S.B. 237: No duty to retreat

Discussion of Firearm Politics & Legislation. This forum is now strictly limited to discussions directly related to firearms.

Moderators: Chuck, Mustang380gal, Coordinators, Moderators

User avatar
Chuck
OFCC Director
OFCC Director
Posts: 4752
Joined: Mon Nov 16, 2009 7:06 am
Location: Licking County

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

Post by Chuck »

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
Am I to understand you want the entire SYG bill(s) dropped and replaced with attorney's awards?

I'm still trying to make sense of the rest of it
I'm having trouble reconciling your #8 with the bill
Ain't activism fun?

"Associate with men of good quality if you esteem your own reputation; for it is better to be alone than in bad company. " - George Washington

"I am only one, but I am one. I cannot do everything, but I can do something.
And because I can not do everything, I will not refuse to do the something I can do.
What I can do, I should do. And what I should do, by the grace of GOD, I will do."
- Edward Everett Hale (descendant of Nathan Hale)
Liberty
Posts: 91
Joined: Tue Mar 03, 2015 10:38 pm
Location: Akron

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

Post by Liberty »

When an affirmative defense is claimed by a defendant, he/she must have sufficient evidence, which if believed, would raise a question in the minds of reasonable men concerning the existence of the affirmative defense. See State v. Melchior (1978), 56 Ohio St. 2d 15. If he/she does not, then evidence about such affirmative defense is not relevant and may be excluded based upon relevance. That happens routinely. If S.B. 237 becomes law, the judge decides in the pretrial immunity hearing whether a defendant used force justifiably. If that judge already has ruled that the defendant did not use force justifiably, chances are that the judge will not permit the defendant to argue self-defense and will refuse to instruct the jury on self-defense.

And you can add to my scenario that the judge is a democrat, supported Robert Francis O'Rorke, and has donated to Bloomberg's causes. That is what you get with Judges in the big cities.

I am not necessarily opposed to having a pretrial immunity hearing, but I don't want it to replace requiring the state to prove to a jury beyond a reasonable doubt the elements of the offense and that the defendant did not act in self-defense. I think what we have now is much better than what SB 237 would give us. I would much rather have a jury have to find beyond a reasonable doubt that defendants have not acted in self-defense, than a judge having to decide by clear and convincing evidence that defendants have not acted in self-defense. If you really want a pretrial immunity hearing, put all of the language for the hearing in R.C. § 2901.05(A)(2) and leave R.C. § 2901.05(B)(1) alone. Then, a defendant who loses a pretrial immunity hearing could argue that he/she is entitled to raise the issue before the jury because the jury is required to scrutinize the issue of self-defense with a higher standard, i.e., beyond a reasonable doubt--as currently required by R.C. § 2901.05(B)(1).

And mandatory awards of attorney's fees will reign in prosecutors. That coupled with the current legal standard of having to prove defendants did not act in self-defense will make prosecutors be vary careful which cases they prosecute. They could get fired quick for losing a case and their boss having to pay over $100,000.00 in attorneys fees out of his/her budget.

There are other issues with SB 237 that I will write about once we get this sorted out.
WhyNot
OFCC Member
OFCC Member
Posts: 1221
Joined: Tue Dec 18, 2012 8:23 am
Location: NW Ohio

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

Post by WhyNot »

Could be just another attempt to ''fix'' a bill that wasn't broken perhaps?

Like this.

Senator X (don't remember his name)(maybe a Rep) didn't like the no front license plate bill...once it passed. Try to sneak, er snake something in afterwards, to ''fix'' it.


Similarly... someone doesn't like us FREE CITIZENS being treated the exact same as 49 other states 8) re: innocent until can't be proven guilty; all! hail! the powerful state, put a bill in that removes the RECENT changes

Color me skeptical
Acquisitions thus far:

-Slingshot
-Butter knife
-Soda straw and peas
-Sharpened pencil
-Newspaper roll
--water balloon (*diversionary*)

Yeah, I'm that good
Liberty
Posts: 91
Joined: Tue Mar 03, 2015 10:38 pm
Location: Akron

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

Post by Liberty »

You may be right WhyNot. I am still skeptical about the misplacement of the shockwave language, which could have been an effort to derail the bill. I do know that prosecutors really hate that standard of proof. It makes their job more difficult. I also think this is DeWine's M.O., and there are things in other bills that are sneaky.
User avatar
Werz
OFCC Patron Member
OFCC Patron Member
Posts: 5506
Joined: Sun Aug 16, 2009 2:37 am

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

Post by Werz »

I was asked to weigh in this. It is interesting that this bill is less "stand your ground" than it is an mechanism to create a pretrial determination of immunity to avoid any trial going forward. A handful of states have enacted such a mechanism. Based on my reading of the bill, here are my concerns:

[1] Placing a "clear and convincing evidence" burden on the state to disprove self-defense at a pretrial immunity hearing is a higher burden than what is applied by other states in pretrial determinations. Not only does that create a potential "poison pill" in the bill, even if the bill passed, it could create a risk of negative judicial review. Keep in mind that a pretrial determination of immunity, circumventing a determination by an impartial jury of peers, would, and should, require a very different burden of proof than what is required at trial. South Carolina, Florida, Georgia, Alabama, and Colorado all expect the defendant to establish self-defense by a preponderance of the evidence at a pretrial immunity hearing. Kansas and Kentucky require the state only to establish probable cause that self-defense does not apply. Requiring the state to establish probable cause may or may not be a lesser burden than a preponderance of the evidence (courts tend to be very fuzzy on that comparison), but it's definitely less than a burden of clear and convincing evidence. Some of those states have also limited the evidence that can be presented at a pretrial immunity hearing because they don't want a bunch of "mini-trials" for pretrial hearings without a jury. Placing that high a burden on the state at a pretrial hearing, for the purpose of preempting a trial by jury, is likely to kill the legislation.

[2] The proposed legislation basically guts the current R.C. 2901.05 and rewrites it in favor of a pretrial determination of immunity, instead of creating a new code section for that purpose. When reading the bill as a whole, that creates a big problem. R.C. 2901.05 was the section that was modified, effective March 28, 2019, to require the state to disprove self-defense by proof beyond a reasonable doubt. Those provisions are now crossed out, in favor of a pretrial hearing to grant immunity and preempt a trial by jury, requiring the state, at that pretrial hearing, to disprove self-defense by clear and convincing evidence. If the pretrial determination of immunity fails, the only option for the defense at trial would be common-law self-defense. See proposed R.C. 2901.09(D). That would mean that the accused will be booted back to the old common-law self-defense, under which the accused must establish self-defense by a preponderance of the evidence, and the old common-law castle doctrine, without all the nice statutory presumptions and definitions. Is that really what you want? It might be a pain in the butt, but the smart thing would be to leave alone the "beyond a reasonable doubt" provisions in R.C. 2901.05(B)(1) and add in elsewhere the provisions for pretrial determinations of immunity.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
-- BobK
Open carry is a First Amendment exercise.
M-Quigley
Posts: 4768
Joined: Wed Jun 24, 2015 10:06 pm
Location: Western Ohio

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

Post by M-Quigley »

Thanks Werz for explaining that.
techguy85
Posts: 1332
Joined: Mon Jul 16, 2012 8:55 am
Location: Columbus

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

Post by techguy85 »

Werz wrote:I was asked to weigh in this. It is interesting that this bill is less "stand your ground" than it is an mechanism to create a pretrial determination of immunity to avoid any trial going forward. A handful of states have enacted such a mechanism. Based on my reading of the bill, here are my concerns:

[1] Placing a "clear and convincing evidence" burden on the state to disprove self-defense at a pretrial immunity hearing is a higher burden than what is applied by other states in pretrial determinations. Not only does that create a potential "poison pill" in the bill, even if the bill passed, it could create a risk of negative judicial review. Keep in mind that a pretrial determination of immunity, circumventing a determination by an impartial jury of peers, would, and should, require a very different burden of proof than what is required at trial. South Carolina, Florida, Georgia, Alabama, and Colorado all expect the defendant to establish self-defense by a preponderance of the evidence at a pretrial immunity hearing. Kansas and Kentucky require the state only to establish probable cause that self-defense does not apply. Requiring the state to establish probable cause may or may not be a lesser burden than a preponderance of the evidence (courts tend to be very fuzzy on that comparison), but it's definitely less than a burden of clear and convincing evidence. Some of those states have also limited the evidence that can be presented at a pretrial immunity hearing because they don't want a bunch of "mini-trials" for pretrial hearings without a jury. Placing that high a burden on the state at a pretrial hearing, for the purpose of preempting a trial by jury, is likely to kill the legislation.

[2] The proposed legislation basically guts the current R.C. 2901.05 and rewrites it in favor of a pretrial determination of immunity, instead of creating a new code section for that purpose. When reading the bill as a whole, that creates a big problem. R.C. 2901.05 was the section that was modified, effective March 28, 2019, to require the state to disprove self-defense by proof beyond a reasonable doubt. Those provisions are now crossed out, in favor of a pretrial hearing to grant immunity and preempt a trial by jury, requiring the state, at that pretrial hearing, to disprove self-defense by clear and convincing evidence. If the pretrial determination of immunity fails, the only option for the defense at trial would be common-law self-defense. See proposed R.C. 2901.09(D). That would mean that the accused will be booted back to the old common-law self-defense, under which the accused must establish self-defense by a preponderance of the evidence, and the old common-law castle doctrine, without all the nice statutory presumptions and definitions. Is that really what you want? It might be a pain in the butt, but the smart thing would be to leave alone the "beyond a reasonable doubt" provisions in R.C. 2901.05(B)(1) and add in elsewhere the provisions for pretrial determinations of immunity.
I agree with Werz here. Get rid of the pre-trial immunity hearing section unless you can break it out of the changes we just won to place the BOP on the prosecution (where it belongs.

Good catch on that, btw, I didn't notice it when I read through the bill.
User avatar
Chuck
OFCC Director
OFCC Director
Posts: 4752
Joined: Mon Nov 16, 2009 7:06 am
Location: Licking County

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

Post by Chuck »

We have a correction in the works
Ain't activism fun?

"Associate with men of good quality if you esteem your own reputation; for it is better to be alone than in bad company. " - George Washington

"I am only one, but I am one. I cannot do everything, but I can do something.
And because I can not do everything, I will not refuse to do the something I can do.
What I can do, I should do. And what I should do, by the grace of GOD, I will do."
- Edward Everett Hale (descendant of Nathan Hale)
Liberty
Posts: 91
Joined: Tue Mar 03, 2015 10:38 pm
Location: Akron

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

Post by Liberty »

I have two other specific objections to provisions in SB 237 that deal with the expansion of governmental powers and control and taking existing rights away from citizens.

My first objection is found in lines 71-72 and 313-314 that precludes persons who are in violation of R.C. § 2923.13 (having weapons while under disability) from using the affirmative defense of self defense. This would likely be challenged in the courts and ruled to be unconstitutional. In State v. Hardy (1978), 60 Ohio App.2d 325, 14 O.O.3d 289, 397 N.E.2d 773, it was established that even persons subject to the firearms prohibitions in R.C. § 2923.13, retain the right under the U.S. and Ohio Constitutions to self-defense, and therefore, a conviction for violating R.C. § 2923.13 is unconstitutional when the firearm is not previously possessed and is acquired and used during imminent threat of harm. The precedent in Hardy has not been overturned and has been cited as the standard in many, many subsequent appellate cases.

Moreover, lines 71-72 and 313-314 seeks to take existing rights away from citizens. Does OFCC want to be known for that? Those lines should be removed. The issue they seek to remedy has already been resolved by the courts on Constitutional grounds, and to the contrary. There is no need to put them in this bill.

I should also note that the republicans are simultaneously seeking to greatly expand who is prohibited from possessing firearms with HB 354 to include non-violent offenses such as such as passing bad checks, having a hidden compartment in a car, misuse of credit cards, unauthorized use of a vehicle, playing unlicensed bingo, etc… I wrote about this in the forum on Nov. 14th. It seeks the same result as the poison pill that was in HB 203 back in 2013 that I and Werz brought to light, which was eventually removed from what ultimately became law.

The other objection that I have is with lines 61-64 and 303-306, which precludes self-defense from unlawful arrest under any circumstances. This is another issue regarding Constitutional law that the courts have long ago resolved. There are state and federal cases that outline very limited and specific circumstances where self-defense is justified. A blanket ban on self-defense of unlawful arrest will likely be challenged in the courts and ruled unconstitutional.

Lines 61-64 and 303-306 are worded in such a way that a rouge police officer could force his way into his neighbor’s home, rape her after telling her she is under arrest, and she is legally prohibited from resisting. While he could be prosecuted for raping her, if she resisted, she would be legally prohibited from claiming self-defense in court. It is an attempted power grab for the government, and is not necessary; the courts have already dealt with the issue. There is no need to put them in this bill. Does OFCC want to be known for promoting unlawful arrests?
User avatar
Chuck
OFCC Director
OFCC Director
Posts: 4752
Joined: Mon Nov 16, 2009 7:06 am
Location: Licking County

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

Post by Chuck »

Liberty wrote: Does OFCC want to be known as
Believe it or not, we don't do this for recognition or to "be known as" anything.
We are simply trying to make the laws in our state better.
Ain't activism fun?

"Associate with men of good quality if you esteem your own reputation; for it is better to be alone than in bad company. " - George Washington

"I am only one, but I am one. I cannot do everything, but I can do something.
And because I can not do everything, I will not refuse to do the something I can do.
What I can do, I should do. And what I should do, by the grace of GOD, I will do."
- Edward Everett Hale (descendant of Nathan Hale)
Liberty
Posts: 91
Joined: Tue Mar 03, 2015 10:38 pm
Location: Akron

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

Post by Liberty »

I think it is fine that you don’t do this for social status, but the reputation of your organization is directly related to your ability to influence the legislative process. It may very well be that your opposition has poisoned legislation in order to drive a wedge between your organization and people who support your organization in order to make your organization less effective.

I don’t do this for social status either. I want freedom for myself, my family, and for my fellow countrymen.

So let me ask this a different way. Do you think including lines 71-72 and 313-314 and lines 61-64 and 303-306 makes Ohio laws better for everyone? As I pointed out, the issues addressed therein have already been settled by the courts, take away freedom for some of our countrymen and give more power to the government. Moreover, they are not necessary to eliminating Ohio’s duty to retreat. While other provisions in the bill repeal Ohio’s duty to retreat, those provisions take away the right of self-defense completely for some people. And this is being proposed alongside other proposals (i.e., HB 354) to greatly expand who would fall in one of those categories.

I would strongly recommend that you ask the legislators to remove lines 71-72 and 313-314 and lines 61-64 and 303-306 from the bill.
User avatar
Chuck
OFCC Director
OFCC Director
Posts: 4752
Joined: Mon Nov 16, 2009 7:06 am
Location: Licking County

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

Post by Chuck »

The sponsor is asking for our members testimony to help pass this out of committee.
Hearing this Weds. Dec. 11 at 4:00 pm in the Senate Finance Hearing Room
The time is later to allow working folks a chance to attend.
They request, but don't require, testimony be submitted 24 hours in advance, and be prepared to fill out a witness form, with your name, etc.

Please attend if you can, to help fill the room, and offer testimony if so inclined
We need all the bodies we can get, and my job prevents me from making it

Thank you
Ain't activism fun?

"Associate with men of good quality if you esteem your own reputation; for it is better to be alone than in bad company. " - George Washington

"I am only one, but I am one. I cannot do everything, but I can do something.
And because I can not do everything, I will not refuse to do the something I can do.
What I can do, I should do. And what I should do, by the grace of GOD, I will do."
- Edward Everett Hale (descendant of Nathan Hale)
Liberty
Posts: 91
Joined: Tue Mar 03, 2015 10:38 pm
Location: Akron

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

Post by Liberty »

I am not supporting this bill until I see amendments fixing the problems with it.
Liberty
Posts: 91
Joined: Tue Mar 03, 2015 10:38 pm
Location: Akron

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

Post by Liberty »

Where is the fix for this bill? Do I have to come down and give opposition testimony?
User avatar
Chuck
OFCC Director
OFCC Director
Posts: 4752
Joined: Mon Nov 16, 2009 7:06 am
Location: Licking County

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

Post by Chuck »

Liberty wrote:Where is the fix for this bill? Do I have to come down and give opposition testimony?
Yes you should do that.
Ain't activism fun?

"Associate with men of good quality if you esteem your own reputation; for it is better to be alone than in bad company. " - George Washington

"I am only one, but I am one. I cannot do everything, but I can do something.
And because I can not do everything, I will not refuse to do the something I can do.
What I can do, I should do. And what I should do, by the grace of GOD, I will do."
- Edward Everett Hale (descendant of Nathan Hale)
Post Reply