In my defense

Protecting your home, yourself

By Isabel A. Suarez

I was a victim of a home invasion approximately one year ago. Thankfully my family was not home at the time. I also recently read that from February 19 to 20, a gun show will be held at Hara Arena. This has gotten me thinking about my rights as a homeowner. I hear horror stories about people defending themselves in their own home and getting sued by the criminal.  Please explain my rights?
­Thank you,
Concerned Citizen

Dear Concerned Citizen,
I am sorry to hear about your experience with the home invasion. I hope you and your family remain safe. First, let’s talk about gun rights generally. As I am sure you are aware, gun rights are very controversial and a potentially explosive topic (no pun intended). Gun rights in America begin and end with the Second Amendment. Ratified on December 15, 1791, the Second Amendment 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.” You have the right to keep and bear arms (arms = guns, or as my law partner says, it’s not a gun, it’s a weapon).
Actually, it is not that clear. Since its inception, arguments have constantly been made that the Second Amendment actually protects the militia’s (think National Guard) right to keep and bear arms, not the individual. Well, a bunch of so-called smart people, judges, attorneys, presidents, lawmakers, etc., have argued back and forth about its meaning. However, the Supreme Court of the United States had never set the record straight on whether the Second Amendment is an individual or a militia right … until 2008, 217 years after its passage. The Supremes, in D.C. v. Heller held that the Second Amendment was an individual right, and that you have a right to lawfully defend your home (the Court said so much more, but that should be enough to answer your question). Case closed?  No, not quite, not when you are dealing with politicians and lawyers.
Illinois, which had a law similar to D.C., argued that the Supremes’ decision did not apply, since D.C. is not a state. In 2010, the Court ultimately ruled that its decision applied to the states as well. So, after 219 years, it is official – we have the right to own a gun and use it in the lawful defense of our home (keep in mind, deadly force can never be used to defend only property Katko v. Briney).
Now to address your right to protect your home … the Supreme Court stated (and common sense has told us ever since we read the Bill of Rights) that you are allowed to own a gun and defend yourself. However, to be prudent, let us look at Ohio law.
Until recently, there was confusion about whether you could defend yourself in your own home or whether you had to remove yourself from the situation, if possible, in order to avoid the use of deadly force. Under the Castle Doctrine, a person’s home is his “castle” and he always has a right to defend it – we all like that. In 2008, Ohio law adopted this Castle Doctrine. However, as early as 1883 (see State v. Peacock, 40 Ohio St. 333) the Ohio Supreme Court held that you may defend yourself within your own residence, without having to retreat and worry about criminal charges. So, why all the fuss in 2008? The prior law protected people in criminal cases. The new law protects people from both criminal and civil liability.
Before 2008, if you shot someone in a residence, you could be found liable and be forced to pay money out the nose. The problem originated in the interpretation of the law. The pre-2008 law stated that an “owner, lessee, or renter of real property or a member of the owner’s, lessee’s, or renter’s family who resides on the property” may defend themselves, and be immune from civil liability. However, what does “reside” really mean? The 2008 law clarifies that you may use self-defense, and not worry about getting your pants sued off, if you are “lawfully … in that person’s residence.” Catch the difference? Pre-2008, you had to satisfy specific requirements of being an owner of the property, renter, renter’s family, etc., very confusing stuff. Now, if you are lawfully in the residence, you can defend yourself or others, and not worry about being sued. Hope that clears everything up. Get a license, buy a gun, defend away!
¡Buena suerte!

Legal disclaimer: The content herein is for entertainment and informative purposes only, and should not be interpreted as a legal consultation. Readers act on this information solely at their own risk and are advised to seek an attorney if legal consultation is needed. The accuracy of this information cannot be guaranteed as laws are subject to change. Neither the author, the Dayton City Paper, nor any of its affiliates shall have any liability stemming from this article.

Isabel Suarez is a Cuban-born American who has been practicing law since 1984. Her diverse multicultural and multilingual practice Suarez & Carlin in Old North Dayton especially serves the regions working poor. Isabel is also a board member of and volunteer for the Ohio Intervention Program. You can reach Isabel by email at isabel@suarezcarlin.com or by calling her office located at 765 Troy St. in Dayton at (937) 258-1800.

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