.C. 2923.12(C)(1)(d) confers any right to physically resist a lawful police order, nor do we resolve whether the officer’s seizure of the firearm in this case was itself a lawful exercise of authority.

We hold only that, where the State’s prosecution under R.C. 2921.31(A) places the “without privilege” element squarely at issue, and where the defendant has identified specific constitutional and statutory sources of privilege supported by the evidence, the trial court must instruct the jury on those specific sources, and, where the facts suggest that the privilege yielded to seizure by a police officer, the trial court must also instruct the jury as to the standard applicable to determine the lawfulness of the seizure. The generic OJI definition is necessary but not sufficient….

The court also concluded that Conrad could indeed be retried, because enough evidence was introduced for a properly instructed jury to convict (that’s the standard as to whether the Double Jeopardy Clause allows a retrial following the reversal of a conviction):

Viewing the evidence in the light most favorable to the State, the record contains testimony that, the officer was first to respond to the domestic dispute. Upon entering Conrad’s home, he informed Conrad that he was going to relieve him of his holstered firearm. Conrad verbally refused, turned his armed hip away from the officer, and placed his hand on the holstered firearm; that the officer drew his sidearm in response and testified he was “rattled” and nearly discharged his weapon; that the standoff persisted for approximately twenty-three seconds before Conrad complied; and that the officer thereafter spent additional time deescalating the encounter by ascertaining why Conrad had armed himself. Viewed in a light most favorable to the State, a rational trier of fact, could have found each essential element of R.C. 2921.31(A), as set forth in our discussion of the third assigned error, proven beyond a reasonable doubt.

We hold only that the evidence at the first trial was legally sufficient to permit a rational juror to convict; we do not hold that conviction was required, nor do we resolve the question—properly preserved for retrial—whether the officer’s order itself constituted the performance of a “lawful duty” within the meaning of R.C. 2921.31(A)….

Joseph R. Klammer (The Klammer Law Office, Ltd.) represents Conrad.