Gun Rights / Gun Control Law

Castle Doctrine in Ohio
The Armed Citizens Network recently sent some general questions to panel legal counsel pertaining to their respective states. I thought I would share my response. First, the questions.

In the state/states in which you practice law, what latitude is granted the armed citizen defending against attack inside his/her own home? Can the citizen use defensive deadly force inside their home without retreating? Against an intruder who is not actively attacking (perhaps has broken in but is not compliant when the homeowner orders them to leave)? How about shooting without issuing a warning (maybe the intruder is about to enter a child's room)?

Can the citizen successfully make the claim that an attached garage was part of their domicile if they use deadly force against an intruder there? What about out buildings or unattached garages or on properties like the lawn or back yard? Where is the line drawn?

Ohio has a recent castle doctrine law, but had relatively good case law even before the castle doctrine statute. Under the case law, a castle doctrine even applied at one's place of employment. There was no duty to retreat, but the burden of proving self defense was on the victim who killed his or her attacker.

Under the current castle doctrine statute, the armed citizen in his or her own home is presumed to be acting in self defense when shooting someone who has no right to be there, i.e., "if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force." The shooting must still be in self defense. The shooter must still be in reasonable fear of great bodily harm for self or another in the residence, or the shooting will not be justifiable. The presumption of self defense may be rebutted by a preponderance of the evidence. A warning before shooting is not required, but the lack of a warning is a fact, taken with all other facts that may bear on whether there was a reasonable fear of great bodily harm.

It is not clear in Ohio whether an attached garage is included in the residence for castle doctrine purposes. An unattached garage is probably not. Here is the definition of dwelling to which the castle doctrine statute applies: "(2) "Dwelling" means a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night, regardless of whether the building or conveyance is temporary or permanent or is mobile or immobile. As used in this division, a building or conveyance includes, but is not limited to, an attached porch, and a building or conveyance with a roof over it includes, but is not limited to, a tent."

Note that the definition of dwelling "includes but is not limited to, an attached porch...." An attached garage would not seem much different from an attached porch. Specific cases will have to decide that later. There is a duty to retreat when attacked on one's own driveway outside the home. Cleveland v. Hill, 63 Ohio App.3d 194, 578 N.E.2d 509 (Ohio App. 8 Dist., 1989). I found no Ohio case addressing the duty to retreat from an unattached garage.

Even if the statutory castle presumption does not apply, Ohio's common law castle doctrine decisions would apply. There is no duty to retreat from one's own business, for example, but the burden of proving self defense would be different. Grahm v. State Of Ohio, 98 Ohio St. 77, 120 N.E. 232 (1918). There is no duty to retreat when attacked on a campsite, State v. Marsh, 71 Ohio App.3d 64, 593 N.E.2d 35 (Ohio App. 11 Dist., 1990) . However, there is a duty to retreat when attacked on one's own driveway outside the home. Cleveland v. Hill, 63 Ohio App.3d 194, 578 N.E.2d 509 (Ohio App. 8 Dist., 1989). I found no Ohio case addressing the duty to retreat from an unattached garage.

Every case is fact specific:

... a person is relieved of the duty where there is no reasonable or safe means to avoid the confrontation. State v. Williford (1990), 49 Ohio St.3d 247, 250, 551 N.E.2d 1279, 1282. Accordingly, the use of deadly force is justified and the failure to retreat is of no consequence where retreat would increase the actor's own danger of death or great bodily harm.

State v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (Ohio, 1997)(Cook, dissenting).

Heller, Gun Rights In Ohio
With the recent United States Supreme court decision in Heller v. District of Columbia, 554 U.S. ___ (2008), a section on gun rights and gun control laws seems timely.

United States Constitution, 2nd Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Ohio Constitution, Article I, Section 4
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

Ohio Militia
All citizens of the state between the ages of 18 and 67 are members either of the organized militia or the unarganized militia under Revised Code 5923.01 which reads in full:

(A) The Ohio organized militia consist of all citizens of the state who are not permanently handicapped, as handicapped is defined in section 4112.01 of the Revised Code, who are more than seventeen years, and not more than sixty-seven years, of age unless exempted as provided in section 5923.02 of the Revised Code, and who are members of one of the following:

   (1) The Ohio national guard;

   (2) The Ohio naval militia;

   (3) The Ohio military reserve.

(B) The Ohio national guard, including both the Ohio air national guard and the Ohio army national guard, the Ohio naval militia, and the Ohio military reserve are known collectively as the Ohio organized militia.

(C) The Ohio naval militia and the Ohio military reserve are known collectively as the state defense forces.

(D) The unorganized militia consists of those citizens of the state as described in division (A) of this section who are not members of the Ohio organized militia.

(E) No troops shall be maintained in time of peace other than as authorized and prescribed under the "Act of August 10, 1956," 70A Stat. 596, 32 U.S.C.A. 101 to 716. This limitation does not affect the right of the state to the use of its organized militia within its borders in time of peace as prescribed by the laws of this state. This section does not prevent the organization and maintenance of police. [Emphasis added.]

Preemption of Home Rule
In Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, the Ohio Supreme Court found that Ohio's statute permitting persons to obtain permits and carry concealed weapons on public property outside of public buildings was a law of general application preempting an attempt by the city of Clyde to prohibit the carrying of firearms in a city park. Because the Clyde ordinance prohibiting firearms in teh city park was an execercise of its police power, its rights of home rule did not supersede the state-wide concelaled carry regulation what is a law of general application as specficially stated in RC 9.68(A): [T}he general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession , ... transport, storage, carrying, ... or other transfer of firearms."

Carroll, Ucker & Hemmer LLC represents small and large businesses in the Columbus, Worthington and all over Ohio. The firm does not handle criminal representation.

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