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Home Defense Law Takes Effect in Ohio:

Starting today, Ohio law embraces the "castle doctrine" — the idea that your home is your castle — and homeowners who use force to protect their homes against intruders will be presumed to have acted in self-defense. More here.

Glenn W. Bowen (mail):
Presumed innocent.
9.9.2008 9:50am
theobromophile (www):
YAY! Should be interesting to see if home invasion and armed robbery stats change in Ohio (vis-a-vis neighbouring areas) in coming years.

Glenn,

No, they just presume that a defendant has met his own burden of proof for an affirmative defence, which only matters once the government has overcome its own burden of proof.
9.9.2008 10:06am
J. Aldridge:
I like this law... beats making up rights to do so under the 2A any day.
9.9.2008 10:07am
Big E:
What if cops with no-knock warrants start busting down your door?
9.9.2008 10:11am
hawkins:

What if cops with no-knock warrants start busting down your door?


There should always be a presumption that a homeowner does not know they are cops if they barge in without first knocking.
9.9.2008 10:15am
Glenn W. Bowen (mail):
perhaps of interest- years ago, in Ohio, a family member of mine was told by a police chief that, in situations like these, make sure the bad guy is in your house, and make sure there's only one side to the story.

verbatim.
9.9.2008 10:23am
Mad Max:
Enforcer droids may now destroy all humanoids!
9.9.2008 10:27am
Houston Lawyer:
Glenn

I've heard similar stories in Texas for many years. Make sure he's dead and drag him back into the house if you have to.

However, I can't recall any instance where someone was prosecuted in Texas for shooting a stranger that they thought was trying to break in.
9.9.2008 10:27am
Javert:
Too bad "intruders" doesn't extend to those using eminent domain.
9.9.2008 10:30am
EconGrad:
Big E:
What if cops with no-knock warrants start busting down your door?

In Florida (where we've had this law on the books since October 1, 2005), there is an exception to the castle doctrine expansion:

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.


If they don't announce themselves, they are fair game. The law also says you don't get the benefit of the presumption if:
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity;

So, if you're actually a bad guy, doing bad things, then you won't be protected if you blast 'em. But, if you're a law abiding citizen and the JBT's come and kick in the wrong door, etc., and you blast 'em, well, assuming you survive, you're immune from arrest, prosecution, and civil lawsuits (in Florida).

Maybe a good reason to double check the address on that no-knock warrant before you serve it, eh?
9.9.2008 10:33am
Virginian:

But, if you're a law abiding citizen and the JBT's come and kick in the wrong door, etc., and you blast 'em, well, assuming you survive, you're immune from arrest, prosecution, and civil lawsuits (in Florida).


Because, you know, the police would never lie and say they announced themselves when they really didn't.
9.9.2008 10:38am
Virginian:
In related news, Sarah Brady issues a press release warning that girls scouts selling cookies are at risk of being gunned down if they go door-to-door and "blood will flow in the streets!"

Despite the fact that blood has never flowed in the streets after the loosening of gun laws in any state, the media breathlessly passes along this warning.
9.9.2008 10:45am
theobromophile (www):
In related news, Sarah Brady issues a press release warning that girls scouts selling cookies are at risk of being gunned down if they go door-to-door and "blood will flow in the streets!"

Look, I like Girl Scout cookies much more than the next person, and will do anything to ensure their safe arrival at my doorstep, but that's absurd. I doubt you would mistake a girl ringing your doorbell at 3 in the afternoon with a ne'er-dow-well who is inside your living room at 3 am.

The only danger that Girl Scouts have ever been in is that people will accost them and steal all the cookies. After all, they only come once per year.
9.9.2008 10:51am
martinned (mail) (www):
9.9.2008 11:00am
Deoxy (mail):

Because, you know, the police would never lie and say they announced themselves when they really didn't.

Or plant something to make the case that you were "using the dwelling, residence, or occupied vehicle to further an unlawful activity" - considering that a plastic baggie smaller than a single bullet would probably suffice for this, and that said baggie could easily be dropped by ANYONE who is in the residence and then "found"...

So, the law looks strong, but it still places complete and utter trust in the police to be honest, with no incentive other than their conscience to be so, and great incentive (in some cases) to not be so.

Still, it's a pretty big improvement over the way things were... which is just plain sad.
9.9.2008 11:05am
some dude:
Why isn't the Castle Doctrine in the Bill o' Rights already?
9.9.2008 11:10am
The Cabbage (mail):
Why isn't the Castle Doctrine in the Bill o' Rights already?

It was, but Montgomery Burns and Pancho Villa snuck into DC one night (while FDR was giving away Europe at Yalta) and cut it out of the Bill of Rights. That's why there is no Second Point Five Amendment.
9.9.2008 11:27am
EconGrad:
Virginian:
Because, you know, the police would never lie and say they announced themselves when they really didn't.


Well, if there are still cops around to lie about anything, you're probably dead so it won't matter.
9.9.2008 11:30am
Fat Man (mail) (www):
I doubt that this law changes very much. The case law on self-defense in Ohio was favorable to self defense. It was stated in State v. Williford (1990), 49 Ohio St.3d 247. The following is a highly edited summary of the decision:

Williford, was convicted of voluntary manslaughter in the death of Carter. The conviction was reversed by the court of appeals and the state appealed.

The conviction arose from an altercation between Williford and Carter, initiated by Carter. Carter, a large man, who lived on the same street as the Willifords. The month before the altercation, Williford's wife and Carter had a dispute over a dog.

On the night of November 8, 1986, Carter had been drinking. Carter and a co-worker, were driving down the street. Carter saw Williford in front of Williford's house. He stopped the van. Carter accused Williford's wife of "calling the police on me." The two men went up onto Williford's front porch.

Williford testified that Carter threatened Williford's wife, saying "I'll shut her goddamn mouth permanently." Williford ran upstairs and retrieved a .38 caliber revolver from his bedroom. He came back down and found Carter in the front room of the house. Williford displayed the gun and forced Carter out, onto the porch. When Williford asked Carter to leave, Carter grabbed his gun hand. Williford fired a warning shot. Carter shoved Williford against the porch railing. Williford testified that he shot Carter when Carter attacked his wife, who had come out onto the porch.

On cross-examination, Williford was asked, "Do you think he died from the bullet wounds you gave him to the chest when he was lying on the ground?" Williford answered, "Yes, I do."

Diana Williford, Williford's wife, testified that she saw Carter pushing Williford over the porch railing, and was afraid that Carter was breaking Williford's back. She ran onto the porch and jumped on Carter's back. Carter turned and "picked me up like I was a five pound bag of potatoes, and * * * slung me down hard." While she was trying to get away from Carter, she heard one shot, then "a couple more."

The trial judge charged the jury on murder and the lesser included offense of voluntary manslaughter. The judge gave the standard instructions on self-defense, but he did not instruct the jury that Williford had no duty to retreat from his home, or that there is a privilege to defend members of his family. Williford's counsel objected to the omission of the "no retreat" instruction.

The jury convicted Williford of voluntary manslaughter with a firearm specification. The court of appeals reversed and remanded for a new trial. The state appealed.

H. BROWN, J. In the instant case, we must determine whether the failure to instruct the jury on retreat and defense of family was error, and, if so, whether the errors were preserved for appeal. We answer these questions in the affirmative and affirm the decision by the court of appeals. Under Ohio law, self-defense is an affirmative defense. To establish self-defense, the defendant must show "(1) [he] was not at fault in creating the situation giving rise to the affray; (2)[he] had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of force; and (3) [he] must not have violated any duty to retreat or avoid the danger. " The defendant is privileged to use that force which is reasonably necessary to repel the attack. "If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense."

Williford argues that there should have been a further instruction that he was privileged to defend the members of his family, and that he was under no duty to retreat from his home. Ohio law has long recognized a privilege to defend the members of one's family. ("It is conceded that parent and child, husband and wife, master and servant would be excused, should they even kill an assailant in the necessary defense of each other."); As the court of appeals stated, if Williford, "in the careful and proper use of his faculties, in good faith and upon reasonable ground believed that his wife and family were in imminent danger of death or serious bodily harm . . . [he] was entitled to use such reasonably necessary force, even to the taking of life, to defend his wife and family as he would be entitled to use in defense of himself." Williford presented testimony that Carter was threatening Mrs. Williford with physical harm from the beginning of the altercation. A properly instructed jury, if it believed this testimony, could have found that Williford was acting in defense of his wife throughout the altercation. The failure to instruct on defense of family was error.

In most circumstances, a person may not kill in self-defense if he has available a reasonable means of retreat from the confrontation. However, "[w]here one is assaulted in his home, or the home itself is attacked, he may use such means as are necessary to repel the assailant from the house, or to prevent his forcible entry, or material injury to his home, even to the taking of life." Implicit in this statement of law is the rule that there is no duty to retreat from one's home.

In the instant case, there was testimony that the confrontation took place inside Williford's house and on Williford's porch. Because the jury was not instructed on this rule, it might have believed that Williford was under a duty to retreat from his home. It was therefore error for the court to fail to give this instruction.
9.9.2008 11:37am
Virginian:


In related news, Sarah Brady issues a press release warning that girls scouts selling cookies are at risk of being gunned down if they go door-to-door and "blood will flow in the streets!"



Look, I like Girl Scout cookies much more than the next person, and will do anything to ensure their safe arrival at my doorstep, but that's absurd. I doubt you would mistake a girl ringing your doorbell at 3 in the afternoon with a ne'er-dow-well who is inside your living room at 3 am.



Of course it's absurd, and it's just the kind of absurd statement the Brady Bunch would make. When Florida passed its castle law, the Brady Bunch put up billboards stating that "A new law in the Sunshine State authorizes nervous or frightened residents to use deadly force."
9.9.2008 11:48am
Hoosier:
What will be the impact of the "castle doctrine" upon the moat-digging industry in Cayahoga County?
9.9.2008 11:53am
Celia (mail):

"(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity;"



So is it just me, or does this seem overly broad?

Say sleeping Elliott Spitzer (pre-bust) (or any Joe shmuck who likes to pay for it) (or for argument's sake, some habitual tresspasser) is in his Florida vacation home and the swatters bust in at 3 AM, to the wrong address, unannounced, he shoots them. What then?
9.9.2008 11:58am
Bob from Ohio (mail):
Not Cayahoga, Cuyahoga.
9.9.2008 12:01pm
Glenn W. Bowen (mail):

Houston Lawyer:
Glenn

I've heard similar stories in Texas for many years. Make sure he's dead and drag him back into the house if you have to.


actually, I cleaned up the police chief's advice- he did indeed say, "I don't care if you shoot him in your driveway, drag him into your house.", also.

This to my brother around 1970.
9.9.2008 12:08pm
AntonK (mail):
It's nice to see sanity take hold in Ohio. Now if we could just get a Federal law to cover all States.
9.9.2008 12:19pm
john w. (mail):

actually, I cleaned up the police chief's advice- he did indeed say, "I don't care if you shoot him in your driveway, drag him into your house.", also.

This to my brother around 1970.



I kind of suspect that forensic techniques have improved quite a bit since 1970, so that the "dragging him back into your house" part is VERY unlikely to go undetected nowadays. ... What would that be? Felony evidence-tampering or something?
9.9.2008 12:22pm
EconGrad:
Fat Man,

All that is well and good, and might give you a decent defense after you're charged, retain a lawyer, etc. Then once you beat that (hopefully), the "victim's" surviving relatives sue you for wrongful death (their "poor baby") and you go through it all again in civil court.

These laws are designed to prevent all that in the first place. I haven't read the actual Ohio statutes, but I'm very familiar with Florida's. I have to say, I feel a lot better about my rights vs. the rights of the criminals I may have to defend myself against with the following in place (which is just a portion of our enhanced castle doctrine and self defense laws):

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action [emphasis added] for the use of such force, unless [exception for shooting LE snipped]. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful [emphasis added].

(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
9.9.2008 12:29pm
Glenn W. Bowen (mail):

I kind of suspect that forensic techniques have improved quite a bit since 1970, so that the "dragging him back into your house" part is VERY unlikely to go undetected nowadays. ... What would that be? Felony evidence-tampering or something?


At the time, we gathered he didn't really care if there was evidence in the driveway.

This is what it was: in-coming union trouble at the small shop my brother managed, two "torpedo" types would park in front of his house, follow his wife when she drove w/their children to the store, etc.

Maybe the chief was willing to go the difference because he just didn't like the guys or their methods. Don't know, altogether. Nothing ever came of it.



After all, they only come once per year


So, call me a Girl Scout.
9.9.2008 12:34pm
Glenn W. Bowen (mail):
PIMF:

-make that "Maybe the chief was willing to go the distance"
9.9.2008 12:35pm
Lior:
They haven't gone "castle" all the way: apparently property owners can't insist renters with permits won't bring guns into the property. In other words, they judge the self-defence interests of a renter more important that the property rights of the owner.
9.9.2008 12:52pm
martinned (mail) (www):
@Lior: Well, it is the renter's home, after all, so that seems pretty consistent with the whole "my home is my castle" idea.
9.9.2008 1:03pm
Doc W (mail):
No-knock warrants are incompatible with the right to defend one's home. Anybody smashing in my door in the middle of the night could claim to be the police. And if it is the police, and I have a gun in my hand while asking to check their badges, they'll blow me to kingdom come. The whole no-knock thing stems mainly from the war on drugs, doesn't it?
9.9.2008 1:05pm
Patrick216:
Fat Man:

The problem with Ohio's old self defense rule was that it still required a jury trial to set forth the affirmative defense. That means that in order to claim self defense, you have to actually be tried for murder. And if your self-defense should so happen to have racial or socio-economic overtones (e.g. black man shoots white robber in self defense, or upper middle class person shoots poor person), then you are at the tender mercy of a jury that may or may not impute racial or socio-economic bias into their decision making. Obviously, that creates a certain disincentive for citizens to use self-defense.

Now, you might say "but the prosecutor would never bring charges against someone using self defense." But the fact is a lot of prosecutors really don't like the public having guns. Ohio's conceal carry was very controversial. And Ohio prosecutors were not shy about charging and seeking convictions for felonies for people who didn't have their concealed firearm just-right in their cars.

Put all that in a big bowl and stir it up, and I think that Ohio's adoption of the Castle Doctrine is a huge step forward in self defense in Ohio.
9.9.2008 1:06pm
neurodoc:
A homeowner who injures, maims or even kills an intruder is on the right side of the law, starting today in Ohio.
Snappy lead, but potentially misleading.
"It could be someone was dealing drugs in their house and something goes bad and so they shoot them," he said. "This is who this law will apply to."
The law pertains to "intruders," not invitees, doesn't it? If you are dealing drugs from your house, perhaps you should pause before blowing the person away, especially in the absence of undeniable proof that they broke in, because you may not get the benefit of that presumption. (If you are a drug dealers reading this, consult a lawyer.)
9.9.2008 1:19pm
neurodoc:
lior, what do you rely on to say that as a lease condition, an owner cannot forbid the bringing of firearms onto the property?
9.9.2008 1:25pm
LarryA (mail) (www):
Why isn't the Castle Doctrine in the Bill o' Rights already?
Amendment V
No person shall be ... deprived of life, liberty, or property, without due process of law...
9.9.2008 1:25pm
Fat Man (mail) (www):
The case law I cited was the classic statement of the castle doctrine. At common law self-defense was a plea that the defendant had to make and prove. The new Ohio statute apparently alters the burden of proof and some other details, but it does not drastically alter the law very much. Ohio was already favorable to self-defense, now it is more so. This is an incremental change.
9.9.2008 1:31pm
Mark Jones:
When I took the required CCW course here in Oregon, I remember the instructor (an Oregon LEO) specifically telling us, "Oregon is not a 'shoot and drag' state," and that if you were justified in shooting in the first place, it didn't matter whether it happened inside your house or on your lawn.

Glad to hear that Ohio is making it easier to defend one's home without being dragged through criminal/civil court afterward.
9.9.2008 2:20pm
whit:

Or plant something to make the case that you were "using the dwelling, residence, or occupied vehicle to further an unlawful activity" - considering that a plastic baggie smaller than a single bullet would probably suffice for this, and that said baggie could easily be dropped by ANYONE who is in the residence and then "found"...

So, the law looks strong, but it still places complete and utter trust in the police to be honest, with no incentive other than their conscience to be so, and great incentive (in some cases) to not be so.



amazing how nearly every post that mentions any sort of criminal matter turns into for some people, a LEO bashing fest.

the law does not place "utter trust" in the police. credibility of ANY witness is questionable in our legal system.

and they have plenty of incentive besides their conscience for being honest - laws against perjury.

let's get this clear. yes, cops can lie. why this is relevant in every single criminal law discussion is another matter.

i guess we shouldn't have laws against speeding. cops can lie and say the guy was speeding when he wasn't.

ditto for rape, robbery, and every other law I can think of.

might as well legalize all behavior.

btw, i fully support castle doctrine laws.
9.9.2008 2:32pm
whit:

No-knock warrants are incompatible with the right to defend one's home. Anybody smashing in my door in the middle of the night could claim to be the police. And if it is the police, and I have a gun in my hand while asking to check their badges, they'll blow me to kingdom come. The whole no-knock thing stems mainly from the war on drugs, doesn't it?


just for the record. so could anybody who knocks first.

if i were you, i'd look over their shoulders for the pretty cars with flashy lights on the roof. hth
9.9.2008 2:35pm
Happyshooter:
Michigan's court of appeals, in 2004, found that if the government has an interest in real property they can, under the police powers, ban all firearms in resident's homes.

One of the main underpinnings was that the state has a "legitimate interest" in "limiting access to weapons". This is sufficent to overcome the limited rights granted by the state and federal cons.

However, the case can also be easily read to say that even if the second amendment/art 1, sec 6, firearms rights are at the compelling state interest test level, the police powers still allow banning of ownership of arms.

LINCOLN PARK HOUSING COMMISSION, Plaintiff-Appellee, v DIANE ANDREW, Defendant-Appellant.

No. 244259

COURT OF APPEALS OF MICHIGAN

2004 Mich. App. LEXIS 792
9.9.2008 2:46pm
Deoxy (mail):
Whit,

I am NOT a LEO basher. I happen to think LEOs are vitally important to our society, that they do a hard job, receive more thanks than people realize, still deserve more thanks than they actually get, and are about as honest a bunch as any other part of society (perhaps even a bit better). I also happen to be friends with a great and honest guy who happens to be a LEO.

That said, EVERY segment of society has bad apples, but "bad apple" LEOs have much greater potential to both screw up other people's lives and get away with it than, say, a plumber (not really many options to truly screw up people's lives) or even a banker (hard for them to get away with it).

So, what kinds of opportunities we give them matters, both in terms of who becomes an officer (if LEOs are allowed to act like thugs, thugs will want to become LEOs) and how many give in to temptation from time to time (dealing disproportionately with the scum of society is hard on anyone's outlook from time to time, no matter how upstanding).

In particular, the simple existence of "strict liability" crimes (which drug possession generally is) and "no knock" authority are problematic, as they are both A) easily abusable and B) easy to get away with.

Whether one thinks LEOs are 50%, 90%, 95%, or 99% (which would be notably better than the rest of society) honest and upstanding only changes how many people get screwed by such abuses, not whether they will occur.

Thus, I complain about easily abusable stuff. "every other law I can think of" covers a lot of things which are MUCH MUCH MUCH harder to frame someone for (and your claim about rape is particularly funny, as it would involve planting semen evidence).
9.9.2008 4:04pm
whit:


Thus, I complain about easily abusable stuff. "every other law I can think of" covers a lot of things which are MUCH MUCH MUCH harder to frame someone for (and your claim about rape is particularly funny, as it would involve planting semen evidence).


you are joking. right?

anybody who wants to can frame somebody else for rape, or criminal threats by making a false claim.

you don't need semen to make a rape complaint, or get a conviction.

and in the case of threats (DV or otherwise), lying is also difficult to defend against. how do you prove that when you were alone in a room with a person, that you DIDN'T threaten them.

face it. many laws are NOT hard to frame somebody on, if a person is willing to lie.
9.9.2008 4:25pm
Sum Budy:
Deoxy -- What's that about Lox, Eggs, and Onions?
9.9.2008 4:37pm
Virginian:
To Deoxy's excellent comment, I would add that it would be tremedously good for society if LEOs didn't circle the wagons and protect the bad apples in their ranks.
9.9.2008 4:44pm
whit:
and to virginian's marginal comment. some do, just like some people in other professions do the same. we see it in teachers, lawyers, and all sorts of professions.

generally speaking, any group that is besieged from the outside, any minority (heck, some majorities), etc. tends to want to protect members of its own group.

more to the point, deoxy is simply wrong, as i pointed out with the rape and criminal threats example. witnesses can and do lie all the time. so do "victims".
9.9.2008 5:25pm
Virginian:
9.9.2008 6:14pm
Lior:
neurodoc: The story in the Plain Dealer linked to above contains a sidebar with a summary of all the provisions, including:
A landlord cannot evict a permit-carrying tenant for keeping a firearm on the rented premises.


The relevant text is as follows:


(a) Except ... in ... (b) ..., the owner or person in control of private land or premises, and a private person or entity leasing land or premises owned by the state, the United States, or a political subdivision of the state or the United States, may post a sign in a conspicuous location on that land or on those premises prohibiting persons from carrying firearms or concealed firearms on or onto that land or those premises. ...

(b) A landlord may not prohibit or restrict a tenant who is a licensee and who on or after the effective date of this amendment enters into a rental agreement with the landlord for the use of residential premises, and the tenant's guest while the tenant is present, from lawfully carrying or possessing a handgun on those residential premises.
9.9.2008 6:40pm
TokyoTom (mail):
I predict that police will respond to what they perceive as heightened risk from this law with an escalation of dangerous SWAT-style police invasions, with greater firepower.
9.10.2008 8:13am
TokyoTom (mail):
whit, the reason some of these chains turn into what you see as LEO bashing is that the "war on drugs" is running out of control, as police chiefs across the country well know.
9.10.2008 8:20am
Celia (mail):
TokyoTom,

How can you or anyone say the war on drugs is out of control and keep a straight face? $50,000,000,000 is a pittance to pay to safeguard our children from the marijuana lords of Vancouver. This war was started by President Nixon (I know what you're thinking, don't say it, let history be the judge) -- you are such a hypocrite - give it a chance, its only been forty years. I mean every year we arrest and imprison even more than the year before -- and you call that "out of control" -- I call that getting in control. All we need is a SURGE and we will rid our streets of this scourge -- hey maybe that could be the DEA's new slogan -- "surge against the scourge" -- we'd only need an other 10 or 20 billion per year for the next 10 (or more) years and it would be even better by that time. This will go down in history as the best war we ever fought - well the longest anyway - hey maybe it could beat the 100 years war. I can't wait!
9.10.2008 12:14pm
Richard Aubrey (mail):
Virginian. I once asked an attorney about narcing on his underhanded buddies. "Can't work", he said, "there'd be too much of it and we couldn't talk to each other."
I would ask for some numbers--how many attorneys are actually pointed out by their professional peers for being crooked.
9.10.2008 2:45pm