In an editorial titled, "Not Every Castle Has A Moat," the editors of the Amarillo Globe-News notes that Texas and 15 other states have Castle Doctrine/No Duty To Retreat laws. The state's new law was tested recently when one man shot a second individual during an altercation on the former's property.
The editors wrote: "Texans should have the right to use deadly force. Limiting these options to retreat first, fight back later could lead to tragic consequences for innocent victims."
A note to Ohio lawmakers; Please keep one very important thing in mind as you work through the Castle Doctrine legislation before the Senate and House of Representatives . . .
While current law says we all have a duty to retreat, people in wheelchairs, using canes or walkers, obese people, or parents with small children do not always have the ability to retreat.
12 March 2008
Texas Newspaper Says Residents Have A Right To Defend Themselves
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3 comments:
"While current law says we all have a duty to retreat, people in wheelchairs, using canes or walkers, obese people, or parents with small children do not always have the ability to retreat."
C'mon, Brent. I think you are a bright, articulate, reasonable guy. Do you really think the law in Ohio is that someone in a wheelchair has a duty to retreat beyond his/her capability?
There's a lot of reasons to pass the Castle legislation - I'm a HUGE proponent. But discrimination against the physically infirm is not one of them.
The duty to retreat includes the element of "when it is safe and reasonable to do so." The problem with the duty to retreat is not in its philosophy, I think if you have an obvious and safe exit from a deadly confrontation, you should take it rather than blaze away with your gun. The problem with the duty to retreat, and the absence of castle doctrine laws, is the difficulty in ascertaining when it is safe and reasonable to do so, and most importantly the allocation of the burden of proof as to the issue.
However, even the current-law duty to retreat covers the situations you cite. For example, someone with small children, who chooses to not take an easy exit out the back door leaving his children inside, but rather stays and slays an intruder, would never, EVER be held liable civilly or criminally for that decision (same thing with a wheelchair bound person not climbing out the window, etc.). The problem is, and what needs changing, is that the onus is on the victim to prove his defense both civilly and criminally.
Just trying to keep you honest... ;)
Keep up the great work!
A- Thanks for writing. I wasn't talking about crawling out of a window. I'm talking about out and about. You and I, if in Ohio, have a duty to retreat. Now granted, a prosecutor would be crucified by public, I would think, if they indicted a person in a wheelchair or a mom with kids for not retreating. But that is what the statute says.
And county prosecutors in Ohio are content to not have to do any hard work. Why shouldn't everyone be presumed innocent until proven guilty? Under Ohio law, if you use deadly force in self defense, you -- the crime victim -- are presumed guilty by the system and have to prove your innocence. The prosecutors don't want this changed.
I appreciate your comments, but I have never suggested that people "blaze away with their gun." Every situation is different. There is a reporter who really screwed the pooch in news coverage at the Ohio Statehouse last fall. A woman, an occasional contributor to this journal, testified that she is her first line of defense, also mentioning that she has locks on her windows and doors and a gigantic great dane. The reporter, without any follow up interview, wrote that criminals "would be shot on sight."
I truly appreciate your kudos, but I would ask you to stay honest about this also. Blazing away is not the answer, and not what I have ever suggested. Having the option to legitimately defend yourself without fear of civil prosecution from Mr. Scumbag's family is not unreasonable (I cannot believe I just wrote a variation of the "R" word). Here in Franklin County, it is not law, but a procedure passed down from prosecutor to prosecutor. EVERY shooting -- whether by private citizen or civilian law enforcement -- goes to the grand jury. Every one of them. Self defense, or police and bad guys. We are lucky. Most other counties in this state do not approach self defense shootings similarly, which is why No Duty To Retreat/Castle Doctrine is a common sense law. Sixteen other states already have this law in place. Ohio was the 17th state to enter the Union. Why not be the 17th state to pass such a law?
I 1000% agree it should be passed, you have NO argument from me (and I didn't mean to suggest that you are a proponent of "blaze-away" self-defense! I just thought your post was misleading with respect to what duty to retreat means, and when it applies. In my opinion, the reasons the Castle Doctrin MUST pass have little to do with the duty to retreat.
The supreme court of Ohio has said "one has no duty to retreat if he is assaulted in his home or business." That's all good, but the bad part is here (same case): "In order to prevail on the issue of self-defense, the accused [which is the victim in a self-defense scenario] must show that he was not at fault in starting the affray, and that he had a bona fide belief that he faced imminent danger of death or great bodily harm and that his only means of escape was the use of such force, and that he violated no duty to retreat or avoid the danger. If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense." State of Ohio v. Jackson, 490 N.E.2d 893 (Ohio 1986).
The whole issue, in my opinion, is the burden of proof/persuasion. If you purposely shoot and kill someone (meaning it wasn't an accident, not that you wanted specifically to KILL them), that is murder, period. Self-defense is what's called an affirmative defense - meaning yes I did it, but I shouldn't go to jail because... The ACCUSED, which in our self-defense situation is sadly the victim, bears the burden of proof.
I'm not nearly as worried about the Duty to Retreat being eviscerated by the Castle Doctrine, it's this burden of proof issue. In most cases, there's no compelling evidence either way, the evidence rests in equipoise (50/50). The problem is, when the evidence is 50/50, whoever bears the burden of proof LOSES! That is why the allocation of the burden of proof must change!
If we had to keep the current duty to retreat, as it has existed in common law for 100s of years, in order to get this law passed flipping the burden of proof, that would still be a HUGE victory for lawful self defense! The CRIMINAL would have to PROVE that you had a SAFE and REASONABLE means of retreat - almost impossible. That's a huge improvement over the victim having to prove they DIDN'T have one.
Ok, RANT off.
I know I comment often to challenge little things you write, but I hope you take it constructively. I only comment because I respect your thoughts and writings, and that's true of about 1% of what's out there. I know I kiss your butt in every comment, but you really do a fantastic job, and I agree with almost 100% of what you write.
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