Does Ohio's Castle Doctrine law need to be changed?

by Jim Irvine

Recently, several papers have run stories about supposed problems with Ohio's Castle Doctrine law and the use of the law by criminals in defense of their shooting people, as criminals will sometimes do. The Ohio legislature has failed to pass any pro-gun bills this session for anti-gunners to complain about, so The Columbus Dispatch and John Murphy, executive director of the Ohio Prosecuting Attorneys Association, want to rehash an argument they lost years ago.

Before "Castle Doctrine" became law in Ohio with the passage of SB184 in 2008, a person who defended their life with deadly force had to admit they committed a homicide, and then prove they were justified in committing the act. Notice they were not "innocent until proven guilty," but rather guilty until proven innocent, at their own expense.

Everyone except John Murphy and newspaper reporters can see that is wrong.

We are not discussing a long or particularly complicated law. We can cite the applicable code here:

2901.05 Burden of proof - reasonable doubt - self-defense.

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

(B)(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

(2)(a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.

(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence.

(http://codes.ohio.gov/orc/2901.05)

From the article:

Franklin County Prosecutor Ron O'Brien...fears that the law is being used to "confuse jurors to think there was self-defense under the law when there wasn't."

..."The traditional homeowner defending himself doesn't need the castle doctrine. ... He is not going to be charged," said John Murphy, executive director of the Ohio Prosecuting Attorneys Association. "It is unnecessary, and it creates this opportunity for defendants to raise the issue in cases where it shouldn't be raised."

Note, however, that Castle Doctrine is not an absolute (see ORC 2901.05 (B)(3) above). Castle Doctrine is "a rebuttable presumption and may be rebutted by a preponderance of the evidence." If Ohio's prosecutors find it too difficult to overcome a claim of self-defense with a preponderance of evidence in a case involving a couple of drug dealers, maybe that explains why there are so darn many criminals on the streets! If the facts of these cases are as reported, it should be pretty easy to get a conviction. If they can't manage, it's time to elect new prosecutors.

Murphy's real problem is that the law now requires prosecutors to do their job. In opponent testimony on SB184, he stated, (paraphrasing) "If this passes, we will have to prove someone committed a crime in order to convict them." That's right, John. That is the whole point.

Opponents also complained that they would no longer be able to prosecute drug dealers and criminals because of Castle Doctrine. In fact, The Dispatch article itself provides evidence that having criminals claim protection under Castle has not stopped prosecutors from prosecuting, or getting convictions, proving these fears were and are unfounded.

Again from the story:

In rural Pike County, a man who ripped off a drug dealer's wares shot the dealer through the heart after he broke a window in an attempt to enter the defendant's car. Defense attorneys contended that the man acted lawfully. A jury convicted him of reckless homicide rather than murder.

In Franklin County, a man fatally stabbed an acquaintance who pushed his way into the defendant's home during an argument. His attorneys said the law granted him an absolute right to defend himself with deadly force. The prosecution countered that the law "is not a license to commit murder."

The use of the castle-doctrine defense has not succeeded in heading off homicide convictions, but appeals of trial-court verdicts are promised that could produce rulings interpreting the law.

Some might argue that drug dealers killing drug dealers is a good thing. Maybe in some cosmic sense, it is, but it's still illegal. We are a nation of laws, laws gun owners want consistently enforced. It is not legal to go murder drug dealers and criminals. Criminals killing criminals are rightfully prosecuted for murder.

Even criminals have rights, including the right of self defense. But it is illegal for criminals to possess guns. They can't get a concealed carry license, and thus are breaking the law having loaded guns in their cars ready at hand to shoot drug dealers. Are they being prosecuted for those crimes? If so, neither the paper nor Murphy are talking about it.

We do know that good people who are confused by Ohio's laws regarding carrying guns in cars are prosecuted. If prosecutors are not willing to go after miscreants with these laws, then the laws should be repealed so they are not doing harm to otherwise law-abiding gun owners.

The story seems to highlight more problems with prosecutors than with the law, but we are always willing to review a law and see if it needs further refinement.

Indeed, this law could be improved. Under current law, it only applies to victims "occupying" a residence or vehicle. Why should a law-abiding person not have the same right to defend their life in their front yard, sidewalk, grocery store, or workplace? Why should the law put a "burden to retreat" on any crime victim? If we want to "get tough on crime" we should be encouraging (or at least allowing) our citizens to stand up and defeat the criminal anywhere crime happens. Why don't we have a right to "stand our ground" against rapists and murders?

The current law is unfair to crime victims and should be amended. Hopefully the legislature will address these issues when they reconvene next year.

Jim Irvine is the Buckeye Firearms Association Chairman.

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