HB 228 (Fix Burden of Proof/ Concealed Carry Modernization) scheduled for first Senate hearing

Senator Bill Coley (R-Liberty Township), who chairs the Senate Government Oversight & Reform committee, has announced the first hearing for Sub. House Bill 228 (Fix Burden of Proof/ Concealed Carry Modernization) on Monday, December 3, 2018 at 10:00 a.m. in the Finance Hearing Room. The committee will consider both sponsor and proponent testimony. The Chair has also indicated that a second hearing for this bill is likely to be held on Wednesday.

HB 228, introduced in May 2017 by Representatives Terry Johnson (R-McDermott) and Sarah LaTourette (R-Chesterland), seeks to reform the state's arcane self-defense burden of proof requirements. It was passed out of the Ohio House by a vote of 65 to 32. The Senate Judiciary Committee has already held several hearings on a companion bill, SB 180.

Click here to read a summary of the current version of Substitute HB 228.

Remember when you were taught that all people are "innocent until proven guilty?" Not in Ohio. Not if you are the victim of a deadly force attack and choose to defend your life. In Ohio you are considered guilty, and you must now prove your innocence.

"Ohio is the ONLY state in the U.S. with this absurd requirement for burden of proof," said Jim Irvine, Chairman of Buckeye Firearms Association. "It has been talked about in legal seminars around the country for years. It is an embarrassment to Ohio.

"People under attack should be able to defend their life. They should not have legal hurdles to jump before acting to defend themselves. They should not be second-guessed for years over a decision they were forced to make in a second. Ohio law should protect the victim, not the aggressor. This bill corrects this problem with Ohio law."

To understand how unfair the current law really is, consider this explanation from Andrew Branca, an attorney writing at LegalInsurrection.com:

In forty-nine states, all but Ohio, once a defendant has raised the legal defense of self-defense it becomes the responsibility of the prosecution to disprove self-defense beyond a reasonable doubt. There's not [an] accepted mathematical figure for how much evidence constitutes "beyond a reasonable doubt," but it is an overwhelming majority of the evidence. For purposes of illustration let's pretend it means 90% of the evidence. So to defeat self-defense in 49 states, the prosecution must come up with 90% of the evidence in its favor.

In Ohio, on the other hand, once a defendant has raised the legal defense of self-defense it remains the defendant's obligation to prove self-defense by a preponderance of the evidence. For purposes of illustration, let's pretend that means simply 51% of the evidence. Of course, as a practical matter if the defense must prove self-defense by 51%, that’s just another way of saying the prosecution needs to disprove self-defense by 50% – just enough to deny the defense it’s 51%. If the prosecution can disprove self-defense by even 50% of the evidence they’ve prevented the defense from meeting it’s obligation, and the claim of self-defense fails.

In other words, Ohio law clearly discriminates against victims of violence who chose to defend themselves. No other state in the country does this.

Irvine said, "This is perverse and unfair. Ohio is quite literally providing more legal protection to perpetrators of violent crime than to their victims. How can anyone think this is just?"

The bill would also:

  • Eliminate the duty to retreat for those under threat of deadly force attacks.
  • Modify the "hands in plain sight" requirement for license holders in a traffic stop.
  • Amend penalties for minor infractions with firearms in a motor vehicle.
  • Eliminate the requirement to post "no guns" signs.

"Plain Sight"

During a traffic stop, concealed handgun license (CHL)-holders are required to remain inside their vehicle (unless otherwise instructed by law-enforcement). They are also required to keep their hands in "plain sight." Courts have ruled that firearms can never be in "plain sight" in an automobile. Thus "open carry" of a firearm in a motor vehicle is not possible - you must have a CHL. If a gun can't be in plain sight, how can your hands? So Ohio law seems to require people to do something with their hands that the courts have ruled is not even possible to do with a gun.

"No Guns Signs"

The requirement to post "no guns" signs has caused problems since it first passed. Labor law compliance sign companies can't figure out Ohio law, so the simple solution is to include the "no guns" signs in the packages they send to Ohio businesses. Businesses can't understand the law, so they post all the signs they receive in their package. Many post signs they are not required to, and don't want to. Many schools have authorized people to carry firearms, but they are still required to post the signs. Other schools recognize the signs are an invitation to mass killers that they have a large collection of people who would be easy to kill. They want to get rid of the signs. In March, concealed carry became legal in some government buildings and colleges, but those places are still required to post, even if they have chosen to allow otherwise. The law is contradictory and confusing. HB 228 / SB 180 would eliminate the requirement to post signs, but still permit the posting by any entity that chooses to do so.

Buckeye Firearms Association continues to work with legislators to move this important legislation. No significant pro-gun legislation has been sent to the governor's desk since December 2016. If legislators do not act, HB 228/SB 180 and many other pro-gun bills that are pending will die at the end of December.

If you want to see the General Assembly act to improve gun rights in ways that are already enjoyed by the majority of other states, call your Representative and Senator NOW and tell them you expect pro-gun rights legislation to move in Ohio. They wanted your vote in November. Tell them we want their votes too.

Chad D. Baus is the Buckeye Firearms Association Secretary and an NRA-certified firearms instructor. He is co-founder of BFA-PAC, and served as its Vice Chairman for 15 years. He is the editor of BuckeyeFirearms.org, which received the Outdoor Writers of Ohio 2013 Supporting Member Award for Best Website.

Related Article:

H.B. 228 (Fix Burden of Proof/Concealed Carry Modernization) – The Legislative Road Ahead

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