S.B. 237: No duty to retreat

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rickt
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S.B. 237: No duty to retreat

Post by rickt »

S. B. No. 237 - Senator Johnson (R).
Cosponsors: Senators McColley (R), Brenner (R), Hoagland, Obhof (R), Schaffer (R), Rulli (R), Roegner (R).

To amend sections 2307.601, 2901.05, and 2901.09 and to enact sections 2901.091 and 2901.092 of the Revised Code to enact the Ohio Duty to Retreat Act to modify the law regarding self-defense
https://www.legislature.ohio.gov/legisl ... 133-SB-237
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Re: S.B. 237: No duty to retreat

Post by someguy »

If I read it correctly it looks like a good start to me.
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Re: S.B. 237: No duty to retreat

Post by JustaShooter »

someguy wrote:it looks like a good start to me.
Is there something you think was overlooked or should be added or changed? OFCC has worked with the drafters of the bill and can likely suggest amendments if we see where it should be improved.
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Re: S.B. 237: No duty to retreat

Post by WhyNot »

Is there something you think was overlooked or should be added or changed? OFCC has worked with...
Yes. Reminding the sponsors that the state wide police organizations are routinely WRONG on the chain rattling, wire hitting, and simulated lightning-bolts versions of ''it will cause blood runn'n in the streets'' and ''officers sssssafety is doomed'' cries.
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Re: S.B. 237: No duty to retreat

Post by MrMagoo »

WhyNot wrote:
Is there something you think was overlooked or should be added or changed? OFCC has worked with...
Yes. Reminding the sponsors that the state wide police organizations are routinely WRONG on the chain rattling, wire hitting, and simulated lightning-bolts versions of ''it will cause blood runn'n in the streets'' and ''officers sssssafety is doomed'' cries.
Noted. We have dropped this before and we will do it again at the proper time.

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Re: S.B. 237: No duty to retreat

Post by WhyNot »

Not to muddy the waters but I would favor a 2 step approach.

First step, this should be IMMEDIATE for current and future Ohio issued CHL holders. We have been/are/will be the safest group. And, already 'papered' i.e. NICS check+. Can there be any further debate, this has been hassled thru b4 already in previous OGA hearings, just accept the previous proponent/opponent testim. as-read and add a little...one more hearing...

Second tier should be, the debate, hassle, sausage makering for others including out of staters visiting, working etc. And in the interim, the first tier becomes evidence for the secondary as I am positive it's another 2 months, 3, 10 months hasselmatic ( IF THEN) (which ultimately leads into election cycles) (againe).
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Re: S.B. 237: No duty to retreat

Post by schmieg »

WhyNot wrote:Not to muddy the waters but I would favor a 2 step approach.

First step, this should be IMMEDIATE for current and future Ohio issued CHL holders. We have been/are/will be the safest group. And, already 'papered' i.e. NICS check+. Can there be any further debate, this has been hassled thru b4 already in previous OGA hearings, just accept the previous proponent/opponent testim. as-read and add a little...one more hearing...

Second tier should be, the debate, hassle, sausage makering for others including out of staters visiting, working etc. And in the interim, the first tier becomes evidence for the secondary as I am positive it's another 2 months, 3, 10 months hasselmatic ( IF THEN) (which ultimately leads into election cycles) (againe).
Regardless of hearings, nothing will be passed until after the elections next year.
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Re: S.B. 237: No duty to retreat

Post by Liberty »

JustaShooter wrote:
someguy wrote:it looks like a good start to me.
Is there something you think was overlooked or should be added or changed? OFCC has worked with the drafters of the bill and can likely suggest amendments if we see where it should be improved.
Are you guys aware that this bill would gut the burden of proof provisions from Am Sub HB 228, eff. 3/28/2019?

Last year the 132nd General Assembly changed Ohio’s self defense law to shift the burden of proof from the defendant to the state when self-defense is asserted and require the state to prove guilt beyond a reasonable doubt.

SB 237 would reverse that by deleting “the prosecution must prove beyond a reasonable doubt” (See lines 140, 141, 202, 203) what was added to R.C. § 2901.05(B)(1) and (4) by the 132nd General Assembly in Am Sub HB 228, eff. 3/28/2019, and replacing it with “the state proves by clear and convincing evidence.”

HB 381 does the same thing.
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Re: S.B. 237: No duty to retreat

Post by JediSkipdogg »

Liberty wrote:
JustaShooter wrote:
someguy wrote:it looks like a good start to me.
Is there something you think was overlooked or should be added or changed? OFCC has worked with the drafters of the bill and can likely suggest amendments if we see where it should be improved.
Are you guys aware that this bill would gut the burden of proof provisions from Am Sub HB 228, eff. 3/28/2019?

Last year the 132nd General Assembly changed Ohio’s self defense law to shift the burden of proof from the defendant to the state when self-defense is asserted and require the state to prove guilt beyond a reasonable doubt.

SB 237 would reverse that by deleting “the prosecution must prove beyond a reasonable doubt” (See lines 140, 141, 202, 203) what was added to R.C. § 2901.05(B)(1) and (4) by the 132nd General Assembly in Am Sub HB 228, eff. 3/28/2019, and replacing it with “the state proves by clear and convincing evidence.”

HB 381 does the same thing.
Yes, we are aware and our in contact with the sponsors to see about an amendment to change that.
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Re: S.B. 237: No duty to retreat

Post by Chuck »

Liberty wrote:
JustaShooter wrote:
someguy wrote:it looks like a good start to me.
Is there something you think was overlooked or should be added or changed? OFCC has worked with the drafters of the bill and can likely suggest amendments if we see where it should be improved.
Are you guys aware that this bill would gut the burden of proof provisions from Am Sub HB 228, eff. 3/28/2019?

Last year the 132nd General Assembly changed Ohio’s self defense law to shift the burden of proof from the defendant to the state when self-defense is asserted and require the state to prove guilt beyond a reasonable doubt.

SB 237 would reverse that by deleting “the prosecution must prove beyond a reasonable doubt” (See lines 140, 141, 202, 203) what was added to R.C. § 2901.05(B)(1) and (4) by the 132nd General Assembly in Am Sub HB 228, eff. 3/28/2019, and replacing it with “the state proves by clear and convincing evidence.”

HB 381 does the same thing.
Negative
The following is my reply to your same inquiry on the BFA forums
Liberty says:
”Last year the 132nd General Assembly changed Ohio’s self defense law to shift the burden of proof from the defendant to the state when self-defense is asserted and require the state to prove guilt beyond a reasonable doubt.”

This bill establishes an immunity hearing for a defendant who is claiming SYG status, and at this hearing, the prosecutor must prove by “clear and convincing evidence” that SYG doesn’t apply to the defendant if the case is to proceed. This is for the immunity hearing only and the burden of proof remains “beyond a reasonable doubt” at trial.
We cannot expect the prosecutor to prove “beyond a reasonable doubt” at the immunity hearing. That would make it the same as a trial. This is intended to avoid a trial for legal defensive gun use

The above applies to lines 140 and 141 in the bill

If passed, that section of the law would read:
” Sec. 2901.05. (A)(1) Every person accused of an offense is
presumed innocent until proven guilty beyond a reasonable doubt,
and the burden of proof for all elements of the offense is upon
the prosecution. The burden of going forward with the evidence
of an affirmative defense, and the burden of proof, by a
preponderance of the evidence, for an affirmative defense other
than self-defense, defense of another, or defense of the
accused's residence presented as described in division (B)(1) of
this section, is upon the accused.
(2) A person accused of an offense that involved th e
person's use or threatened use of force, including deadly force ,
against another has a right to a pretrial immunity hearing, a s
described in division (B)(1) of this section, regarding a clai m
of immunity from criminal prosecution based on self-defense ,
defense of another, or defense of that person's residence.

(B)(1) A person is allowed accused of an offense that
involved the person's use or threatened use of force, includin g
deadly force, against another who would like a pretrial hearin g
as described in division (A)(2) of this section shall file a
pretrial motion claiming that the person used or threatened to
act use the force, including deadly force, in self-defense,
defense of another, or defense of that person's residence. If,
at The filing of the motion establishes a prima facie claim o f
self-defense, defense of another, or defense of that person' s
residence. Upon the trial filing of
motion, the court shall hold a pretrial immunity hearing an d
shall grant the motion and hold that the accused person used or
threatened to use the force , including deadly force , in selfdefense,
defense of another, or defense of that person's
residence,unless the state proves by clear and convincing evidence that the
person did not use or threaten to us e the force,
including deadly force , in self-defense, defense of another, or
defense of that person's residence, as the case may be.
(2) Subject to division (B)(3) of this section, a person
is presumed to have acted in self-defense or defense of another
when using or threatening to use deadly force that is
intended or likely to cause death or great bodily harm to
another if any of the following apply: “


It then goes on to define the circumstances under which the SYG immunity would apply.

Regarding lines 202 and 203,

Further down the bill in section (B)(4), it simply says that the SYG claim described and quoted above in section (B)(2) are rebut table by the state, meaning at the immunity hearing, and the burden of proof once again is clear and convincing evidence, for the immunity hearing.

The burden of proof at trial remains "beyond a reasonable doubt"

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Re: S.B. 237: No duty to retreat

Post by Liberty »

I think DeWine went down to the sausage machine and threw a whole bottle of poison pills in it. All of the legislation needs to be gone through with a fine-tooth comb by skeptical trained eyes. As I go through these I have found a lot of very sneaky stuff.

You are correct that HB 381 and SB 237 would create provisions for a pretrial immunity hearing for defendants asserting self-defense, defense, defense of another, or defense of that person's residence, and that the prosecutor would have to prove by clear and convincing evidence that the defendant did not act in self-defense, defense, defense of another, or defense of that person's residence.

However, R.C. § 2901.05(A)(1) provides that persons going forward with affirmative defenses bear the burden of proof, by a preponderance of the evidence, except for self-defense, defense of another, or defense of the accused's residence as presented in the pretrial immunity hearing, which would be before a judge and not a jury. If the judge would decide that the person did not act justifiably, then the case would presumably go to trial where the prosecutor would have to prove the elements of the crime beyond a reasonable, e.g., that John Doe shot Joe Dirtbag.

It is unclear whether a defendant would be permitted to assert self-defense at a trial if a judge ruled in the pretrial immunity hearing that the defendant did not act in self-defense. Probably not. There is usually a determination by the court in such cases if a defendant is permitted to assert self-defense and whether the court must instruct the jury on self-defense.

So, what we had in Ohio before 3/28/2019 was the state had to prove to a jury, e.g., that John Doe shot Joe Dirtbag beyond a reasonable doubt, and John Doe could assert self-defense and be required to prove it to a jury by a preponderance of the evidence.

Am Sub HB 228, eff. 3/28/2019, changed that by inserting an exception in R.C. §§ 2901.05(A)(1) and 2901.05(B)(1) and (4) that would require the state to prove to a jury, e.g., that John Doe shot Joe Dirtbag and that John Doe did not act in self-defense beyond a reasonable doubt.

HB 381 and SB 237 takes the issue of self-defense out of the hands of the jury and puts into the hands of a judge and lowers the standard of proof to clear and convincing evidence.
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Re: S.B. 237: No duty to retreat

Post by Chuck »

Firstly, talking about what the law said before 3/28/2019 is pointless.
It doesn't matter what the law used to be, what matters is the way the law is now.

1.) For the record, ORC 2901.05(A)(1) currently reads, in its entirety:

"(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense other than self-defense, defense of another, or defense of the accused's residence as described in division (B)(1) of this section, is upon the accused.

If the bill(s) pass, it will then read:
"(A)(1) Every person accused of an offense is
presumed innocent until proven guilty beyond a reasonable doubt,
and the burden of proof for all elements of the offense is upon
the prosecution. The burden of going forward with the evidence
of an affirmative defense, and the burden of proof, by a
preponderance of the evidence, for an affirmative defense other
than self-defense, defense of another, or defense of the
accused's residence presented as described in division (B)(1) of
this section, is upon the accused."


I doubt that the addition of the word "presented" is objectionable to you, and as you can see, the words "preponderance of evidence " are already there.
Your claim that AM HB228 inserted the words "beyond a reasonable doubt" is false.
Those words are not in the law
Would it be safe to presume you have no problem with this section?

The other two instances, as I have already explained, establish the immunity hearing and assign it a burden of proof of "clear and convincing evidence"
So what is your objection?

Section (A)(1) says the burden of proof for self defense cases is "beyond a reasonable doubt", and section (C) says that the judge must instruct the jury on those terms by giving them the definitions of "reasonable doubt" and "beyond a reasonable doubt". Further, section (E) supplies the actual definition to be given to the jury.

It is my considered opinion that after the bill(s) pass, burden of proof will remain, as per the law, at "beyond a reasonable doubt"
For it to not be, the court must ignore ORC 2901.05(A)(1) completely

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Re: S.B. 237: No duty to retreat

Post by Liberty »

R.C. § 2901.05(C)&(E) refers to the burden of proof for the elements of the crime, e.g., John Doe shot Joe Dirtbag. The standard of proof for affirmative defenses is addressed in R.C. § 2901.05(A)(1), which states that affirmative defenses must be proven by the defendant by a preponderance of the evidence. It DOES NOT say that self-defense cases require proof beyond a reasonable doubt.

Am Sub HB 228, eff. 3/28/2019, added an exception within R.C. § 2901.05(A)(1) for the affirmative defense of self-defense and created R.C. § 2901.05(B)(1) to define that exception and require that the state must prove beyond a reasonable doubt that the defendant did not act in self-defense, i.e., “other than self defense, defense of another, or defense of the accused's residence as described in division (B)(1) of this section.” The result is that the state must prove to a jury beyond a reasonable doubt, e.g., that John Doe shot Joe Dirtbag and that John Doe did not act in self-defense.

In HB 381 and SB 237, the standard of proof for affirmative defenses in R.C. § 2901.05(A)(1) remains that affirmative defenses must be proven by the defendant by a preponderance of the evidence, and the exception would be amended as follows: “other than self defense, defense of another, or defense of the accused's residence presented as described in division (B)(1) of this section.” Then R.C. § 2901.05(A)(2) would create a pretrial immunity hearing, and amendments to R.C. § 2901.05(B)(1) would require the state to prove to a judge by clear and convincing evidence that the defendant did not act in self-defense before the case may proceed.

So, under HB 381 and SB 237, here is how it would work:

1. Joe Dirtbag tries to rape Jane Doe in parking garage
2. John Doe intervenes and shoots Joe Dirtbag in the knee with a 44 magnum
3. John Doe is arrested for felonious assault
4. John Doe’s lawyer files a motion asserting defense of another and requests a pretrial immunity hearing
5. The prosecutor puts Joe Dirtbag on the stand who testifies that he was only flirting with Jane Doe, began to retreat when John Doe brandished his 44 magnum, and then John Doe shot him.
6. Both Jane and John Doe testify that Joe Dirtbag attempted to rape Jane and that John fired his weapon out of necessity to stop the rape.
7. The Judge finds Joe Dirtbag’s testimony clear and convincing and denies John Doe’s request for immunity.
8. The case proceeds to trial, and the judge prohibits John Doe’s lawyer from arguing defense of another or from asking questions regarding defense of another and refuses to instruct the jury on defense of another, and instructs the jury that they must find the defendant guilty if they find beyond a reasonable doubt that John Doe caused serious physical harm to Joe Dirtbag.
9. John Doe is found guilty based upon John Doe’s admissions that he shot Joe Dirtbag and because the jury did not know that Joe Dirtbag had previously been convicted of gross sexual imposition three times and rape two times, and that he had been shot while trying to rape Jane Doe.
10. John Doe, who has no criminal record, is sentenced to five years in prison, and Jane Doe has to go on welfare to support their four children because John Doe was the breadwinner and they had to sell their home to pay their lawyer.
11. John Doe files an appeal, which is denied after the court of appeals cites State v. Melchior (1978), 56 Ohio St. 2d 15, and rules that John Doe did not introduced sufficient evidence, which if believed, would raise a question in the minds of reasonable men concerning the existence of such issue as evidenced by the trial court’s denial of immunity at the pretrial immunity hearing. The appeals court also rules that it will not disturb the judges finding that he found Joe Dirtbag’s testimony clear and convincing because it is not the role of the appeals court to second guess the trier of fact when such trier of fact believes one side over another.

With the law as it is now, John Doe would present his affirmative defense to the Jury, and Joe Dirtbag would have to testify where he could be cross-examined in front of the jury where his prior record would be discussed and properly admitted. The judge would have to instruct the jury on defense of another and the jury, not a judge, would decide whether the state proved beyond a reasonable doubt that John Doe did not act in defense of another.

And how do you fix this? Leave it alone, and create a provision that requires an award of attorney’s fees and all actual costs upon acquittal in self-defense case.
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Re: S.B. 237: No duty to retreat

Post by Liberty »

Additionally, even if a judge would allow a defendant who failed to establish immunity at a pretrial immunity hearing to assert self-defense at a trial there would be nothing in the law that would require the state to prove beyond a reasonable doubt that the defendant did not act in self-defense. That standard currently is found within R.C. § 2901.05(B)(1) not in R.C. § 2901.05(A)(1), which refers to R.C. § 2901.05(B)(1) for the standard of proof, and SB 237 changes reasonable doubt to clear and convincing evidence and is only applicable to pretrial immunity hearings. R.C. § 2901.05(A)(1) places the burden of proof on the defendant to prove by a preponderance of the evidence all affirmative defenses except as presented in R.C. § 2901.05(B)(1), which is the pretrial immunity hearing.

Therefore, if a defendant were to be permitted to present self-defense at a trial before a jury, the standard would revert back to what is was prior to Am Sub HB 228, eff. 3/28/2019, i.e., defendant having to prove by a preponderance of the evidence that he/she acted in self-defense.
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Re: S.B. 237: No duty to retreat

Post by Liberty »

It might help to print out both Am Sub HB 228, eff. 3/28/2019 and SB 237 and compare R.C. § 2901.05 side by side.
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