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Ohio lawmakers introduce 'stand-your-ground' bill

Discussion in 'Legal' started by Midwest, Sep 23, 2017.

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  1. Midwest

    Midwest Member

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    Ohio could become the 25th state to have a "stand your ground" law if Senate Bill 180 becomes law. Neighboring states; Indiana and Kentucky already have "stand your ground" laws. Currently, Ohio has the “castle doctrine” law. SB 180 Seeks to bring Ohio's self defense laws up to date according to co-sponsor Senator Joe Uecker-R of Miami Township.

    Ohio lawmakers introduce 'stand-your-ground' bill

    http://www.fox19.com/story/36422383/ohio-lawmakers-introduce-stand-your-ground-bill

    "Senate Bill 180 would eliminate the duty to retreat and allow gun owners to use deadly force against would-be assailants in self-defense. The proposal also shifts the burden of proof to the prosecution that shooters did not act in self-defense."
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  2. Kendahl

    Kendahl Member

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    Stand your ground isn't that important. Even in duty to retreat states, you need to retreat only if it's 100% safe to do so. 99% safe isn't good enough. For example, since you can't outrun a bullet, you have no duty to run from an armed mugger instead of shooting him.

    Shifting the burden of proof is a big deal. In every other state, once a claim of self defense has been accepted as a possibility for the jury to consider, the burden is on the prosecution to disprove it beyond a reasonable doubt. Under current Ohio law, the prosecution only has to disprove it by a preponderance (more than 50%) of the evidence. The result is that, if you don't claim self defense, the threshold for conviction is beyond a reasonable doubt. If you do claim it, the threshold is reduced to preponderance of the evidence. Not good for the defender.
     
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  3. rtroha

    rtroha Member

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    You would think that since Ohio has a super majority of Republicans in the General Assembly that bills like this would be a slam dunk. But Ohio has a lot of moderate Republicans who are very wish-washy about gun rights. Ohio is only one of ten states that require notification and HB 142 was introduced earlier this year to entirely remove notification. The Republican leadership brought in a substitute bill that no longer removes notification but instead tinkers with the notification procedure and lowers the penalty for failing to notify.

    This happened after the Ohio FOP, Buckeye State Sheriffs Association and the Ohio Association of Chiefs of Police all testified against the original bill.
     
  4. Frank Ettin

    Frank Ettin Moderator

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    Actually, Stand-Your-Ground can be very important. While in duty-to-retreat States retreat must be 100% safe, dealing with that in real life terms can be problematic.

    So while in the midst of a tumultuous, rapidly unfolding, high stress, violent encouter you might have been absolutely, and correctly, unaware of a safe retreat, a prosecutor, grand jury, or jury at your trial, considering the event at their leisure with the benefit of hindsight can often come up with all sorts of ways to retreat that you should have recognized. And now whether a reasonable person in your situation should have recognized a safe retreat can become a major point of contention.

    BTW, my State, California, is a no-duty-to-retreat State. There's no duty to retreat here because of case law.
     
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  5. Twiki357

    Twiki357 Member

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    BTW, my State, California, is a no-duty-to-retreat State. There's no duty to retreat here because of case law.

    Thank you for hat little tidbit. I have wondered for a while how that came to be in California knowing the UNlikelyhood of it ever passing in the legislature.
     
  6. MarkDido

    MarkDido Member

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    The problem with that is, who decides if you were 100% not able to retreat?

    It will be someone who was not there at the time.

    (Sorry for duplicating your post Frank)
     
  7. Spats McGee

    Spats McGee Moderator

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    How sure are you of this? My knowledge of criminal law (in which I'm moderately confident) leads me to believe that this might not be the case. With the caveat that I'm not licensed in Ohio, my hunch is that SD would have to be disproved by a preponderance, but that the elements of the underlying crime would still have to be proved beyond a reasonable doubt.

    Court cases are always decided by folks who were not there at the time. If they were there, they'd be witnesses instead of jurors.
     
  8. Kendahl

    Kendahl Member

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    The Law of Self Defense, third edition, by Andrew Branca, page 36, 3rd paragraph: "In Ohio, however, the defendant must prove self defense by a preponderance of the evidence. So while in every other state you need only create 'reasonable doubt,' in the jurors' minds, in Ohio you must show them that your self defense story is 'more likely than not.' This is a huge difference, and makes a successful claim of self defense much more difficult in Ohio than in any other state." Branca makes the same assertion in his Level 1 DVD class.

    By "underlying crime", do you mean the defender's use of force against the aggressor? According to Branca, a claim of self defense necessarily includes the acknowledgement that you did use force. If your claim of self defense fails, the prosecutor has an easy conviction based on what amounts to a confession.

    Before reading his book and taking his Level 1 class, I would not have known how it works in any state. I'm trusting that he is competent and has done his research. Can someone from Ohio make a definitive statement?
     
  9. Spats McGee

    Spats McGee Moderator

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    Yes, but there's animportant difference between what you wrote and what Branca wrote. Here's what you wrote:
    Branca's words support my belief: According to Branca, SD is an affirmative defense (burden on the SD Shooter to prove by a preponderance) in Ohio, but the standard of proof to convict the SD Shooter has not actually changed. The prosecutor must still carry that burden beyond a reasonable doubt.
    Yes, that's exactly what I meant by "underlying crime," and yes, the prosecutor has what amounts to a confession: a statement that the SD Shooter intentionally shot another human. I just want to be sure that it's clear to everyone that claiming SD may put an additional piece of evidence (the admission of having shot someone) in the hands of the prosecutor, the standard of proof to convict the SD shooter remains the same: BARD.
     
  10. Kendahl

    Kendahl Member

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    Agreed that self defense is an affirmative defense to use of force that would otherwise be illegal. Since the defendant has already acknowledged using force, all the prosecutor needs to do is disprove self defense. Per Branca, in Ohio, the burden of proof is the same for both sides -- a preponderance of the evidence. In every other state, the burden is lopsided in favor of the defendant. The prosecutor must disprove self defense beyond a reasonable doubt whereas, to win acquittal, the defendant only has to create reasonable doubt.
     
  11. Frank Ettin

    Frank Ettin Moderator

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    First, Branca is a knowledgeable attorney with solid experience. I know that Massad Ayoob has recommended Branca's classes. I've taken his first level class and am signed up to take the second level.

    Second, the respective burdens of (1) production (producing evidence); (2) proof; and (3) persuasion are very technical. However, in general terms --

    1. If a defendant is on trial for a crime involving violence against another person, and if the defendant is claiming self defense or justification to avoid criminal liability, he needs the judge to instruct the jury about self defense. The judge isn't going to do that just because the defendant asks. There will need to be some amount of evidence supporting his claim of self defense. How much, or what type, of evidence will have to be in the record in order to require the judge to give a self defense instruction will vary from State to State.

    2. So in some States a defendant has the burden of producing sufficient evidence to make a prima facie (on its face) case of self defense.

    3. In other States, such as New York, the defendant can get a self defense (justification) instruction if as another member who is a New York lawyer pointed out a while ago (emphasis added):
    4. If the defendant can get his self defense instruction, the prosecution must generally overcome the claim of justification in order to get its conviction. Generally the burden of proof on the prosecution in such cases will be "beyond a reasonable doubt."

    5. In a few States, however, the defendant will have the burden of proving justification by a preponderance of the evidence.

    6. But the practical reality is that, in any case, the less convincingly the evidence, taken as a whole, supports the defendant's self defense claim, the easier it will be for the prosecution to overcome the defendant's claim of justification. And if the defendant has a serious hope to escape conviction on the basis of justification, he will, as a practical matter, want to assure that there will be sufficient, convincing evidence supporting his claim.
     
  12. Spats McGee

    Spats McGee Moderator

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    I do not know Branca personally. That said, I've run across his work often enough while studying gun laws to know that he knows his materials.

    Without getting too "inside baseball," and admitting that I haven't read Branca's work, I think that the takeaway here is this: (1) As a practical matter, Branca is right. In claiming SD, the SD Shooter has effectively said, "I intentionally shot someone." That's a crime, subject to certain defenses, such as SD. (2) However, and without getting too "inside baseball," it's important to understand that there are constitutional limitations on shifting the burden from: (a) the prosecution to prove guilt; to (b) the defendant to prove innocence.

    ETA: Branca's book is available in my local library, so I'll read it as soon as it gets in.
     
    Last edited: Sep 27, 2017
  13. C0untZer0

    C0untZer0 Member

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    I like the Illinois law - which has never been a magnet for the "SYG" "Make My Day" nonsensical controversy.
    I know that some people will parse every sentence of a law and nit pick it but if the proof is in the pudding, then the way that this law is written has produced good results over the course of more than a few decades. It has resulted in no controversy that I know of and it has stymied civil lawsuits from the deceased assailants' relatives.

    .
     
    Last edited: Sep 27, 2017
  14. Kleanbore

    Kleanbore Moderator

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    In what material respects do you believe that this part of Illinois law differed from the law in other states?

    Why would you believe that?

    There is no duty to retreat in Illinois, but that is not spelled out in the statute per se. It was established in superior court rulings, which would not have happened had someone not been convicted on the basis of his failure to meet the common law requirement of a duty to retreat, and successfully appealed the verdict.
     
  15. C0untZer0

    C0untZer0 Member

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    I can't compare it to 49 other state laws, but let's take the South Carolina law - as an example.

    In 2006 South Carolina enacted a law called 'Protection of Persons and Property Act'. Twice in the wording of the bill they mention "castle doctrine", once they mention "duty to retreat" and once they mention "stand your ground"



    SECTION 16-11-420. Intent and findings of General Assembly.

    (A) It is the intent of the General Assembly to codify the common law Castle Doctrine which recognizes that a person's home is his castle and to extend the doctrine to include an occupied vehicle and the person's place of business.

    Section 16-11-440.


    A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:

    (1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and

    (2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.

    (C) A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60.

    You qualified your question by saying "materially" different. I would say that the Illinois law is just different in that it doesn't use the terms or phrases "caste doctrine", "duty to retreat" or "stand your ground". I believe that the absence of these phrases has resulted in the Illinois law generally flying under the radar and not attracting the attention of those people who vehemently oppose and protest "Stand Your Ground" and Castle Doctrine" type laws.

    I can't say in what specific way the Illinois law is different from all 49 other states, but the inclusion of "
    to defend himself or another against such other's imminent use of unlawful force" and "is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony." - covers a lot of ground - emphasis on "Unlawful Force" and "Forcible Felony" Illinois uses two broad categories instead of creating very specific wording within the law itself for instances such as "attempting to remove another person against their will" or "unlawfully entering"
     
    Last edited: Sep 27, 2017
  16. C0untZer0

    C0untZer0 Member

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  17. Kleanbore

    Kleanbore Moderator

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    One should never attempt to interpret the laws of any state solely on the basis of the words in a single statute.

    Trying to interpret a particular law in isolation by using lay dictionary definitions can lead to erroneous conclusions. Case law—decisions rendered by high courts in the interpretation of the laws—and relationships among other pertinent laws and constitutional principles can have as much to do with the real meaning of the law as the words in a single statute.

    As an example, the "duty to retreat" is not mentioned at all in the laws of a number of states. However, the duty existed at Common Law, and almost all of our states adopted the common law framework that was in effect at the time that they become colonies or states, without specifying any detail about what that meant.

    Thus, a duty to retreat existed at one time virtually everywhere, and it remained in effect until such time that the requirement was obviated by statute (as it was in Missouri, very recently, and in Texas, a few years back) or by appellate court rulings, as in Illinois and a number of other places.

    The history of the "castle doctrine" is a little murkier. In some states, any unlawful entry brings the law into effect, while in others, entry must be made "with force" or "tumultuously". Illinois falls into the latter category.

    In some cases, porticos and garages are covered, while not in others. Occupied cars? Depends on where you are.

    By the way, while the Illinois statute does provide for the use of force "to defend [oneself] himself or another against such other's imminent use of unlawful force"--and that is true everywhere.
     
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