Friday, May 24, 2019

Newly proposed Ohio legislation still wouldn’t protect homeowner who kills when not in danger

Published: 6/5/17 @ 12:05

By Ed Runyan


A recently introduced bill would make it less complicated for people to defend themselves with a gun or other weapon, but it wouldn’t give someone latitude to shoot because of an attack outside of their home.

Jim Irvine, president of the board of the Buckeye Firearms Association, supports House Bill 228, introduced in the Ohio House of Representatives on May 16, because individuals under deadly attack have enough to worry about.

They shouldn’t be second-guessed later as to whether they might have been able to avoid using deadly force against an attacker by retreating, he said.

There are several requirements, however, that have to be present for a person to use deadly force for defense in an attack, Irvine said, including:

The attacker has to have a gun or other weapon that could cause harm to the victim.

The attacker has to have proximity to harm the victim.

The attacker has to have the intent to harm to the victim.

“They all have to exist at the moment you use deadly force,” Irvine said. “That is the law” and that wouldn’t change under HB 228, he said.

“Also in the law is the duty to retreat, if able,” he said. Ohio should eliminate the duty to retreat, he said.

Consider the scenario where a thug attacks a woman with intent to kill, for instance in a parking garage.

“She has a duty under Ohio law to see if she can escape first. She has to make this decision in an instant, but it’s going to be debated over the next year in courts and in testimony,” Irvine said.

“Should she have tried to get in her car first? She’s under so much stress, all she’s thinking is, ‘I need to get my gun, and I’m not sure I have time to do anything else.’ We’re putting too many duties on the crime victim here.”

If the three conditions he mentioned earlier exist, “We shouldn’t then force you to jump through a legal hoop before you defend your life,” he said.

The office of Republican Dr. Terry Johnson of Scioto County, one of the primary sponsors of the legislation, gave a different list of elements necessary to claim self-defense, including:

The slayer must not be at fault in creating the situation giving rise to the confrontation.

The slayer must have a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was in the use of deadly force.

The slayer must not have violated any duty to retreat or avoid the danger.

HB 228 is proposing use of the following language: “A [judge] shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person’s residence reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety.”

Irvine said no one should take lightly taking someone’s life, but most of us “don’t want to kill.”

Many people in such a situation don’t take a life even though they could justify it. Most people he’s asked say they didn’t shoot because they didn’t have to.

“We don’t need a law to codify it. It’s ingrained in us,” he said.

In the months since Nasser Hamad shot and killed two people at his house on state Route 46 and injured three others when the five came to his house to fight him Feb. 25, many people have questioned why Hamad didn’t have the right to kill to defend himself.

Hamad is charged with two counts of aggravated murder and several counts of attempted aggravated murder because police say he was involved in a fistfight with one of the five in Hamad’s front yard, then went in the house, got a gun and came out shooting.

Irvine said the type of scenario described in the Hamad case doesn’t include all three of the requirements for using deadly force because Hamad went inside the house, where he was safe.

“He’s now the aggressor. He’s not being attacked,” Irvine said of Hamad.

Jeff Goodman, a local defense attorney, said the reason for the “duty to retreat” in Ohio law is “because what we don’t want is situations that can be avoided escalating into fatalities, especially in a state where we have open-carry rights, concealed-carry permits.”

Goodman said he doubts Ohio would eliminate the duty to retreat.

HB 228 has not had any hearings.

Trumbull County Prosecutor Dennis Watkins said current Ohio law didn’t stand in the way of a man living on Niles-Cortland Road in Niles from defending himself in 2013 when three men tried to break into his house with a crowbar late at night.

The man fired through the front door, killing one of the three and injuring a second one. The homeowner was not charged with any wrongdoing.

The sponsors of HB 228 are Republicans Dr. Terry Johnson of Scioto County and Sarah LaTourette, who represents Geauga County and parts of Portage County.

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