Next Governor: Blackwell, Montgomery or Petro

[jgarvas]

Right vs Privilege?
Can't CCW be both? This subject has been beaten to death on this forum, and it is always going to boil down to a matter of opinion!

Another subject....,I hate to show my ignorance here, but I have learned SO much from reading the forums. Can someone explain what does "affirmative defense" mean?

Linda:

http://www.law.cornell.edu/lexicon/affi ... efense.htm
Affirmative Defense
A defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal or civil liability, even if it is proven that the defendant committed the alleged acts. Self-defense, insanity, and necessity are some examples of affirmative defenses. see, e.g. Beach v. Ocwen Fed. Bank, 523 U.S. 410 (1998).

To put this into english, lets say prior to HB12 being law you decided to carry a firearm concealed and you were caugh and charged with concealed carry.

Prior to HB12 there were four affirmative defenses outlined in Ohio Revised Code. Basically, you could claim you were transporting a large amount of money, you were a "prudent (wo)man", you were not otherwise engaged in illegal activity, so you should be found not guilty.

You're basically saying yes, I did what you accused me of, but I have an affirmative defense for doing what I did.

If someone uses deadly force in self-defense and they're charged with homicide or murder they use the affirmative-defense of self-defense, or "yes, I did shoot that person, but here is why my actions were justified"...

The problem with AD's is that they're NOT absolute. Your future is in the hands of the judge/jury. If they decide your situation didn't meet the AD's, then you're out of luck. I believe Jose Mesa (Indians Pitcher) was caught with a semi-auto in his car in Lakewood Ohio. I believe he tried the AD's (as a major league pitcher who most of NE Ohio wanted dead for losing the world series run) to claim fear for his life. He also had a lot of expensive "stuff" with him.

He lost on the AD's in Cuyahoga County Courts. He also lost on an attempted motion / challege of the law's constitutionality I believe.

Does that help?

I'll find the old AD's and post them here so you can see how they read.

[Linda]

Thanks Jeff!!! That very much helped!

[jgarvas]

I'll find the old AD's and post them here so you can see how they read.

Here is a current AD that was in HB12 and I believe is law today:

(D)(E) It is an affirmative defense to a charge under division (A) of this section of carrying or having control of a handgun other than a dangerous ordnance that the actor was not otherwise prohibited by law from having the handgun and that the handgun was carried or kept ready at hand by the actor for any lawful purpose and while in the actor's own home, provided that this affirmative defense is not available unless the actor, prior to arriving at the actor's own home, did not transport or possess the handgun in a motor vehicle in a manner prohibited by division (B) or (C) of section 2923.16 of the Revised Code while the motor vehicle was being operated on a street, highway, or other public or private property used by the public for vehicular traffic.

In other words, you can't carry a concealed firearm on your own property, but if you are doing so and don't have a license, there is an affirmative defense for doing so.

Here is what the old AD's looked like, sorta:

(C)(D) It is an affirmative defense to a charge under division (A) (1) of this section of carrying or having control of a weapon other than a handgun and other than a dangerous ordnance, that the actor was not otherwise prohibited by law from having the weapon, and that any of the following apply applies:

(1) The weapon was carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in or was going to or from the actor's lawful business or occupation, which business or occupation was of such a character or was necessarily carried on in such a manner or at such a time or place as to render the actor particularly susceptible to criminal attack, such as would justify a prudent person in going armed.

(2) The weapon was carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in a lawful activity and had reasonable cause to fear a criminal attack upon the actor or, a member of the actor's family, or upon the actor's home, such as would justify a prudent person in going armed.

(3) The weapon was carried or kept ready at hand by the actor for any lawful purpose and while in the actor's own home.

(4) The weapon was being transported in a motor vehicle for any lawful purpose, and was not on the actor's person, and, if the weapon was a firearm, was carried in compliance with the applicable requirements of division (C) of section 2923.16 of the Revised Code.

[SMMAssociates]

Linda:

"Affirmative Defense" was the law - originally "Case Law", but I think it got codified in the 70's - that basically said "if a reasonable and prudent man would carry a gun under the circumstances, you could be arrested, but not convicted." (It did say "man" - old law. )

Russian Roulette like our current vehicular carry, but also very simple. If a law abiding citizen had a reason - carrying a bank deposit after hours, for example, or taking an alarm drop at 0330, go ahead. DV, hiding from a battering spouse, etc., was likely to work. Very imperfect, and full of hazard for the LAC, but sort of "don't ask, don't tell".

This is all gone now.... The THL is supposed to cover DV and temporary safety issues, but is too difficult, IMHO, to get, and entails the risk of driving to the SO "naked". (I'm not endorsing going out and buying a gun and just carrying it, even if you have a justifiable need, but it was permitted.)

Regards,

[jgarvas]

Linda:

"Affirmative Defense" was the law - originally "Case Law", but I think it got codified in the 70's -

I've always been under the impression that Ohio's CCW Affirmative Defenses were born out of the original "black codes" from a very long time ago, where the laws prohibiting carrying firearms were only enforced against freed slaves.

In otherwords, selective enforcement.

I've done some google'ing on it but I've had limited luck finding any definative connection between the two.

[SMMAssociates]

Jeff:

Funny you should mention it....

I'm not sure if the case has been fully adjudicated or not, but there was a Concealed Weapons case against a Black barber in Youngstown that wasn't looking too good for the guy within the last year.

Basically, the guy was carrying, and the PD didn't appreciate it....

From what I got out of the news coverage (this happened before HB12 kicked in), it sure looked like "Black Code" stuff.... (The COP in Youngstown is Black, and an anti.... I think he was in office when this started.) It also looked like the guy would have passed muster if he'd been white, or just had better luck. He'd been held up a couple times, carried money to the bank, etc. I don't know if he had a record, though - that would bend the situation a bit, but AFAIK, he wasn't charged with "under disability"....

I also heard that the Affirmative Defense was used to persecute minor criminals and organized crime members, although the latter enjoyed considerable immunity in Youngstown.

One reason I think that Concealed Carry is such a mess in the blue cities is that the percentage of Blacks is quite high, and a Black man (or woman) with a gun scares the hell out of the liberals and does little for the leadership who want their constituents to be subservient....

This also explains the reason why HB12 is so screwed up.... The blue folks don't like the idea of anybody but themselves and their bodyguards being armed....

Regards,