Someone goes for your gun

[johngalt]

Originally posted by cmort666:

Where did this happen?

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]

Originally posted by johngalt:

Originally posted by cmort666:

Where did this happen?

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.

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.

 

[johngalt]

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.

 

[straightshooter1]

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

 

[CelticSire]

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.

 

[straightshooter1]

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

 

[flop-shank]

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]

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.

 

[johngalt]

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]

Originally posted by straightshooter1:
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)./QUOTE]

That's in any state, Counselor. It's called the 5th Amendment.

 

[straightshooter1]

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

 

[redstategunnut]

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.

 

[CelticSire]

Originally posted by straightshooter1:
I think I have heard of that Amendment. In the Constitution somewhere, isn't it?

Bob

Yeah, somewhere in there, along with that pesky 4th and 6th.

 

[straightshooter1]

Oh yeah! I remember now! Those are the ones that certain folks keep accusing LEOs and Prosecutors of violating ALL the time.

Bob

 

[CelticSire]

Originally posted by straightshooter1:
Oh yeah! I remember now! Those are the ones that certain folks keep accusing LEOs and Prosecutors of violating ALL the time.

Bob

Only when necessary, because "Attitude is everything"

 

[J.P.]

Originally posted by Robert B:
Situation 1: Someone is beating down your front door. You draw and go low ready. He busts into your house. He's unarmed. Instead of running out your door, he approaches you. I'm thinking if he gets my gun my family is dead. So I shoot an unarmed man. Is this the right choice?

Situation 2: You're on the street. Someone threatens you. You think you see a weapon in his hand. You draw and go low ready. It turns out that he's unarmed. Instead of running from you, he still threatens and approaches you. I'm again thinking that if he takes my gun, I'm dead. Do you shoot this person?

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.

 

[gunhawk]

Originally posted by straightshooter1:
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

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]

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

 

[ImprovedModel56Fan]

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.

 

[straightshooter1]

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