2nd Amendment to the Constitution of The United States of America

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

"I ask sir, what is the militia? It is the whole people except for a few politicians."
- George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

Sunday, November 7, 2010

Ohio’s Castle Doctrine to be tested in Ohio Appeals Courts..

bad guy Article from The Columbus Dispatch, 10/6/2010

Judge Says Killing Wasn’t in Self Defense

I have often heard the misconception told by people that the Castle Doctrine gives homeowners the right to shoot somebody who breaks into their residence without fear of retribution.  This is only a partially correct interpretation of Ohio’s law which has several other key presumptions that must be met in order for the justification of deadly force to be justified.  It simply alleviates the victims burden of proof to determine that the person conducting the transgression had the motive to harm them. It allows for a resident to assume that if someone forces themselves into their home in the act of committing a crime that they are in danger since the act was unprovoked.  Basically it assumes that anyone breaking into a residence is an aggressor and gives you the right to act accordingly.  I find way to many people just assuming that if somebody breaks in they can just plug away at them until they stop.  Some people have even claimed in my presence that they would do the old “drag ‘em across the doorway” tactic…I would not want to be the person facing a prosecutor on manslaughter or murder charges who tampered with a crime scene. A lot of this misconception stems from the removal of the “duty to retreat” portion of the previous statue for self defense that was applicable in the law due to the presumption of aggression inclusion of the Castle Doctrine as implemented in the state.

The act itself is a descendent of old English Common law from the Magna Carta which gave all citizens the right to treat their home as their castle and expect the same security in it as a noble man would.  I found the following general guidelines from wikipedia concerning its application (not Ohio specific and consider the source please, I am not a lawyer but I can find references to all of these guidelines either in the Ohio code for the doctrine or other legalize pages)

  • An intruder must be making (or have made) an attempt to unlawfully and/or forcibly enter an occupied home, business or car.
  • The intruder must be acting illegally—e.g. the Castle Doctrine does not give the right to attack officers of the law acting in the course of their legal duties
  • The occupant(s) of the home must reasonably believe that the intruder intends to inflict serious bodily harm or death upon an occupant of the home
  • The occupant(s) of the home must reasonably believe that the intruder intends to commit some other felony, such as arson or burglary
  • The occupant(s) of the home must not have provoked or instigated an intrusion, or provoked or instigated an intruder to threaten or use deadly force
  • The occupant(s) of the home may be required to attempt to exit the house or otherwise retreat (this is called the "Duty to retreat" and most self-defense statutes referred to as examples of "Castle Doctrine" expressly state that the homeowner has no such duty)

I would assume that the presence of our old friend “Al. K. Hol” in the case will have a large bearing on it, the fact that the victim was apparently unarmed despite the size difference (although in South Linden I think its safe to assume a lot of people are carrying whether licensed or not), and the fact that the accused had time to go back to the kitchen, secure and conceal a “butcher knife” (ooh, that hurts in a jury’s eyes, might as well of been an “assault weapon”) but yet did not call the police.  The article does not give all the specifics of the incident or what was presented in the court, but it is safe to presume that several of the requirements to apply the doctrine were not met sufficiently.

The castle doctrine is an effective tool and deterrent for informed Ohioans to use to defend themselves and their family from assault in their home.  The sad fact is I think that few people actually take the time to research the law to make sure that they know what it entails before applying it and you get what we have here.  I am sure that there have been other cases where people have successfully used the doctrine to defend themselves and probably had no idea of all of the statues pertaining to it.   Click the below logo pic for the Buckeye Firearms Association to get a layman’s explanation of the law.

buckeyefirearms_logo

Its only by being trained and informed gun owners that we can achieve any type of advances in gun ownership and 2nd Amendment expansion in this county with the media and other political forces outlaid against us.  Every mistake we make in applying the legal statues for our choice to arm ourselves is magnified by our opposition.  It is up to each of us to not only train ourselves with our firearms but also our minds by taking the time to know these critical laws that apply to us.

 

Disclaimer:  I am not a lawyer or other legal professional.  Any information provided on this blog is my own personal opinion and does not constitute any legal guidance.  Please consult a legal professional in your area that is knowledgeable of your applicable laws if you have any questions.  Its been said only a fool would have himself as his own lawyer…the same can be said for having me as your primary source for legal advice. 

2 comments:

NotaLawyerEither said...

What do you do for a living?

Huey148 said...

my classification is ITius Geekius...basically tier 3 tech support...