Senate Bill 180 (Fix Burden of Proof/ Concealed Carry Modernization) scheduled for second hearing

Senator Kevin Bacon (R-Minerva Park), who chairs the Judiciary Committee, has announced a second hearing for Senate Bill 180 (Concealed Carry Modernization) on Tuesday, November 14, 2017 at 10:15 a.m. in the North Hearing Room. The committee will consider proponent testimony. Buckeye Firearms Association President Jim Irvine will testify in support of the bill.

SB 180, introduced last month by Sens. Joe Uecker (R-Miami Twp.) and Jay Hottinger (R-Newark), seeks to reform the state's arcane self-defense burden of proof requirements. For the most part, the bill mirrors HB 228, which as already been introduced in the House last spring.

Click here to read the text of the SB 180.

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. SB 180 / HB 228 would eliminate the requirement to post signs, but still permit the posting by any entity that chooses to do so.

Buckeye Firearms Association looks forward to working with legislators to move this important legislation.

Please call your State Representative and Senator and ask if they have signed on as a co-sponsor.

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Jim Irvine' s testimony, as presented to the committee, follows:

Good morning Chairman Bacon, Vice Chairman Dolan, Ranking member Thomas, and members of the Senate Judiciary Committee. I speak today in support of SB 180.

One of the basic tenets of our judicial system is that we are innocent until proven guilty. All United State citizens have the presumption of innocence until the state proves beyond a reasonable doubt that we have committed a crime. We have constitutional rights to protect us, including our Fifth Amendment right to remain silent and not testify.

Except in Ohio. Except if you are a crime victim who justifiably used deadly force. Ohio puts the burden on the victim to prove they are innocent. To do this they must waive their Fifth Amendment rights. Their attorney forfeits the ability to make certain motions at trial because the prosecution is not required to prove anything. This wrong is corrected in SB 180.

Justified use of deadly force requires three conditions:

  • Ability
  • Proximity
  • Intent

All three elements must exist at the moment deadly force is used. That standard is common in the United States; it is the law in Ohio and would not change if SB 180 were enacted.

The question before this committee is what additional legal burdens should the state place on victims under threat of death, before they are permitted to exercise the right of self-defense. Our view is none.

Current Ohio law imposes a "duty to retreat"; on victims. This duty is not required in one's home or car, but it is on transitioning between the two. It's not required if it's not possible, or if it would place the victim in additional danger. While the victim must make their choice in an instant, and while under threat of death or great bodily harm, others not under any threat will debate the appropriateness of the victims decisions for months or even years.

The use of deadly force should be justified based on the actions of the attacker, not the location of the attack, or the theoretical ability of the victim to otherwise escape. SB 180 seeks to amend Ohio law to remedy this problem.

SB 180 properly and appropriately addresses real problems within Ohio law.

Respectfully submitted,
James Irvine, President

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