Shooting in defense of a third party
by Jim Irvine
Ohioans who carry a concealed firearm and obtain their Ohio concealed handgun license (CHL) have undergone training and read the Ohio Attorney General guidance on use of deadly force and self-defense. "Castle Doctrine" has made using such force much simpler to understand if defending your life or family member from someone breaking into your occupied home or vehicle, but life is not always simple.
In a recent article four men were reported to have robbed someone in an apartment complex. The victim suffered a gunshot wound to the shoulder. A neighbor heard the commotion and responded to the scene with a gun in hand. One of the criminals allegedly fired at the good samaritan neighbor, who then returned fire, killing one of the aggressors. The three others have been arrested and are charged with murder.
Forgetting all the legalese for a minute, is this not what we as a society want from our fellow citizens? Such are the actions of heroes in movies. They save the day, protect the helpless victim against superior force and use their skills and tools to prevent further harm and help police remove bad people from our society. Life is good. We smile, we cheer, and we go on happy that justice is served.
But life is not like the movies. In real life, we must now deal with the law.
The Ohio Attorney General Concealed Carry booklet states:
Defense of Others
A person may defend another only if the protected person would have had the right to use deadly force in self-defense themselves. Under Ohio law, a person may defend family members, friends or strangers. However, just as if he were protecting himself, a person cannot use any more force than is reasonable and necessary to prevent the harm threatened.
A defendant, who claims he used deadly force to protect another, has to prove that he reasonably and honestly believed that the person he protected was in immediate danger of serious bodily harm or death and that deadly force was the only way to protect the person from that danger. Furthermore, the defendant must also show that the protected person was not at fault for creating the situation and did not have a duty to leave or avoid the situation.
The law specifically discourages citizens from taking matters into their own hands and acting as law enforcement. This is true even if the person thinks he is performing a good deed by protecting someone or helping law enforcement. The Ohio Supreme Court has ruled that a person risks criminal charges if he interferes in a struggle and protects the person who was at fault, even if he mistakenly believed that person did not create the situation.
In other words, if you misinterpret a situation and interfere, you may face criminal charges because your use of deadly force is not justified. If you do not know all the facts and interfere, you will not be justified to use force. It does not matter that you mistakenly believed another was in danger and not at fault.
A good lawyer I know who is very knowledgeable on these topics advises against ever getting involved in a defense of third party situation. How can you possibly know "that the protected person was not at fault for creating the situation" or that he "did not have a duty to leave or avoid the situation" if you don't know the origin of the dispute? You can't.
Also important is Ohio's "Duty to Retreat." Again from the AG booklet:
A defendant must show that he did not have a duty to retreat or avoid the danger. A person must retreat or avoid danger by leaving or voicing his intention to leave and ending his participation in the confrontation.
Consider the situation with our good neighbor. What if the four criminals were only going to kill their intended victim, and didn't shoot at the neighbor? What if they just ignored the neighbor and continued to beat and shoot the victim? Do we really want him to stand by and let four punks kill a guy? Do we want the neighbor to retreat while his fellow man is murdered or to advance and help? I know if it was my wife, child, parent or friend about to die, I'd be thankful for that neighbor that stepped in to save them.
If a citizen taking action to save someone from a fire is heroic, why is this any different? A neighbor has no "duty to retreat" when helping someone out of a burning building. Why is saving our neighbor from death by criminal so different? Our laws should do a lot better job of protecting citizens who help their fellow citizens. Ohio should expand the castle doctrine because no victim or good citizen coming to a victim's aid should be required to "retreat" from violent criminals. Laws that punish the good guys will never stop criminals from their abhorrent behavior. This is the kind of "common sense" laws legislatures should be passing.
Jim Irvine is the Buckeye Firearms Association Chairman.