Submitted by cbaus on October 11, 2013 - 8:00am.
Editor's Note: - The following "Law You Can Use" Consumer Information
Column, written by Buckeye Firearms Association Legal Chair Ken Hanson, is being provided by the Ohio State Bar Association to news outlets across the state. It has already been published at Akron.com.
Q: I've been hearing about "stand-your-ground" laws in the news. What does Ohio law say about using lethal force in a self-defense situation?
A: In Ohio, if you use lethal force in self-defense you must prove, by a "preponderance” (greater weight) of the evidence, that you were properly acting in self-defense. Under current law, in order to act in self-defense, you must prove: 1) you were not at fault in creating the situation; 2) you had an honest
belief and reasonable grounds to believe that you were in imminent danger of suffering serious physical harm or death, and that the only reasonable way to stop or avoid the attack was to use lethal force; and 3) you did not violate any duty to physically retreat from the situation.
Q: When might I be "at fault in creating the situation?"
A: A court would consider you to be at fault if you created the situation, unnecessarily prolonged it, or escalated the amount of force involved. In other words, you cannot claim self-defense if you started the fight, or if you continued fighting after the other party tried to stop or abandon the fight, or if you escalated the force involved by, for example, pulling a gun in a fistfight.
Q: How does a court decide whether I had reasonable grounds to believe
that I was in imminent danger?
A: Whoever is examining your claim of self-defense, whether it is the first police officer on the scene or the last juror, "steps into our shoes," taking into account your age, gender, physical condition, medical condition, training, etc., and looks at the objective facts to determine if you were reasonable in
concluding (your "honest belief") that you were in imminent danger of serious physical harm or death.
Q: Why would I have to prove that the only reasonable way to stop or avoid the attack was to use of lethal force?
A: The law considers the taking of a human life to be a last resort. To claim self-defense, you must establish that the only reasonable way you could have stopped or avoided the attack was to use of lethal force. In the law, this is sometimes called a "last resort" test.
Q: What is the "duty to physically retreat?"
A: Before using lethal force, the law says you must physically retreat from the situation, if you can do so without taking unreasonable risks. However, the law does not require you to physically retreat from your own residence, place of business or vehicle.
Q: What is a "stand-your-ground" law?
A: Typically, "stand your ground" is a phrase used to describe a self-defense law that does not require a duty to physically retreat in a threatening situation. This term is specific to each state's law, and in some states "stand your ground" describes laws that go farther to protect self-defense rights than
just removing a person's duty to physically retreat.
Q: What changes is Ohio considering to its self-defense laws?
A: Ohio legislators are considering House Bill 203, which would entirely remove the duty to try to physically retreat from the situation. The proposed legislation also states, affirmatively, that a person does not have a duty to retreat as long as that person is someplace where they may legally be present.
If H.B. 203 passes, you would have to prove, by a "preponderance of the evidence" that, in using lethal force against another person, you were properly acting in self-defense. Specifically, you would have to prove that: 1) you were not at fault in creating the situation; and 2) you had reasonable grounds to
believe and an honest belief that you were in imminent danger of suffering serious physical harm or death, and that the only reasonable way to stop or avoid the attack was to use lethal force. If this bill passes, you would no longer have a duty to physically retreat from the situation, as current Ohio law
requires.
This "Law You Can Use" column was provided by the Ohio State Bar Association. It was prepared by attorney L. Kenneth Hanson, of counsel at Firestone, Brehm, Wolf, Whitney and Young LLP in Delaware. Articles appearing in this column are intended to provide broad, general information about the law.
Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
Editor's Note: - The following "Law You Can Use" Consumer Information
Column, written by Buckeye Firearms Association Legal Chair Ken Hanson, is being provided by the Ohio State Bar Association to news outlets across the state. It has already been published at Akron.com.
Q: I've been hearing about "stand-your-ground" laws in the news. What does Ohio law say about using lethal force in a self-defense situation?
A: In Ohio, if you use lethal force in self-defense you must prove, by a "preponderance” (greater weight) of the evidence, that you were properly acting in self-defense. Under current law, in order to act in self-defense, you must prove: 1) you were not at fault in creating the situation; 2) you had an honest
belief and reasonable grounds to believe that you were in imminent danger of suffering serious physical harm or death, and that the only reasonable way to stop or avoid the attack was to use lethal force; and 3) you did not violate any duty to physically retreat from the situation.
Q: When might I be "at fault in creating the situation?"
A: A court would consider you to be at fault if you created the situation, unnecessarily prolonged it, or escalated the amount of force involved. In other words, you cannot claim self-defense if you started the fight, or if you continued fighting after the other party tried to stop or abandon the fight, or if you escalated the force involved by, for example, pulling a gun in a fistfight.
Q: How does a court decide whether I had reasonable grounds to believe
that I was in imminent danger?
A: Whoever is examining your claim of self-defense, whether it is the first police officer on the scene or the last juror, "steps into our shoes," taking into account your age, gender, physical condition, medical condition, training, etc., and looks at the objective facts to determine if you were reasonable in
concluding (your "honest belief") that you were in imminent danger of serious physical harm or death.
Q: Why would I have to prove that the only reasonable way to stop or avoid the attack was to use of lethal force?
A: The law considers the taking of a human life to be a last resort. To claim self-defense, you must establish that the only reasonable way you could have stopped or avoided the attack was to use of lethal force. In the law, this is sometimes called a "last resort" test.
Q: What is the "duty to physically retreat?"
A: Before using lethal force, the law says you must physically retreat from the situation, if you can do so without taking unreasonable risks. However, the law does not require you to physically retreat from your own residence, place of business or vehicle.
Q: What is a "stand-your-ground" law?
A: Typically, "stand your ground" is a phrase used to describe a self-defense law that does not require a duty to physically retreat in a threatening situation. This term is specific to each state's law, and in some states "stand your ground" describes laws that go farther to protect self-defense rights than
just removing a person's duty to physically retreat.
Q: What changes is Ohio considering to its self-defense laws?
A: Ohio legislators are considering House Bill 203, which would entirely remove the duty to try to physically retreat from the situation. The proposed legislation also states, affirmatively, that a person does not have a duty to retreat as long as that person is someplace where they may legally be present.
If H.B. 203 passes, you would have to prove, by a "preponderance of the evidence" that, in using lethal force against another person, you were properly acting in self-defense. Specifically, you would have to prove that: 1) you were not at fault in creating the situation; and 2) you had reasonable grounds to
believe and an honest belief that you were in imminent danger of suffering serious physical harm or death, and that the only reasonable way to stop or avoid the attack was to use lethal force. If this bill passes, you would no longer have a duty to physically retreat from the situation, as current Ohio law
requires.
This "Law You Can Use" column was provided by the Ohio State Bar Association. It was prepared by attorney L. Kenneth Hanson, of counsel at Firestone, Brehm, Wolf, Whitney and Young LLP in Delaware. Articles appearing in this column are intended to provide broad, general information about the law.
Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
