Debate Forum 12/03

Debate Forum 12/03

Debate Center: Ohio gun bill seeks to break new ground in self-defense

 By Alex Culpepper

 
Illustration: Paul Fell

Killing in self-defense has had a varied heritage throughout history, depending on where in the world you lived. The notion of “personal defense” was even different from what we have today. In ancient Rome, if one person harmed another, it was also an assault on the victim’s whole family and the head of the household in particular. In Anglo-Saxon England, no difference was made between justifiable and non-justifiable homicide. Back then, if someone killed a person – even in self-defense – by law, the violator either paid a huge chunk of cash to the grieving party or essentially took on nearly all the victim’s relatives who would search town and country with swords in their hands and vengeance on their minds. By the 1700s, some homicide was justifiable, and the victim not only could use a weapon on an attacker, but also chase after him if desired. Time has tempered the patterns of justice and the nature of self-defense. Laws dealing with self-defense have changed as well with the availability of guns and people carrying them.

The issue of self-defense has been the center of recent legislation in Ohio. The Ohio House recently voted to pass new self-defense measures, also known as variations of the “stand your ground” law.

In House Bill 203, Ohio’s laws no longer require a person to retreat before using deadly force in self-defense, regardless of where he or she is and as long as they are a licensed gun carrier. Under previous law, also known as the “Castle Doctrine,” a person was granted the right to use deadly force, but only in his or her home or vehicle. The person acting in self defense must also prove he or she truly acted in self-defense. The law also alters the background check system and training requirements and recognizes out-of-state concealed carry permits.

Supporters of the bill say this is a necessary extension of a person’s natural right to self-defense and people should not be required to first elude an attacker at the expense of safety. The sponsor of the bill called it a life-saving measure, and further said a person “attacked by a criminal should not face a prosecutor.” Supporters also add even if the use of deadly force occurs, the person pulling the trigger must establish the act as necessarily defensive.

Opponents of the bill say the “Castle Doctrine” works just fine for allowing people to defend themselves. Some have labeled the new proposed law as the “kill-at-will-bill” and say “stand your ground” will simply increase homicides, as shown by recent shooting cases. Opponents also say this change in law will encourage people to shoot to kill because they can simply eliminate the other witness, making prosecution less likely. They go on to say defense attorneys can use the stand your ground defense for practically any violent crime involving a gun.

Currently, a person’s home or car is his or her castle, and lethal defensive action is a right. That law, however, may change as it passes through the legislative process and allow for a broader realm where lethal defensive action can take place. Some people believe this a bad idea and opens a door to increased murders. Others say a person has a natural right to defend himself or herself, no matter where they are.

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

 

Debate Forum Question of the Week:

 On Nov. 20, the Ohio House passed a vote to make Ohio the twenty-third state to include the “stand your ground” initiative in state gun law. Should “stand your ground” be law in Ohio?

Debate Left: Is Ohio about to enact a ‘kill at will’ law?

 By Marianne Stanley

 
 I sure hope all moderates of both parties are taking their vitamins and supplements in the face of all the energy depletion caused by our increasingly crazy society.

When we already have the right to defend ourselves with deadly force if necessary in the face of an attack on our person, our home or while we’re in our car, a strong extremist marketing campaign is working overtime to convince us this is not enough and we need to do more to facilitate easy killing of our fellow man. Oh sure, it’s not exactly worded that way, but a careful reading of the proposed new Ohio legislation makes it clear the final barriers to a return to the Wild West and vigilantes are being removed under the guise of good law.

Contrary to what we’re being told, there is no “duty to retreat” under current law; there is only a duty to retreat “UNLESS it poses a danger to the person under attack.” Big difference.

What most of us haven’t been told about this new legislation is it’s really a dream-come-true for the gun industry, but a full-blown nightmare for our communities. This law calls for drastic cuts to the amount of training required for concealed carry permits, lowering the training hours from 12 to four and entirely eliminating the two-hour target range mandate. As gun safety instructor Kevin Jones said, “You can’t teach someone to hold a gun right in four hours; 12 hours truthfully is not enough.”

Ah, and a final bonus of this new law is veterans can skip the training requirements in receiving their permits. Never mind a majority of returning Iraq and Afghanistan vets have acquired some form of mental dysfunction, usually in the form of post traumatic stress syndrome or head trauma, already making them susceptible to unpredictable outbursts of anger or violence, depression, suicide and low frustration thresholds. Jones said, “While I applaud and honor anyone who has served, this should not be a free pass for lack of proper training and practice. This is a disservice to every potential student citizen, and supporter of gun rights. ”

True to form, rational discussion is out of the picture. Instead, we are once again seeing the polarization driven by the talking heads and corporate media who are portraying this as a step in the right direction so we can be “safer.” In what universe does the proliferation, the explosion of deadly weapons among the general population, make us safer?

What the enactment of this law really will do is hand a permission slip to every aggressive person in Ohio to shoot first and have little to worry about afterwards. A claim of feeling threatened is enough to haul out the gun and pull the trigger. In those cases, who is around to dispute the claim the shooter was acting in self-defense? Uh, nobody. The other guy is dead.

It would be different if there were no laws on the books allowing for a person to use deadly force to protect one’s self, but that’s not the case. There isn’t a judge in the land who is not familiar with our nation’s standard “castle laws,” allowing individuals to use deadly force to protect their families, homes or themselves.

Until we show ourselves to be a rational society without entrenched bad policies and faulty attitudes about issues of race, gender or sexual orientation, the last thing we need is a relaxation of weapon policy. The problem is we have moved so far toward irrational thinking driven by fear and clever marketing, no extreme policy is seen as extreme anymore. Word is the next move is to allow concealed carry weapons in every building and park and public place. Shades of Gunsmoke! We will be surrounded by people who are so fearful and so paranoid, anything could trigger – no pun intended! – them into firing a gun at us for any reason, real or imagined.

Just as George Zimmerman recently claimed to have put a gun to his girlfriend’s head because he felt threatened by the unarmed woman in her own house, lunatics or near-lunatics everywhere – and they are everywhere – will have no reason to worry about their anger management issues.

No one has ever been required to turn and run when his or her life is threatened. No one has been sent to prison if they were found to have acted in self-defense. Isn’t that enough? There is a timeworn but excellent saying: “If it ain’t broke, don’t fix it.” This is one of those situations. Our laws permitting self-defense are enough.

Even Miami, Fla. Chief of Police John Timoney called the “stand your ground” law unnecessary and dangerous: “Whether it’s trick-or-treaters or kids playing in the yard of someone who doesn’t want them there or some drunk guy stumbling into the wrong house, you’re encouraging people to possibly use deadly physical force where it shouldn’t be used.”

In a country where racial tensions remain high, how handy is it laws like this are sweeping the country? Let’s not make it any easier to increase pain and suffering for this segment of society.

All guns back in the toy box, please, and let’s put civilized behavior and laws back into our civilization before civilization no longer exists in our once-great country.

 

Marianne Stanley is an attorney, college professor and former journalist who believes many of our nation’s ills could be cured if our children were taught critical thinking skills beginning at the elementary level and continuing through middle and high school. She can be reached at MarianneStanley@DaytonCityPaper.com.

 

Debate Right: ‘Stand your ground’ adds to Ohioans’ self defense

By Rob Scott

 
Gun laws are becoming more controversial and getting added attention due to recent events from the school and movie shootings, as well as other isolated incidents. 

The foundation of U.S. gun laws and regulations is the Second Amendment to the U.S. Constitution which states: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

The U.S. Supreme Court determined in 2009 in District of Columbia v. Heller the Second Amendment protects an individual’s right to possess and carry firearms. The court, in 2010, clarified in McDonald v. Chicago by limiting the amendment’s impact to a restriction on the federal government, expressly holding the Fourteenth Amendment applies the Second Amendment to state and local governments to the same extent as the Second Amendment applies to the federal government.

Included in the debate are “stand your ground” state laws, having received a fair amount of media attention mainly due to the infamous George Zimmerman trial in the state of Florida. By a jury, Zimmerman was acquitted of murder after fatally shooting 17-year-old African American Trayvon Martin. His defense was he was defending himself under the “stand your ground” law in Florida.

A “stand your ground” law is a type of self-defense law giving individuals the right to use deadly force to defend themselves without any requirement to evade or retreat from a dangerous situation. Under these legal concepts, a person is justified in using deadly force in certain situations and the “stand your ground” law would be a defense or immunity to criminal charges and civil suit.

“Stand your ground” is different from the current Ohio law, according to the nonpartisan Ohio Legislative Service Commission. It “specifies that … a person need not retreat if the person lawfully is in the person’s residence, the person’s vehicle or the vehicle of an immediate family member.”

What critics of the “stand your ground” bill in Ohio do not understand about self-defense is there are already viable affirmative defenses to many crimes like assault, felonious assault and murder. The key difference is whether you are in your home, under direct deadly threat or have the ability to retreat.

Ohio law has recognized no person is obligated to do nothing while an aggressor attacks them, and no person must remain idle when he or she has an objectively reasonable belief they are to suffer imminent serious harm or death. There has always been the right to meet offensive force with defensive force.

The Ohio Supreme Court in 2002 in State v. Barnes rearticulated a defendant asserting self-defense is required to prove three things by a preponderance of the evidence:

(1) The defendant “was not at fault in creating the situation giving rise to the incident.” Meaning someone cannot start the fight and then claim self-defense when the other person dies. A defendant must not have been responsible for causing the altercation in order to validly assert self-defense.

(2) The defendant “had a bona fide belief that he was in imminent danger of death or great bodily harm and the only means to escape such danger was in the use of such force.” The defendant must have reasonably believed, under the circumstances as they knew them, they were about to suffer serious physical harm or death and the use of force was necessary to thwart imminent harm.

(3) The defendant “did not violate any duty to retreat or avoid the danger.”

Taken together, these points underline a person has no duty to retreat from their residence or vehicle when confronted with the danger of physical harm. Moreover, there is a rebuttable presumption the defendant acted in self-defense whenever they inflict harm on the victim in their residence or car and the victim was unlawfully entering or within the residence or vehicle.  In other words, the state bears the burden of proving the defendant did not act in self-defense if the circumstances fall within this doctrine.

In short, the Ohio General Assembly has determined persons within their residence may use force, even deadly force, whenever they reasonably believe they are about to suffer serious physical harm or death, regardless of whether they could have run out the back door. There is no duty to retreat from your “castle.”

The Ohio House voted 62-27 last week approving House Bill 203 despite massive protests from anti-gun groups. The bill also makes concealed-carry licenses in Ohio and certain other states valid across state lines. Republicans said the bill brings reasonable safety protections to Ohioans. Democrats predicted it would foster death and violence. The bill now heads to the Ohio Senate.

“Stand your ground” laws expand on the Castle Doctrine and the affirmative self-defense rule allowing for the protection of oneself without the required duty to retreat. This is a needed feature for the protection of law-abiding Ohioans. Ohio would join the majority of states by either recognizing the defense in common law or statutorily passing a measure.

Rob Scott is a practicing attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or www.gemcitylaw.com.

 

 

 

 

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