Someone goes for your gun
- Thread starter Robert B
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cmort666
Member
Ohio has castle doctrine. If somebody's dumb enough to both kick in your door AND charge a loaded gun, the law's not coming after you because of HIS stupidity.
Out in the street (except in your car, which is also covered by castle doctrine), you still have a duty to retreat, if you can do so in PERFECT SAFETY. That means you must TRY to withdraw. It doesn't mean you have to turn your back and try to run. It doesn't mean you have to let somebody hurt you. It just means you have to withdraw if doing so wouldn't INCREASE the immediate danger to you.
Out in the street (except in your car, which is also covered by castle doctrine), you still have a duty to retreat, if you can do so in PERFECT SAFETY. That means you must TRY to withdraw. It doesn't mean you have to turn your back and try to run. It doesn't mean you have to let somebody hurt you. It just means you have to withdraw if doing so wouldn't INCREASE the immediate danger to you.
Also, if you defend yourself against someone out on the street in Ohio, self defense is an "affirmative defense". Which means that the burden of proof is on YOU. The prosecutor just has to prove you shot him. You have to prove it was self defense. Which means that you have to prove you COULD NOT retreat.
Out on the street, you WILL be arrested for murder. You will sit in jail until bailed out, go to trial, pay lots of $ defending yourself, and still may lose. Don't shoot unless you know beyond any shadow of a doubt that you will be killed.
I haven't bothered with getting a CCW because of this. There just aren't very many crimes that are worse than the legal aftermath of defending yourself here.
cmort666
Member
That hasn't seemed to have happened a lot, if at all.
The guy who shot Artie Buford was IN FRONT OF his home, not in it, and that I recall, castle doctrine had not YET been passed. He wasn't arrested that I know of, nor did he sit in jail. He was never tried. And the shooting happened in Cleveland. If it didn't happen there, I don't see it happening in Rocky River or Westlake.
Do you have examples of this happening, where the incident was unmistakably self-defense?
I consider getting maimed or murdered WAY worse than anything the legal system can throw at me. Your mileage may vary.
straightshooter1
US Veteran
JohnGalt, respectfully, I believe you are wrong.
Certainly you are wrong about how an Affirmative Defense works. A defendant never has to prove anything. The burden of proof in a criminal case never shifts from the prosecutor.
And, while I am not an Ohio lawyer, I would bet, if I were a betting man, that the prosecutor has to prove more than you shot someone.
In every state I am familiar with, the prosecutor has to prove the shooting or killing was UNLAWFUL.
And, again in those states I am familiar with, if the Prosecutor cannot establish a prima facie case of the shooting or killing being unlawful, the Judge will grant a Judgment of Acquittal or Directed Verdict and the case will end before the defense presents its Affirmative Defense and the jury will never get to deliberate.
No second chance for the Prosecutor, either, because of this irritating little thing in our Constitution about Double Jeopardy.
Now, of course, Louisiana may be different. After all, Cajunlawyer is "different." isn't he?
Bob
Certainly you are wrong about how an Affirmative Defense works. A defendant never has to prove anything. The burden of proof in a criminal case never shifts from the prosecutor.
And, while I am not an Ohio lawyer, I would bet, if I were a betting man, that the prosecutor has to prove more than you shot someone.
In every state I am familiar with, the prosecutor has to prove the shooting or killing was UNLAWFUL.
And, again in those states I am familiar with, if the Prosecutor cannot establish a prima facie case of the shooting or killing being unlawful, the Judge will grant a Judgment of Acquittal or Directed Verdict and the case will end before the defense presents its Affirmative Defense and the jury will never get to deliberate.
No second chance for the Prosecutor, either, because of this irritating little thing in our Constitution about Double Jeopardy.
Now, of course, Louisiana may be different. After all, Cajunlawyer is "different." isn't he?
Bob
cmort666
Member
The last time I checked, the Code Napoleon wasn't in force in Ohio. You are indeed correct.
This was before Ohio's Castle Doctrine, but a guy who works at a gun store I frequent defended himself against a home intruder. I would classify this as a clear cut self defense case.
He was arrested, prosecuted, and was ultimately acquitted. But the prosecutor went after him with a vengeance. I don't want to reveal his name, and I don't have any case details, so I am just repeating his story. I don't have any reason to believe he is lying to me.
I haven't taken the CCW course (but have read the manual), so I may be incorrect about the affirmative defense, but I don't think so.
When you claim self defense, you have admitted to shooting the dirt bag. You have just done the prosecutors job for him. Now YOU have to prove that it was justifiable. That's what "affirmative defense" means. You have the burden of proving you met ALL of the conditions of self defense, which includes the duty to retreat.
Back before Ohio had CCW, we had the "prudent man" affirmative defense to carrying a concealed weapon. If caught, you were arrested, and YOU had the duty to prove that it was reasonable for a "prudent man" to go armed in your situation. Defendants didn't win very often.
It would be much better if open carry was common. I would much rather the bad guys know to leave us alone, than have to 'surprise' him and have to defend myself, both in the encounter and against the legal system after.
He was arrested, prosecuted, and was ultimately acquitted. But the prosecutor went after him with a vengeance. I don't want to reveal his name, and I don't have any case details, so I am just repeating his story. I don't have any reason to believe he is lying to me.
I haven't taken the CCW course (but have read the manual), so I may be incorrect about the affirmative defense, but I don't think so.
When you claim self defense, you have admitted to shooting the dirt bag. You have just done the prosecutors job for him. Now YOU have to prove that it was justifiable. That's what "affirmative defense" means. You have the burden of proving you met ALL of the conditions of self defense, which includes the duty to retreat.
Back before Ohio had CCW, we had the "prudent man" affirmative defense to carrying a concealed weapon. If caught, you were arrested, and YOU had the duty to prove that it was reasonable for a "prudent man" to go armed in your situation. Defendants didn't win very often.
It would be much better if open carry was common. I would much rather the bad guys know to leave us alone, than have to 'surprise' him and have to defend myself, both in the encounter and against the legal system after.
cmort666
Member
Where did this happen? We don't have enough details to say if the guy's claims are accurate. I'm not accusing him of being a liar, just that what somebody THINKS is self-defense might not be under the law. People also run their mouths without a lawyer present, getting themselves into a world of trouble in which they would not otherwise find themselves had they just shut up.
As far as what the prosecutor has to prove, he doesn't have to JUST prove you shot somebody, he has to prove it was UNLAWFUL. Self-defense isn't unlawful.
straightshooter1
US Veteran
JohnGalt:
Cmort is correct. Sometimes someone is prosecuted.
They are convicted or acquitted. Doesn't really make any difference what the charge was-DUI, Murder, doesn't much matter.
They believe they were right (or not guilty or innocent) and therefore they believe the Prosecutor (and there had to be cops involved) were wrongly persecuting them. Never convince them otherwise.
And, sometimes, in re-telling the story, they add to or subtract from the actual facts.
On more than one occasion, I have had people call me and say someone is being prosecuted by one of the lawyers who worked for me and the defendant is totally innocent. Based on what I am being told, I agree that, if those are the facts, we (the State Attorney's Office) needs to do something to stop it.
But when I checked, read the file, read the police report, depositions if they were taken, I found that the story I was told did not mesh with the facts as related by the witnesses.
OTOH, I have had cases in which we dropped the charges or reduced them after I reviewed the matter.
What I am getting at is that without follow-up on someone's story, one doesn't know what actually happened.
Bob
Cmort is correct. Sometimes someone is prosecuted.
They are convicted or acquitted. Doesn't really make any difference what the charge was-DUI, Murder, doesn't much matter.
They believe they were right (or not guilty or innocent) and therefore they believe the Prosecutor (and there had to be cops involved) were wrongly persecuting them. Never convince them otherwise.
And, sometimes, in re-telling the story, they add to or subtract from the actual facts.
On more than one occasion, I have had people call me and say someone is being prosecuted by one of the lawyers who worked for me and the defendant is totally innocent. Based on what I am being told, I agree that, if those are the facts, we (the State Attorney's Office) needs to do something to stop it.
But when I checked, read the file, read the police report, depositions if they were taken, I found that the story I was told did not mesh with the facts as related by the witnesses.
OTOH, I have had cases in which we dropped the charges or reduced them after I reviewed the matter.
What I am getting at is that without follow-up on someone's story, one doesn't know what actually happened.
Bob
I'm no lawyer, so I freely admit I might be wrong about how the affirmative defense works. I'm going by what I've been told about how unsuccessful people used to be in defending concealed weapon charges.
We have a difference in opinion of the prosecutor's duties, reflected in this statement:
"As far as what the prosecutor has to prove, he doesn't have to JUST prove you shot somebody, he has to prove it was UNLAWFUL. Self-defense isn't unlawful."
What you are describing is true under the Castle Doctrine, but the Castle Doctrine doesn't apply outside your home or vehicle. My (quite possibly wrong) interpretation of affirmative defense is the law already presumes the shooting was unlawful, and the burden is on you to prove otherwise. The prosecutor does not have the duty to disprove your self defense claim.
I agree the prosecutor still has the burden of proving motive,etc. to make an aggravated murder charge stick, say vs. manslaughter.
In a Castle Doctrine case, the prosecutor does have the duty to disprove your self defense claim - the burden of proof shifts from you to the prosecutor.
If my interpretation of affirmative defense is wrong, how is it different than Castle Doctrine? I'm ignoring the civil liability protection aspects of Castle Doctrine, I understand that part.
We have a difference in opinion of the prosecutor's duties, reflected in this statement:
"As far as what the prosecutor has to prove, he doesn't have to JUST prove you shot somebody, he has to prove it was UNLAWFUL. Self-defense isn't unlawful."
What you are describing is true under the Castle Doctrine, but the Castle Doctrine doesn't apply outside your home or vehicle. My (quite possibly wrong) interpretation of affirmative defense is the law already presumes the shooting was unlawful, and the burden is on you to prove otherwise. The prosecutor does not have the duty to disprove your self defense claim.
I agree the prosecutor still has the burden of proving motive,etc. to make an aggravated murder charge stick, say vs. manslaughter.
In a Castle Doctrine case, the prosecutor does have the duty to disprove your self defense claim - the burden of proof shifts from you to the prosecutor.
If my interpretation of affirmative defense is wrong, how is it different than Castle Doctrine? I'm ignoring the civil liability protection aspects of Castle Doctrine, I understand that part.
This was in Cincinnati/Hamilton County. I think it was back in the Joe Deters days, before he was the State Attorney General.
I didn't get too many details, this story was told while we were all BSing at the gun store. Of course, he thinks he was completely justified, and I wasn't going to interrogate him about it.
cmort666
Member
How long ago was that? I've been here since '86. I don't remember Deters being Attorney General.
Castle doctrine gives you the PRESUMPTION of self-defense in your home or car. Outside of your home or car, the prosecutor STILL has to prove that what you did was NOT lawful.
As I said, we don't seem to be having a lot of people in self-defense shootings being indicted, nevermind being convicted of anything.
I think Deters was Attorney General under in the early Taft years. He used to be the Hamilton County prosecutor, then got the state job. Mike Allen replaced him as Hamilton County prosecutor. Allen resigned a few years later after he got caught cheating on his wife, and Deters came back to prevent the position from falling into the hands of the democrats.
Deters always struck me as the type who thought it was ok to twist the law to invent crimes because everyone is a criminal who hasn't been caught yet.
Deters always struck me as the type who thought it was ok to twist the law to invent crimes because everyone is a criminal who hasn't been caught yet.
straightshooter1
US Veteran
JohnGalt:
I just can't imagine where you get the idea that the law presumes a shooting to be bad, or that you have to prove anything.
Do you know any lawyers, even casually? If you will begin a conversation, most will give you the straight scoop. I think you will be quite surprised.
Or, take this to the Lounge and ask the question. In addition to me, there are a number of lawyers here experienced in criminal law.
I sort of remember that Houston Rick, at one time, either went to law school or practiced in Ohio.
Bob
I just can't imagine where you get the idea that the law presumes a shooting to be bad, or that you have to prove anything.
Do you know any lawyers, even casually? If you will begin a conversation, most will give you the straight scoop. I think you will be quite surprised.
Or, take this to the Lounge and ask the question. In addition to me, there are a number of lawyers here experienced in criminal law.
I sort of remember that Houston Rick, at one time, either went to law school or practiced in Ohio.
Bob
CelticSire
US Veteran
If I may...
I am not an attorney, nor did I sleep in a Holidy Inn express last night. However, I do have some familiarity with affirmative defense. An affirmative defense, in criminal law, is raised by the defendant, and is usually either a justification defense or an excuse defense. what an affirmative defense does is limit, excuse or avoid a defendant's criminal culpability. Essentially what the defense is doing is admitting the facts as stated in the criminal complaint, but offering evidence to excuse or mitigate. "In its simplest form, a criminal defendant may be exonerated, if he can demonstrate that he had an honest and reasonable belief that his conduct was necessary to protect himself against another's use of unlawful force." (Italics added) So, yes, if you're offering an affirmative defense, you have to provide the evidence to support it.
I am not an attorney, nor did I sleep in a Holidy Inn express last night. However, I do have some familiarity with affirmative defense. An affirmative defense, in criminal law, is raised by the defendant, and is usually either a justification defense or an excuse defense. what an affirmative defense does is limit, excuse or avoid a defendant's criminal culpability. Essentially what the defense is doing is admitting the facts as stated in the criminal complaint, but offering evidence to excuse or mitigate. "In its simplest form, a criminal defendant may be exonerated, if he can demonstrate that he had an honest and reasonable belief that his conduct was necessary to protect himself against another's use of unlawful force." (Italics added) So, yes, if you're offering an affirmative defense, you have to provide the evidence to support it.
straightshooter1
US Veteran
Right, you offer the evidence, but the burden of proving guilt remains on the prosecution.
It is so bad (speaking from a Prosecutor's standpoint) the our Courts have said if there's "any evidence" (meaning someone says MAYBE the victim was the aggressor), then the defense can put on any evidence (which is admissible under the Rules of Evidence) to establish the Affirmative Defense of Justifiable Homocide (self-defense).
Then the Prosecutor has the burden of putting on evidence to rebutt this Affirmative Defense and still has to prove the defendant's guilt beyond and to the exclusion of a reasonable doubt.
Sometimes very difficult and a royal pain in the patootie for us.
In fact, the defendant, in our state, doesn't have to take the stand to admit the facts (so I don't get my shot at cross examination). He can establish the defense, or try to, through other witnesses including the State's.
Bob
It is so bad (speaking from a Prosecutor's standpoint) the our Courts have said if there's "any evidence" (meaning someone says MAYBE the victim was the aggressor), then the defense can put on any evidence (which is admissible under the Rules of Evidence) to establish the Affirmative Defense of Justifiable Homocide (self-defense).
Then the Prosecutor has the burden of putting on evidence to rebutt this Affirmative Defense and still has to prove the defendant's guilt beyond and to the exclusion of a reasonable doubt.
Sometimes very difficult and a royal pain in the patootie for us.
In fact, the defendant, in our state, doesn't have to take the stand to admit the facts (so I don't get my shot at cross examination). He can establish the defense, or try to, through other witnesses including the State's.
Bob
flop-shank
US Veteran
Mr. Galt, I would suggest you take an Ohio concealed carry class, and one where a lawyer does part of the instruction (I don't know how Ohio works, but in Michigan part of the class must be taught by a lawyer or police officer). You could recieve the legal council you need and get the classwork required to get licensed taken care of at once. If you then decide that CCW isn't for you, you will be making a more informed decision.
buckeyeshooter
Member
flop-shank, here in the buckeye state the CCW class only requires a certified instructor. There is no part that must be taught by law enforement or attorney. Might be why this fellow has some confusion.
Thanks for the replies, it sounds like I was more pessimistic about the legal aftermath than I needed to be. The way the affirmative defense was explained to me, acquittal would be very difficult if it was invoked.
CelticSire
US Veteran
straightshooter1
US Veteran
I think I have heard of that Amendment. In the Constitution somewhere, isn't it?
However, in the "old" days in Florida, if one wanted to raise certain Affirmative Defenses, one had to take the stand and admit the (for example) shooting, then explain why when he shot, it was in self defense.
There were some exceptions to that requirement, but generally, if the defendant didn't want to take the stand, he wouldn't get his defense in.
Bob
However, in the "old" days in Florida, if one wanted to raise certain Affirmative Defenses, one had to take the stand and admit the (for example) shooting, then explain why when he shot, it was in self defense.
There were some exceptions to that requirement, but generally, if the defendant didn't want to take the stand, he wouldn't get his defense in.
Bob
Scenario number 1 is almost certainly a justified use of deadly force. Many states have a "castle doctrine" including my state.
Situation number 2, more than situation number 1, requires a little more of the "hypothetical." What was the threat, exactly, from whom, where, when, why? A complete stranger randomly making an overt threat on your life for no apparent reason is different than a stranger who is mad that you took "their" parking spot is different than a person previously known to you who is hostile over a past event in which you both participated. Defending against a deranged, unprovoked, hostile aggressor is different than becoming suddenly drawn into a "road rage" type incident which you may have inadvertently caused but now have escalated with the display of deadly force is different than shooting someone with whom you have an acrimonious past.
There are background facts that a prosecutor and perhaps a jury are going to have to sort through to decide your fate.
Situation number 2, more than situation number 1, requires a little more of the "hypothetical." What was the threat, exactly, from whom, where, when, why? A complete stranger randomly making an overt threat on your life for no apparent reason is different than a stranger who is mad that you took "their" parking spot is different than a person previously known to you who is hostile over a past event in which you both participated. Defending against a deranged, unprovoked, hostile aggressor is different than becoming suddenly drawn into a "road rage" type incident which you may have inadvertently caused but now have escalated with the display of deadly force is different than shooting someone with whom you have an acrimonious past.
There are background facts that a prosecutor and perhaps a jury are going to have to sort through to decide your fate.
CelticSire
US Veteran
Yeah, somewhere in there, along with that pesky 4th and 6th.
straightshooter1
US Veteran
Oh yeah! I remember now! Those are the ones that certain folks keep accusing LEOs and Prosecutors of violating ALL the time.
Bob
Bob
CelticSire
US Veteran
Only when necessary, because "Attitude is everything"
I haven't read this thread, just the OP, and here's my advice......
Train, train, train!
Train with scenarios just like the ones you describe....
You can shoot paper all day but it won't prepare you for the moment of truth like hard realistic force-on-force training will.
Weapon retention, stress inocculation,draw & fire/no shoot, etc. These are things that are best worked on in real time, but interestingly they are also the things that most people are not willing to roll in the dirt over.
We can sit and keyboard commando all day long, but in the end it really boils down to who has the most odds in their favor and realistic training definitely increases those odds.
I just took the Ohio CCW class March 21st and the instructor, a LEO, dealt with this question in detail. He pointed out that the state of Ohio draws a distinction between the prosecutor's burden and the defendant's burden. While the prosecution has the burden to prove a crime was committed, the accused has the burden to prove the use of deadly force was justified under Ohio law. If you can't prove it was justified, his job of proving it was a crime is made easier. Sound confusing? Yes indeed. Page 20 of the booklet "Ohio's Concealed Carry Law" published by the Office of the Attorney General of the State of Ohio says, "The term 'affirmative defense' means the accused, not the prosecutor, must prove by a preponderance of the evidence that he acted in self-defense or in defense of another. In other words, the defendant must prove that it is more probable than not that his use of deadly force was necessary due to the circumstances of the situation." Like it or not, that's the way Ohio law sees things.
straightshooter1
US Veteran
You are correct, Gunhawk.
Ohio IS different, as to this issue. Looks like, in 1987, a defendant named Martin took this issue to the United States Supreme Court on due process grounds.
The Court determined that there's a difference between the Prosecutor's burden of proving the crime and the burden on the defendant of establishing the defense by a preponderance of the evidence. Because of the difference, the Ohio rules were found to be constitutional.
Bob
Ohio IS different, as to this issue. Looks like, in 1987, a defendant named Martin took this issue to the United States Supreme Court on due process grounds.
The Court determined that there's a difference between the Prosecutor's burden of proving the crime and the burden on the defendant of establishing the defense by a preponderance of the evidence. Because of the difference, the Ohio rules were found to be constitutional.
Bob
Seems to me be a lot of posting about the law. Isn't this a gun forum? You need to know enough law to stay out of trouble, but it sounds like the original questions were about shoot/don't shoot. Those are questions where the law is nowadays useful mainly for suggesting possibilities as to what the facts may be, NOT for telling you what to do. It seems to me that most sane folks will shoot where it's necessary to avoid death or serious injury, and not shoot where it is not. Legal consequences don't change that, and are best not considered at critical times.
JM $.02, and YMMV in free states.
JM $.02, and YMMV in free states.
straightshooter1
US Veteran
Pretty good point, 520Fan,
The laws differ between the states, and it seems to me that if you only shoot someone if you HAVE to do so to save yourself or someone else, you'll be pretty okay in any of them.
Bob
The laws differ between the states, and it seems to me that if you only shoot someone if you HAVE to do so to save yourself or someone else, you'll be pretty okay in any of them.
Bob
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